The People’s Trade Secrets?
The content of administered public school exams, modifications made by a government to its voting machines, and the business strategies of government corporations should be of interest to the public. At a minimum, they are the kinds of information that a government should allow its citizens to see and examine. After all, the public might have some legitimate questions for its government: Is that voting machine working so that my vote gets counted? Is that public school examination fair and accurate? To whom or what is that government agency marketing and are kickbacks involved? One would think that the government should have to publicly answer such questions, at least in a democracy. While initially the above does not sound too controversial, the law has made it problematic. Getting access to the information that would answer the above questions may not be easy because the person requesting the information might have to show that the information is not a government trade secret before it can be disclosed. Today, the government of the people can keep information from the people by way of the commercial, intellectual property law of trade secrecy. Strangely, the people – citizens of states and the United States – apparently have trade secrets that they themselves cannot see. In other words, there is information that the government itself creates on its own (a “government trade secret�?) and that courts or attorneys general have found meet the applicable definition of a trade secret. This article examines whether a government trade secret should be allowed to exist, and, if so, whether governments should be allowed to shield government trade secrets from public disclosure. Importantly, I am not focusing here on trade secrets shared with government by private industry or created by private industry on the public’s dime. That topic was the focus of an earlier article. In Secrecy, I examined the question of whether private entities engaged in the provision of public infrastructure, like voting machines and public wifi Internet access, should be allowed to shield information regarding their products and services from public disclosure by way of trade secrecy. This is a question of applying democratic values like transparency and accountability to private entities, the practical effect of which is in direct conflict with the purpose of trade secrecy, namely, keeping information private. I concluded that, as applied to public infrastructure, trade secrecy should not be utilized by private entities engaged in its provision. While the conflict here is similar – transparency versus secrecy – the policy considerations are quite different. For example: do we need to incentivize innovation in government by way of trade secrecy? Should the government be in the business of leveraging competitive advantage in order to generate revenue or, much worse, for an unstated ulterior motive like avoiding public scrutiny? If the government is allowed to consider cost-effectiveness in its operations, should trade secrecy be the mechanism that allows for this consideration? As the application of trade secrecy by government is a very recent development (at least in the United States) and there a very few reported decisions dealing with the issue, its ramifications have yet to be explored in detail. I examine these questions and issues by explaining how trade secrecy and freedom of information laws interact, emphasizing the theoretically discordant nature of the government trade secret. In part two, I examine the basic issues involved in finding and maintaining a trade secret. In part three, I discuss several scenarios where government trade secrets have been asserted with questionable basis in the law, such as a county’s modification of voting machines, and/or where government trade secrecy has prevented the public from accessing valuable information, such as a public school system’s examinations and the minutes of public corporation board meetings. Additionally, I posit reasons why we may think that the problem of government trade secrets may be growing. In part four, I outline the basic principles of transparency, accountability and democratic governance. In part five, I discuss possible solutions to the problems discussed, and conclude that trade secrecy is a poor fit in government for two primary reasons: (a) the utilitarian basis for trade secrecy does not fit well when applied to government, and (b) transparency and accountability, two core democratic values, are severely undermined when trade secrecy is used to prevent disclosure of otherwise public information.
IP Nationalism: Addressing the COVID Crisis and Beyond
This Article coins and explains the phenomena of IP nationalism. Just as some nations engage in vaccine nationalism by hoarding limited COVID vaccines, so, too, some nations are hoarding critical knowledge and technology by resisting modification of usual IP rules during the pandemic, such as a proposed waiver of international IP obligations. Countries that are home to IP-owning pharmaceutical companies often benefit from strong global IP rights, since that usually improves domestic GDP for IP-intensive products such as drugs. Even nations without strong IP exports may embrace IP nationalism because current international laws provide economic benefits to these countries in terms of increased trade for non-IP goods. As this Article explains, countries that embrace IP nationalism raise incomplete, or affirmatively false arguments asserting that barriers to accessing medicines are primarily caused by non-IP issues, which hides how IP and IP nationalism are nonetheless creating barriers to access. IP nationalism is harmful. Failure to modify traditional IP rights has contributed to inadequate supply of COVID vaccines, which will likely result in more variants that threaten global health and suppress global economic recovery due to disruption of global supply chains. Even outside a pandemic, where IP nationalism could economically benefit countries with IP-intensive exports, it still creates other harms. For example, IP nationalism results in strong global IP rights that often make necessary goods, such as life-saving medicines, unaffordable to many people worldwide. Furthermore, these rights primarily promote innovation that is most profitable, rather than what is most socially desirable. For example, companies are incentivized to pursue and market treatments of questionable utility, such as the newly approved Alzheimer’s drug that may not even be effective, simply because they generate substantial profits. In contrast, vaccines beyond COVID and antibiotics, though desperately needed by all, are generally not pursued due to low profitability. This Article argues that IP for essential treatments such as COVID vaccines should be considered “global public goods” available to all, contrary to beliefs held by supporters of IP nationalism. This would be an admittedly radical, yet necessary change from current norms. First, this could encourage countries to embrace the proposed waiver of international IP rules for COVID treatments. Although waiving traditional IP rights will not immediately increase vaccine supply, it would permit available and interested companies to expand vaccine capacity and create competition that would likely increase supply and lower costs, allowing poorer countries greater access to the vaccine. In addition, recognition of IP covering pandemic treatments as global public goods would help avoid replicating the current vaccine apartheid in subsequent pandemics and begin to counteract well-documented racial and ethnic disparities regarding access to medicines.
A Review of Existing Cogeneration Facilities in Canada
Sponsors of CIEEDAC: Greenhouse Gas Division of Environment Canada, Natural Resources Canada, Aluminium Industry Association, Canadian Foundry Association, Canadian Gas Association, Canadian Petroleum Products Institute, Canadian Steel Producers Association, Cement Association of Canada, Chemistry Industry Association of Canada, Forest Products Association of Canada, Mining Association of Canada, Pacific Institute for Climate Solutions CIEEDAC