The Qur’an contains various ayat (verses) that disapprove of the concealment of anything that is good for society.¹² With regard to ilm (knowledge), it has been reported that the Prophet warned Muslims against the concealment of knowledge as it is the common property and the shared heritage of all humankind, the owner of which is God.¹³ The Prophet is reported to have said ‘the one who conceals knowledge would appear on the day of resurrection as reined in a bridle of fire.’¹⁴ A broad initial reading of this hadith (saying) suggests that every person who attains knowledge that would benefit other members of the society must disclose such knowledge and share it with them without any restrictions. This hadith is particularly relied upon by some scholars to reject copyright protection, as it might entail the concealment of knowledge.¹⁵

Moreover, Al-Mundhiri (d. 1258 CE) reports several ahadith (sayings) in which the Prophet encourages sharing and the dissemination of knowledge.¹⁶ In one of these ahadith the Prophet considers knowledge which is being disseminated the best form of saddaqah (charity).¹⁷

Does IP fall within the prohibition of the concealment of knowledge according to the traditions of the Prophet (pbuh)? In other words, does the protection of knowledge underlying patents and copyright lead to the concealment of knowledge from an Islamic perspective?

The modern concept of IP is based on property rights over ideas or forms of expression that give the right holder time-limited monopolies.¹⁸ These monopolies are embodied in the form of exclusive rights over the subject matter (which could be thought of as knowledge) to exclude others from using the intellectual products without permission or monetary compensation. According to some commentators this might contradict the Islamic prohibition of the concealment of knowledge.¹⁹

However it is inaccurate to conclude that IP leads to the concealment of knowledge in the meaning of the above-quotedhadith (saying of the prophet).²⁰ A closer look into the mechanisms of IP reveals that the overall structure and rules of IP does not lead to the concealment of knowledge which is prohibited under the hadith.²¹

For instance, the basic forms of IP (copyright and patent) contain mechanisms that allow for knowledge to be disseminated in exchange for compensation to the rights holder for a limited period. Furthermore, in a wide range of circumstances, knowledge underlying IP rights can be disseminated without the consent of the rights holder and without any compensation.

With regard to copyright, there are various mechanisms within the copyright system that operate to prevent the type of concealment mentioned in the hadith. For instance:

On the other hand, the patent system has its own mechanisms which are supposed to ensure that the knowledge underlying the patent is disseminated. These include:

Individuals who use their intellect to write a software program or invent a machine should be entitled to benefit financially from their creations. And to do so, a certain degree of protection is required, to be able to prevent others from making use of the intellectual item in a way that prejudices the legitimate interests of the creator. However, this protection does not necessarily prevent others from accessing the relevant intellectual creation. Accordingly, the prohibition against the concealment of knowledge in Islamic Shari’a should not involve the prohibition of transactions involving knowledge²⁸ as it is possible to both disseminate knowledge and take money for it simultaneously.²⁹

Nevertheless, this does not mean that the current regulation of IP is fully consistent with Islamic Shari’a principles, including those aspects related to the dissemination of knowledge. Islamic Shari’a’s prohibition of the concealment of knowledge and encouragement of its dissemination may raise certain challenges for the current regulation of IP as laid down in its international framework.³⁰

The scope of protectable subject matter under the international and Western IP systems is very broad when compared to what could be accepted as protectable subject matter according to Islamic Shari’a. Generally, the scope they provide for protectable subject matter is limited only by public order and morals³¹ which in themselves are loose concepts, and substantially affected by the liberal understanding of personal freedom.³² Islamic Shari’a has its own concept of morality, which may lead to reduce the scope for protection for various intellectual products.³³ This section examines the implications of Shari’a’s sources on the subject matter of copyright, patent and trademark.

