© Springer International Publishing Switzerland 2015Brian Fitzgerald and John Gilchrist (eds.)Copyright Perspectives10.1007/978-3-319-15913-3_5
5. An Islamic Perspective on the Theories of Intellectual Property
Tripoli University in Libya, Tripoli, Libya
Thomas More Academy of Law, Australian Catholic University, 486 Albert Street, East Melbourne, VIC, 3002, Australia
The Islamic perspective on intellectual property (IP) is based on the sources of Islamic Shari’a. These sources mainly include the Qur’an, the traditions of the Prophet (pbuh)1 known as Sunnah and the juristic mechanisms which used to deduce injunctions from the Qur’an and the Sunnah such as legal analogy (qiyas) and the consideration of public interest (maslaha mursala).2 To varying degrees, the sources and principles of Islamic Shari’a affect culture and law-making in 57 counties worldwide.3 Far from being an ancient faith system, it is an influential set of rules and philosophies, the scope of which extends beyond religious duties to regulating marriage and what to eat and wear. One of the fundamental domains of Islamic Shari’a is regulation of the process of law-making in Muslim societies. It can operate as a normative framework for law-making in different fields of law, including IP.
Virtually, all countries with dominant Islamic populations recognise and protect IP. Leading institutions in the Islamic world such as the Council of Islamic Fiqh (Jurisprudence) Academy4 and Al-AzharFatwa committee5 issued Shari’a based opinions (fatwas) indicating that the sources of Shari’a promote the protection and enforcement of IP. However, very little has been written to establish the theoretical foundations of IP from an Islamic perspective.
The existing literature on IP and Islamic Shari’a is generally scarce. The available studies failed to efficiently and appropriately use the sources of Shari’a to introduce comprehensive theories on IP and Islamic Shari’a.
Islamic Shari’a along with the classic and modern Islamic jurisprudence can be used to provide more comprehensive theories on IP. In particular, they can be strongly linked to modern theories of IP as introduced in Western literature. The Islamic sources contain various principles which are relevant to the dominant theories of IP such as labour/fairness theory, utilitarianism and personality theory.
Introducing comprehensive justification for IP from an Islamic perspective is important for at least two reasons. First, it is important for comparative legal studies as it demonstrates the position of one of the world’s largest legal and cultural systems towards IP. Secondly, this may help policymakers interested in making Shari’a-compatible IP system to understand the scope and limits of IP laws based on Islamic Shari’a.
This chapter is divided into two parts. The first part classifies the existing literature (both in Arabic and English) in terms of justifying IP from an Islamic perspective. This part critically analyses this literature in order to identify the proper scope for research. The second part of this chapter sets the foundations for introducing comprehensive theories on IP and Islamic Shari’a. This is done by showing that the sources of Shari’a greatly intersect with Western theories of physical property and IP, and by highlighting limits on IP from an Islamic perspective.
5.2 Intellectual Property in Islamic Literature
The concept of IP, its recognition and protection from an Islamic perspective has been a subject of debate amongst the contemporary commentators on Islamic Shari’a.6 Generally, there are two different camps.7 One contends that the sources of Shari’a oppose, to different degrees, notions of IP, while the other camp argues that the sources of Shari’a strongly support IP. The following sections trace their arguments and critically analyse the integrity of these arguments.
5.2.1 Objections to Intellectual Property
The most extreme opinion on IP in Islamic literature holds that Shari’a does not accept IP as it is a tool imposed by the West, which would be of no benefit to the Muslim community.8 An aspect of this approach was summarised by Mufti Taqi Usmani (who supports IP protection) as claiming that the primary sources of Shari’a and the juristic views of Muslim scholars have not supported the protection of intangible objects. Furthermore, knowledge in Shari’a cannot be subject to private ownership.9 In that vein, the late Mufti of Pakistan, Sheikh Muhammed Shafe’e, issued a legal opinion (fatwa) stating that authorship and inventions are acceptable as a means of income, but it is not permissible to exclude others from using them, as they represent only an abstract right which is not protected according to Shari’a’s rules.10 However, as we traverse opinions objecting to IP, we will note that this opinion is the weakest and that the sources of Islamic Shari’a do not support it.
There are at least four objections to IP that can be identified from the relevant Islamic literature. These objections are based on the assumption that there are underlying inconsistencies between various injunctions within the Qur’an and Sunnah and notions of IP. These inconsistencies might affect the nature and scope of the protection afforded to some forms of IP.11 This section examines these objections and considers whether they can be justified.
22.214.171.124 Intellectual Property and the Concealment of Knowledge
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:
Copyright protects only forms of expression and does not protect the underlying idea,22 so that any person could use any discovered idea without any restrictions. For example, if an author created software program, a third party could use the idea (knowledge) underlying the program to develop his or her own version;
Where there is an overriding public interest in the dissemination of copyright knowledge, the copyright system neutralises the exclusive rights of the owner, and grants users the right to use the subject matter without permission. This is known in copyright systems as ‘exceptions and limitations’, such as use for educational purposes, reporting news, parody and satires, and fair use or fair dealing for various purposes including study or research23;
Exclusive rights over the copyright subject matter are not permanent. Generally, after the elapse of an extended period after the death of the author the subject matter enters into the public domain and can be freely used and exploited.24
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:
The scope of patentability is limited by certain restrictions. Consequently not all knowledge can be subject to private ownership. For instance discoveries, scientific theories, laws of nature and mathematical methods are not patentable.25
The patent system requires the inventor to fully disclose patent information; such disclosure is considered the main requirement for granting the inventor patent rights.26
As in copyright, where there is an overriding public interest that necessitates using the patented invention, it may be used without permission from the owner.
