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KISS AND TELL: A FEMINIST PERSPECTIVE ON THE NEED FOR A TRADE SECRETS LAW IN NIGERIA’S INFORMAL ECONOMY

KISS AND TELL: A FEMINIST PERSPECTIVE ON THE NEED FOR A TRADE SECRETS LAW IN NIGERIA’S INFORMAL ECONOMY

Esther Ekong is a doctoral candidate at the University of Uottawa. Her research interest is in Intellectual Property Law.
Email Address: oekon035@uottawa.ca

 

Trade secrets law has aptly been described as the ‘orphan child of intellectual property (IP) scholarship’ principally because it tends to fall in the cracks between various legal regimes such as labor laws, intellectual property (IP) law, contract law, etc. While there seems to be widespread agreement on the basic contours of the law and agreement on the effect of the law, there is no consensus on how to fit it into the broader framework of legal doctrine. This lack of consensus has contributed to inconsistent treatment of the basic elements of a trade secret cause of action (kiss and tell) and uncertainty as to the relationship between trade secret laws and other causes of action. In developing countries like Nigeria where trade secrets may be said to be the default mode for protecting IP, it is important to formulate a trade secret law, distinct from the law of tort and contract.

TRIPS provides that natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices, subject to stated conditions. However, even TRIPS does not provide a detailed regime for the protection of trade secrets presumably because of substantial variation between countries in the means employed to provide the TRIPS-mandated protection.

While some countries like the United States have implemented express legislation,  in others, like Nigeria, trade secret obligation is met by laws that include misappropriation through such means as a breach of contract, inducement of others to breach contracts, and acquisition by third parties of information known to be disclosed dishonestly (or where it was negligent not to know). This variation can affect the ways businesses and workers conduct their affairs and thus there are reasons to believe that the legal protection of trade secrets may have important economic effects. This is particularly so for developing countries.

The last few decades have witnessed a revolution in the aspirations of developing countries which has led to questions of what values incentivize creative activity in the developing world and whether the “classic intellectual property categories accommodate the innovation or creative processes associated with non-Western traditions”. At the center of these questions must be added, the woman question – do the classic intellectual property categories accommodate the innovation or creative processes of women innovators? As questions arise about the role of IP protection in developing countries, it is crucial to bring women entrepreneurs into the discussion because of the pivotal role they play in the economy. Nigeria has the highest number of women entrepreneurs in the world and most of these women entrepreneurs are found in the informal sector which is radically contributing to economic output and employment.  Considering the need for IP protection to play a positive role in development, “in contexts where high levels of collaboration and openness are integral to knowledge production”, it is important to craft IP laws that take into account bottom-up approaches to increasing innovative capacity in the country with close consideration of the development level of the country.

This is relevant for women entrepreneurs who operate mostly in the informal sector and carry out innovations that may not fit in with the classical requirements of IP such as originality, newness, authorship, tangibility, etc. Most inventions that are ineligible for patents or other IP protection are protected as trade secrets. Consequently, trade secrets are perhaps the most widely used IP protection in informal economies. In order to cushion the inability to use other formal forms of intellectual property rights, most entrepreneurs in the informal sector typically rely on trade secrets to protect their IP. For many small and medium-sized enterprises  (SMEs),  trade secrets have several advantages over patents–particularly lower cost and the lack of a registration requirement —  making them the default mode of protection for intellectual capital.  Also, unlike patents and trademarks that are registered for a period of time, a trade secret remains the exclusive property of the owner in perpetuity unless their status is compromised.

These attributes are particularly endearing to women entrepreneurs in Nigeria. Despite the very significant role women entrepreneurs play, their businesses lack financial security which in turn stymies their economic growth. This is a result of various factors including limited access to formal finance mechanisms, high cost of finance (high-interest rates), and other infrastructural deficiencies. In addition, women are shut out of many economic activities because of their lack of access to intellectual property (IP) protections. This is not because they are women per se, but because IP mechanisms were not designed to include traditionally female occupations. It is indeed argued that gendered conceptions of credit and reward are written into the framework of IP laws and that IP laws reinforce traditional gender roles and exclude women.

Other scholars however argue that over-protection of IP may result in innovators and creators being unable to organize collaborative relationships in strategically optimal ways, which would hinder development. Others also argue that whatever purposes are served by trade secret law can be served just as well by the common law doctrines that underlie it. However, if trade secret law is simply a compilation of bits and pieces of other laws there would be no need to speak about trade secret law in the first place and how can one justify the parts of that law that don’t track their common law sources, argues Graves? According to Graves, “trade secrets are best understood not as applications or extensions of existing common law principles (warranted or unwarranted), but as IP rights”. They serve the same purposes as patent and copyright law – they encourage innovation and the disclosure and dissemination of that innovation- even though they may achieve this purpose in different ways. Having a clearly defined trade secret law will in fact reduce investments in secrecy and encourage the dissemination of the secret to more people who can make productive use of it. The outcome would be the collaboration and openness needed for today’s informal economies to thrive.

There is, therefore, a need to pass a distinct trade Secret legislation in Nigeria. Such legislation would clearly define the contours of trade secret law by confronting the tension between allowing employees in informal sectors to freely utilize their knowledge, while at the same time protecting their former employers’ investments in innovation. A locally crafted trade secret law would be made flexible enough to provide a responsive continuum of protection that meets the different requirements for protection faced by different technologies in a range of industries, especially in an informal economy like Nigeria. The United States, recognizing the importance of trade secrets set an example by passing both the Uniform Trade Secrets Act (UTSA) and Defend Trade Secrets Act. The policy behind the release of the UTSA was the concern that state trade secret law had not developed satisfactorily, notwithstanding the importance of this law on interstate business.

The importance of crafting local IP laws that are need-specific certainly cannot be overemphasized.  Given trends toward maximalist IP policy, it is now more important than ever for Nigeria to craft and pass her own local trade secret law that will carefully consider the implications of the law of trade secret in a nuanced manner that takes into cognition the specific needs of Nigeria’s mostly informal growing economy, densely populated by women entrepreneurs. This “orphan child’ of IPRs is in reality the oldest form of  IP  in the world and, in the 21st century, trade secret assets will become the biggest economic driver. Nigeria should take proactive measures to protect its informal economy by passing a unique trade secret law that may adequately provide for ‘kiss and tell’ causes of action.

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