The word maysir is derived from the word yusr, which literarily means easy.⁵¹ The Qur’an encourages Muslims to gain their livelihood (rizq) through work. Therefore it prohibits acquiring money without labour, as in gambling.⁵²

Some forms of intellectual creations could yield enormous revenues for the creator who might have spent little effort and time in making the relevant intellectual product. For example, a writer of a novel might spend a couple of months writing a novel which would bring hundreds of millions as revenues through the sale of books or from its derivative works. The same thing applies to an inventor of a machine or process who might acquire disproportionate profits to the initial investment made by the inventor through licensing or rent seeking practices.⁵³ The question which arises here, does the easy profit generated in situations such as these falls within the scope of maysir?

Some commentators observe that ‘the prohibition against [maysir] may be relevant in IP transactions if the profit generated is significantly disproportionate to the time and money invested in developing and marketing the creation’.⁵⁴

Nevertheless, it could be argued that the Qur’an encourages working to generate wealth and does not impose any restrictions on individuals so long as they seek profit through legitimate methods of income of which mental work is one as will be discussed below.⁵⁵ In the majority of cases the right holder of an intellectual creation does not generate income without incurring responsibility in the form of renewal fees, taxes, and compensation where their creations cause harm to others. It is also clearly established in Islamic scholarship that with certain degree of responsibility, the well-known rule of Islamic Shari’a ‘al-kharaj bi al-dhaman’ (reward comes to those who could be held accountable) applies. One relevant aspect of this rule basically means that every person who assumes responsibility over something has the right to claim whatever benefits might come from the exploitation of that thing.⁵⁶ When applied to IP, this means that if the right holder could be held accountable for any harm that might be caused by his intellectual creation, he should benefit from the fruits of that creation regardless of the quantity of the generated benefits.

It is a fundamental rule within the system of civil transactions in Islamic Shari’a that the contracting parties must have complete knowledge of the countervalues (subject matter of the contract) to be exchanged in their transaction. The chief reason for establishing this rule is to protect the weak party in a contract against any exploitation that might occur by the strong party.⁵⁷

Accordingly, Islamic Shari’a prohibits uncertainty (gharar) in contracts and requires that all transactions should be devoid of any speculation or risk. Nabil Saleh observes that to avoid, gharar in transactions should be no want of knowledge (jahl) regarding the existence of and the characteristics of the exchanged countervalues or the identification of their species or knowledge of their quantities or the date of future performance, if any. The parties also should have control over the exchanged countervalues.⁵⁸ The absence of these conditions would result in the transaction being invalid.⁵⁹ This strict approach, which requires complete certainty about the subject matter of the contract, might negatively affect the validity of certain transactions involving IP.

For instance, when licensing trade secrets, according to Shari’a the parties must have complete knowledge regarding the subject matter, which means that the licensor must disclose to the licensee all the relevant information. This would be problematic as the subject matter is the information itself, which, if disclosed, would have no value and might deter the potential licensee from concluding the contract.⁶⁰

There is another example related to publication contracts. Abu Al-Hassan Al-Nadawi (a member of International Islamic Fiqh Academy) maintains that a publication contract falls within the prohibition of gharar. ⁶¹ In certain circumstances an author does not know in advance the exact monetary consideration that will be paid to her/him at the time of concluding the contract, as this is determined according to external factors such as the acceptance of the book in the market and the number of copies sold. This leads to uncertainty in relation the countervalues of the publication contract (copies to be sold and monetary compensation).⁶²

A publication contract is a transaction which involves copyright. If there is gharar in such a transaction then the Islamic prohibition of gharar applies to that specific transaction and should not be generalised to be seen as objection to the IP system. This issue is dealt with below.

As is the case with mayser, gharar does not constitute a critical objection against Islamic Shari’a’s recognition of IP. If a dispute arises with regard to gharar in a trade secrets or publication contract, the general principles of contract law in Islamic Shari’a should be applied on case by case basis.

It can be understood from the various objections to IP considered above that there is no serious conceptual conflict between Islamic Shari’a and the recognition and protection of IP.⁶³ However, there are certain injunctions and principles in Islamic Shari’a which may limit the scope of the protectable subject matter or invalidate certain transactions related to IP.

