Long, Doris Estelle --- "Trade Secrets and Traditional Knowledge: Strengthening International Protection of Indigenous Innovation" [2011] ELECD 560; 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 19

Section Title: Trade Secrets and Traditional Knowledge: Strengthening International Protection of Indigenous Innovation

Author(s): Long, Doris Estelle

Number of pages: 42

Extract:

19 Trade secrets and traditional knowledge:
strengthening international protection of
indigenous innovation
Doris Estelle Long*


INTRODUCTION

At the turn of the last century, a missionary, anthropologist and long-time
scholar of the practices of the Hopi Indians, Reverend Heinrich (Henry)
R. Voth, was allowed to witness and photograph sacred ceremonial
dances as part of his study of the Hopi religion and culture. Such photog-
raphy remains generally forbidden even today. Disputes over the scope
of the oral understanding regarding the use of the photographs taken,
including in particular Reverend Voth's right to publish them, and the
extent to which the Hopis actually agreed to have such practices recorded
by an outsider (or, more specifically, the extent to which the Hopis had the
practical power to refuse Voth's request), remain ongoing. What remains
undisputed is that the ceremonies photographed, described and published
by Voth are considered sacred, and that the knowledge regarding the
conduct of such ceremonies remains closely held among certain members
of the tribe. Commercialization of such ceremonies is prohibited.1
The history of indigenous groups and the protection of their secret prac-
tices is filled with such stories of misunderstandings, mistaken trust and
incomplete legal protection. Such misunderstandings have the potential to
expand exponentially as the commercial value of indigenous-held knowl-
edge is increasingly recognized in such diverse areas as biogenetics, agri-
culture, sustainable development and environmental protection (among



* Professor of Law and Chair, Intellectual Property, Information Technology
and Privacy Group, the John Marshall Law ...