Trade secrets may be applied for the protection of some components of TRM, if the information is kept secret and is of actual or potential commercial value. Trade secrets are commonly protected under the doctrine of unfair competition,119 which provides legal protection against commercially dishonest practices, provided that the knowledge holder takes reasonable steps, under the circumstances, to keep the knowledge secret.120
119 See, e.g. article 39.1 of the TRIPS Agreement.
120 See article 39.2 of the TRIPS Agreement.
In some cases, traditional knowledge, including healing practices and materials, are deliberately kept secret by the few individuals in the community privy to the knowledge. Often the knowledge is kept secret because of the place it holds in cultural concepts and practices - such as rituals and magic.
Trade secrets law may be suitable for the protection of TRM knowledge, due to a number of its characteristics.
First, conceptually, the protection of trade secrets does not presuppose the granting of property rights, but simply the right to take actions against whoever has acquired commercially valuable secret knowledge through unfair commercial practices. This approach may be compatible with the view prevailing in many communities, that any form of appropriation of their members’ knowledge is inappropriate.
Second, registration is not needed in order to acquire the rights conferred under trade secrets law. This is particularly important for TRM holders, since in many cases they are neither equipped for, nor inclined to comply with registration formalities, and/or unable to bear the ensuing costs.
Third, though the protected knowledge should be commercially valuable, trade secrets law does not require establishment that the knowledge is “new” or involves an “inventive step” as required under patent law. In some jurisdictions,121 trade secrets protection may be extended to knowledge of potential commercial value.122 This extension may permit the protection of TRM which currently has no commercial application, but which may become used for such purposes in the future.
121 See, e.g. the North-American Free Trade Agreement (NAFTA), article 1771 (1).
122 See, e.g., NAFTA article 1711.1 (b).
Fourth, unlike other forms of IPRs, trade secrets protection lasts as long as the protected knowledge is not divulged. This feature is especially appropriate to the nature of TRM that has remained secret and must remain so if cultural norms are not to be violated.
Finally, in the case of TRM, the possession of knowledge is often of a collective nature. While communities do not generally fall under the category of “legal persons”, nothing would prevent a Member country from extending trade secrets protection to information held by such communities. As noted by GRULAC,
“Acknowledgement of the fact that secret traditional knowledge may be protected by means of unfair competition law will make it possible for access to that knowledge, its exploitation and its communication to third parties to be monitored. Control over the knowledge, and regulation of the manner in which it may be acquired, used and passed on, will in turn make possible to arrange contracts for the licensing of secret traditional knowledge and derive pro from its commercial exploitation” (GRULAC, 2001, p. 4).
Of course, as in the case of other IPRs, trade secret holders need the capacity, including financial, to enforce their rights through generally costly and lengthy court procedures. This is not, a minor point when considering not only the availability of protection but its possible efficacy in protecting the interests of TRM holders.123
123 See also Section IV.f below.