The concept of mulk (property) under Islamic Shari’a includes both tangible and intangible assets. Since IP rights are intangible assets, they can be considered as mulk worthy of Islamic Shari’a’s strict protection of private property.⁶⁶

Several commentators have considered the position of intangibles (manfa’ah) within Islamic Shari’a.⁶⁷ Professor Al-dereni, who studied the four main schools of Islamic law (Hanafis, Malikis, Hanbalis and Shafies) asserts that the majority of those schools (Malikis, Hanbalis and Shafis) accept intangibles as a subject of ownership (mulk), as for tangible property.⁶⁸

Only the classical scholars of the Hanafi School of law reject intangibles as a form of property. This is because they consider physical possession as a fundamental requirement to regard anything as property. Therefore, they only accept tangibles as mulk.⁶⁹

Professor Al-Derini further argues that ‘[t]here is nowhere in the Holy Qur’an, the Sunnah, nor in any other source of Islamic Shari’a that you will find a text that states [in a direct or in indirect way] that intangibles are not a subject of property’.⁷⁰

An example of the classic juristic acceptance of intangibles in Islamic Shari’a can be found in the writings of the distinguished Muslim scholar, Imam al-Qarafi (1260 CE), who states in one of the most comprehensive works of Islamic jurisprudence (al-Furuq) that the concept of mulk (property) includes intangibles.⁷¹

Husain Shalgammi argues that the opinion of the majority of Muslim scholars (which recognises intangibles as a form of property) is worthy of consideration as it can be extended to encompass IP rights.⁷² This is because the intangible right of IP is a form of usufructuary right (manfa’ah),⁷³ and since there is no authority in the sources of Shari’a denying protection for manfa’ah, legal analogy (Qiyas) could be used to encompass IP under the concept of manfa’aa and therefore recognises it as mulk. ⁷⁴

To sum up, the concept of mulk under Islamic Shari’a does not only include tangible assets, it also encompasses intangible assets. Therefore, extending Islamic Shari’a’s recognition to IP based on its recognition of manfa’ah is ‘methodologically correct’.⁷⁵

Through its main sources, Islamic Shari’a calls upon Muslims to work to create wealth and enhance the welfare of the community. The Qur’an advises Muslims to ‘seek from the bounty of Allah’.⁷⁶ The Prophet (PBUH) himself used to trade for his family and praised trade that leads to acquiring wealth for the benefit of all members of the society.⁷⁷ There were no limits to wealth generation except that it should come from legitimate sources and contribute to the good of all.

IP is granted to legal persons to ensure that any person who spends time and effort in developing something useful to humankind is given a chance to benefit from their creation. However, the ultimate aim is to ensure the innovation within the society is encouraged and boosted as it is fundamental to wealth generation in society. A certain level of IP protection is needed to create ‘new technologies, products and services, describe new ways of doing things and expand the cultural richness of the society’.⁷⁸

Accordingly, IP generally meets one of the highest objectives of Islamic Shari’a, that is, the preservation of wealth for humankind and maintaining the welfare of the community. This means that adequate protection for authors, inventors and trademark owners would be compatible with and encouraged by Islamic Shari’a.

Islam’s appreciation of labour (aml) has been used to justify the recognition of ownership over ideas.⁷⁹ Various verses in the Qur’an⁸⁰ and Sunnah encourage and praise labour.⁸¹ In this context, the Prophet (pbuh) is reported to have said: ‘No one ever ate better food than from the work of his own hands; and Allah’s Prophet David used to eat from the work of his own hands’.⁸² This appreciation of the work of the hand necessitates the protection of its fruits. Because labour is considered to be a legitimate source of acquiring property, the property which stems from labour should, accordingly, be respected. Does the concept of labour in Islam include mental labour?

