protection as trade secrets. Under the American Law Institute's widely property. Nevertheless, all economically valuable secrets are not afforded cited (1939) definition (see Cheung, 1982:42; Bender, 1986:915),
A trade secret may consist of any formula, pattern device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.... It differs from other secret information in a business ... in that it is not simply information as to single or ephemeral events .... A trade secret is a process or device for continuous use in the operation of the business.
How is it possible for society to recognize and enforce a person's claim to hold property in something that is quite specific but must remain less than fully described and actually be hidden from public view? A further problem is that in the law of real and personal property, as well as in the areas of intellectual property law dealing with patents and copyrights, designating something as "property" has a particular meaning. It usually means that the possessor has the exclusive right to use or enjoy the thing, or to assign it to others for their exclusive use or enjoyment (see, e.g., Friedman et al., 1991:61-62). This special sense of the term is not satisfied in the case of a trade secret, because even when the possessor has taken measures to preserve its secrecy, the law provides no remedy if the information is disclosed by accident or uncovered through deliberate, socially conscionable ("fair") actions of others.
Unlike patent and copyright law, trade secret law (even when given statutory structure) is rooted in principles of common law, including theories of contract and tort, as well as property concepts (see Jager, 1991:49). Indeed, the general tendency is to de-emphasize rights to property in the information held secret and to protect its originators indirectly by enforcing relationships of confidentiality that have been established implicitly or through explicit contracts. Trade secrecy, thus, can be viewed as a means of increasing the security of the "default option." It offers a recourse that may be socially as well as privately valuable in circumstances in which patents and copyrights are unavailable, ineffectual, or unattractive means of appropriating the economic benefits deriving from the generation of new knowledge and its reduction to concrete practices. The relevant legacy from the common law of master-servant relations is the recognition of society's interest in the formation of relationships of trust between employers and their employees (and between principals and their agents). Because in many instances it is much more efficient, and in some circumstances absolutely essential, to give employees access to information that they could use to the disadvantage of their employer, trust in the confidentiality of such disclosures is desirable for all who would benefit from having the work done. Yet the original common law contexts, typically, were ones in which it was the master who had a valuable secret to safeguard. Given these historical