The Blue Footed Booby
Why IP Laws Matter
Jeremy Ben-David, Founder, Managing Partner
We often hear about the restrictive nature of intellectual property laws. Many object to the cost of patented life-saving medicines; others object to copyright laws intended to prevent unauthorized copying of works of art, music and the like. Yet others object to the ability of non-practicing entities to purchase patents with the sole intention of suing third parties, so-called āpatent trollsā.
This is a subject that I have explored in previous pieces. While not perfect, IP laws are intended to provide a framework which facilitates the development and implementation of inventions and artistic works in a way which enables society to benefit from them, while granting legal protection to their inventors and creators. I know that not everyone is convinced. However, rather than trying to persuade you, I would like to approach this question from a totally different perspective, by way of an analogy to laws governing an area to which we can all relate, namely, ecological conservation.
I recently had the once-in-a-lifetime experience of visiting the Galapagos Islands, an equatorial archipelago located in the Pacific Ocean, 965 km west of Ecuador. We spent four glorious days exploring the islands, their beaches and mangroves, and the waters surrounding them. While most of the animals that we saw were all animals that we had seen in zoos, here we had the opportunity to walk among land and marine iguanas, sea lions and giant tortoises; to see giant sea turtles, baby sharks and schools of green mullet; and to see large numbers of pelicans, swallow-tailed seagulls, frigates and ā yes ā the blue footed boobies, the iconic bird of the Galapagos.
So, you might ask, what does any of this have to do with IP laws? The natural sights, as beautiful as they are, are natural; they are not man-made inventions. But that would be missing the point.
Consider this: despite being well known, and a feature in the bucket list of many, all of the above exotic creatures still exist in their still pristine habitats. They are there for all to see; yet they have not been overrun and destroyed by people. Bear this in mind as you read on.
One species that I omitted to mention above is the albatross, one of the few residents of these islands that is migratory. Remarkably, its behavior changes in accordance with its geographical location. The only place that they are not afraid of people is in the Galapagos. In other places, so we were told, they view humans as predators and they thus keep their distance. But once they come home to the islands, they are very approachable, like all of the other Galapagosian animals and birds. And this is part of the point.
So why exactly have the islands not been overrun by people, and why are the islandsā non-human inhabitants not fearful of people?
Iāll attempt to explain.
The islands were discovered by human beings nearly 500 years ago. However, the archipelago became the GalĆ”pagos National ParkāÆ64 years ago under the direction of the newly formed GalĆ”pagos National Park Directorate (GNPD)āÆas Ecuadorās first protected area. This was established by Emergency Executive Decree No. 17, enacted by the Ecuadorian government on July 4, 1959. This historic decree designated 97% of the archipelago's land area as Ecuador's very first national park, leaving just 3% for pre-existing human settlements.
That means that, while visitors, such as us, are able to walk among the native creatures of the islands, we can do this on only 3% of the area of the islands. This means that 97% of the islands and their non-human inhabitants have likely never seen a human face, or felt a human footprint or any other human influence. And even when visiting the 3%, the law imposes restrictions regarding the introduction of foreign species and human garbage, and the removal of samples of soil, rock or animals from the islands. These and other restrictions are regulated by strictly enforced laws, with appropriate sanctions.
Speaking from experience, I can testify as to my initial reaction when first being told about these laws. No one likes being told what to do, and I asked myself whether these laws werenāt somewhat draconian. After all, why should I be restricted to visiting only 3% of the islands? Donāt we, as human beings, have the right to go anywhere and, if we want to, to take just a tiny souvenir? Why are there so many rules about what I canāt do? It all seemed to me to be very negative and restrictive.
But that was before I saw the beauty. Before I saw the shape of the huge turtles in the water, only a couple of meters from our dinghy. It was before I saw the pelicans perched on the trees nearby, or the very first view of a sealion sunning itself on a nearby rock. I then realized that while we visitors, here for a few moments and then gone, were prevented from leaving potentially destructive traces of our visit even on the tiny portion of this reserve that we were allowed to visit, the draconian measures actually enabled us to experience these virgin territories and their exotic inhabitants up close. We could witness the beauty of Creation and bathe in wonderment, while appreciating the rules that protected it from us.
And that, quite possibly, is as close as you may get to a perfect analogy for many types of laws, including IP law. For IP law does not prevent society from benefiting from patents and artistic works. Quite the opposite is true. It aims to maintain the rights of those who have invested so much of their time, energy, money, and spirit, into developing and creating, while enabling society at large to benefit, without being permitted to illegally assume ownership. For me, this simple analogy is a powerful truth, and one which pervades many areas of life and law, not the least of which is our chosen profession.