Azmi contends that ‘mental labour, in any case, should not be treated differently from any other kind of physical labour’⁸³ as the term labour in Islam is broad and flexible enough to include physical as well as mental exertions.⁸⁴

The fact that the main sources of Islamic Shari’a do not directly or indirectly require the term ‘labour’ to be confined to physical effort supports this conclusion. In cases where there is no textual authority in a given issue, the Islamic jurisprudential rule of al-asl fi al ashya al ibaha ⁸⁵ (permissibility is the default status in legal affairs) applies. Applied here, this rule would mean that labouring on ideas is permissible according to Islamic Shari’a and the fruits generated from such labour should be protected in the same manner as the products of physical labour. This provides additional support for the recognition and protection of IP.

Islam recognises that the creative act of making something useful could be a means of acquiring ownership.⁸⁶ It is established in Islamic jurisprudence that if a person occupies an unclaimed piece of land for a certain period of time and spends effort and money to develop it and exploit it in a productive and fruitful manner; he or she will have the right of ownership over that land. This injunction finds its origin in a prophetic hadith (saying) which states that ‘whoever revives a dead/vacant piece of land shall own it’.⁸⁷ The rules covering this means of ownership are comprehensively organised in the classical works of Islamic jurists under the title of ihya al-mawat (developing or improving vacant land). This concept (ihya al-mawat) reflects Shari’a’s appreciation of all human endeavours that amount to create new things or develop and improve existing things for the benefit of humankind.⁸⁸

Accordingly, creative individuals who apply their intellect to produce something unique or put their efforts into a copyrightable material, an invention or a trademark that distinguishes their products or services are no less worthy of legal protection than their counterparts who develop a vacant land. They are probably more worthy of protection than those who develop vacant land given the increasing importance of the information economy and the broader advantages of intellectual products over physical ones.

If the concept of aml (labour) in Islamic Shari’a is inclusive of mental and physical efforts then the fruits of one’s mental labour should be respected. Accordingly, additional justification for the protection of rights over the products of intellectual effort can be found in direct injunctions within the Qur’an and the Sunnah which praise honesty and fairness in trade, and prohibit any deceitful acts or unjust commercial practices.⁸⁹

One commentator has argued that ‘[v]arious verses of the Qur’an prohibit deceitful practices such as imitation and counterfeiting’⁹⁰ which by their nature fall also within the scope of ‘unscrupulous acts’ condemned by Islamic Shari’a. Examples of these verses include:

Plead not on behalf of those that are unfaithful to themselves’⁹¹

O you who have believed do not betray Allah and the Messenger or betray your trusts while you know [the consequence]⁹²

“Indeed, Allah commands you to render trusts to whom they are due”.⁹³

Surely Allah will defend those who believe; surely Allah does not love anyone who is unfaithful⁹⁴

These verses illustrate Shari’a’s condemnation of all kinds of unfair commercial practices in a traditional market. However, one commentator observes that the same verses could be broadly read to provide support from Islamic Shari’a for the protection of IP rights.⁹⁵ In linking the verses cited above and the Sunnah with IP, Al-ghamidi observes that violating an IP right would be:

Cheating that contradicts religion, morals and honesty. It is condemned by many instructions and injunctions of Islamic Shari’a. Allah says [in the Qur’an] ‘O ye who believe! betray not Allah and His messenger, nor knowingly betray your trust’ … [t]he messenger of God is reported to have said [in Sunnah]’…he who cheats us, is not one of us’. … Violating IP rights is prohibited by Shari’a because it is considered as cheating.⁹⁶

Accordingly, any person who makes copies of a computer program and sells those copies as if they were authentic versions; a person who manufactures products using a patented invention without authorisation from the patent holder; or a trader who uses a trademark of other person to market counterfeited goods is committing an act that contradicts the general prohibition of deceitful practices in Islam. As a result, laws and regulations that prevent unfair ‘free riding’ on others’ efforts and compensate any resultant damages are compatible with the main sources of Shari’a.