The protection of intangible cultural assets by trade secrets and unfair competition law

Abstract

Every society offers to protect and preserve diverse narratives that form the foundation of its cultural identity. Secrecy is an age-old tool for protecting traditional knowledge and cultural practices. However, the transformation of knowledge within technological frontiers has led to examining the effectiveness of secrecy as a tool to protect cultural knowledge. The divergence between the system of secrecy practised by Indigenous communities and the legal system of undisclosed information and trade secret laws protected through unfair competition seeks a deeper understanding of the triadic relationship between cultural rights, secrecy and competition laws. Unfair competition law offers practical solution to the needs of Indigenous communities by preventing misappropriation and imitation of cultural heritage-based products. However, unfair competition law, being primarily focused on market regulation, has limited implications for cultural innovations that have less value transformation. Transcending these realities, trade secrecy and unfair competition law may have a potential role in safeguarding cultural innovation.