Reichman, Jerome H. --- "How Trade Secrecy Law Generates a Natural Semicommons of Innovative Know-how" [2011] ELECD 549; in Dreyfuss, C. Rochelle; Strandburg, J. Katherine (eds), "The Law and Theory of Trade Secrecy" (Edward Elgar Publishing, 2011)

Book Title: The Law and Theory of Trade Secrecy

Editor(s): Dreyfuss, C. Rochelle; Strandburg, J. Katherine

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847208996

Section: Chapter 8

Section Title: How Trade Secrecy Law Generates a Natural Semicommons of Innovative Know-how

Author(s): Reichman, Jerome H.

Number of pages: 16

Extract:

8 How trade secrecy law generates a natural
semicommons of innovative know-how
Jerome H. Reichman*


It is both disappointing and exhilarating to re-examine the functions
of trade secrecy law for this volume. The disappointment stems from
encountering many of the same old questions that Reichman, Samuelson
and Scotchmer have addressed over a 20-year period.1 The exhilaration
comes from rereading that brilliant article by Samuelson and Scotchmer
on reverse engineering at some distance, and realizing how many questions
these collective efforts managed to answer. So let me try to set the record
straight in a few short pages, beginning with the question of whether or
not it is better to treat trade secrecy law as a form of intellectual property
law rather than as a business tort under unfair competition law.2


I. TRADE SECRETS AS A FORM OF
INTELLECTUAL PROPERTY

The logical point of departure is to observe that `intellectual property' has
never been just about exclusive rights in intangible, non-rivalrous crea-
tions. It has always included conduct-based liability rules found in some
sui generis regimes, as well as absolute liability rules that confer only a


* Bunyan S. Womble Professor of Law, Duke University School of Law,
Durham, North Carolina.
The author gratefully acknowledges the support of the National Human
Genome Research Institute and the Department of Energy (CEER Grant P50
HG003391, Duke University, Center of Excellence for ELSI Research).
1
J.H. Reichman, Charting the Collapse of the Patent­Copyright Dichotomy:
Premises for ...