Also as in copyright, the exclusive monopoly of the patentee over the invention is not permanent, and normally ends after the expiry of 20 years from the application date.27
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
126.96.36.199 Islamic Shari’a and the Subject Matter of Intellectual Property
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.
In their early days, copyright law was one instrument of State control over publication of works—a ‘form of censorship’.34 Courts denied copyright protection on the grounds of state morality; any works which were considered immoral were refused copyright protection and publication of them was proscribed. This historical attitude may no longer be relevant in the majority of jurisdictions.35
There are various copyright subject matters protectable according to the current international standards which raise problems when examined under the rules of Shari’a. For instance, literary works which contain what Shari’a deems as inappropriate language or pornographic content are not protectable as the ideas underlying them are not accepted in Islamic Shari’a.36 Accordingly, the underlying ideas or forms of expression which contradict injunctions in the Qur’an or the teachings of the Prophet cannot constitute copyrightable subject matter in Islamic based IP system.37
The freedom to research and invent is very broad under the sources of Islamic Shari’a. However, these sources, and particularly the Qur’an, may lead to excluding certain intellectual products from the patentable subject, matter. In this regard, the Council of Islamic Fiqh (Jurisprudence) Academy stated:
Islam does not set up any obstacle…to the freedom of scientific research that constitutes a means to discover the order established by God Almighty in His creation. Nevertheless, Islam stresses that the door cannot be left wide open, without restriction, to the generalised implementation, without limit, of the results of scientific research, without examining them closely in the light of Shari’a, so to authorise what is lawful ‘halal’ and prohibit what is [unlawful] ‘haram’. It is not allowed to apply a discovery just because such an application is technically possible38
This confronts a belief held by some in the West, particularly in the United States that ‘anything under the sun made by man can be patented’.39 Certain discoveries and inventions will definitely fall within the scope of haram subject matter. According to the Qur’an, any modification to a living organism in a way that contradicts the order established by God Almighty is condemned.40 In light of this, ‘the human body or parts of human body must be excluded from patentability. Inventions which involve processes for modifying the genetic identity of the human body must be excluded from patentability as they are contrary to the dignity of man’41 from an Islamic perspective.42
Additionally, invented devices which promote activities that are contrary to the dictates of Shari’a, such as gambling,43 will not be granted patent protection according to any Shari’a-compliant patent act.
In some Islamic countries, Shari’a’s stance on the scope of patentability has been explicitly considered. The patent system of the Gulf Cooperation Council in Article 2 stipulates that for an invention to be patentable it should not contradict the rules of Islamic Shari’a.44 Article 4 of Saudi Patent Law 45 and Article 2 of Industrial Property Rights 46 both carry provisions to the same effect.
The rules of Islamic Shari’a prohibit the consumption and trading of certain products and services such as alcoholic beverages,47 pork48 and casinos. In any Shari’a-compliant trademark law, the registration, and thus the protection, of any trademarks associated with any of these products would be denied.
It is common practice in Muslim countries in general and in some Gulf States in particular to reject the registration of trademarks or geographical indications relating to wines, spirits and other alcoholic beverages.49 In Libya, the Implementing Regulations of Libyan Trademark Law exclude alcoholic beverages from the registrable trademarks.50
To sum up, the sources of Islamic Shari’a contain injunctions which lead to excluding various intellectual products from the scope of IP protection. Nevertheless, these injunctions do not demonstrate a conceptual contradiction between Islamic Shari’a and notions of IP. These injunctions lead only to reducing the scope of protectable subject matter in Shari’a-based IP system.
188.8.131.52 Intellectual Property and Maysir
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.
In addition, mayser should not negatively affect the recognition and protection of IP due to the existence of mechanisms within the IP system that could be used to control the dissemination of the product in a way that takes into consideration the public interest and the legitimate interests of the right holder to benefit from her or his creations. This includes, for instance, compulsory licenses and the rights of user of IP protected materials.
184.108.40.206 Indefiniteness (Gharar) and Intellectual Property
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.
5.2.2 Support for The wordThe wordThe wordThe wordThe wordThe word Protection
The majority of contemporary Muslim scholars64 argue that Islamic Shari’a recognises IP rights and ‘there is nothing in [its rules] that enjoins or contravenes protecting and enforcing intellectual property’.65 On the contrary, the principles derived from the Qur’an and Sunnah along with the non-textual sources of Shari’a seem to provide strong support for the recognition and protection of IP.
220.127.116.11 The Position of Intangible Property in Islamic Shari’a
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
18.104.22.168 Generation of Wealth
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.
22.214.171.124 Legitimate Labour in Islam and Intellectual Property
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.
126.96.36.199 Productivity in Islam and Intellectual Property
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.
188.8.131.52 Islamic Shari’a Condemns Deceitful Practices
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.
5.2.3 Evaluation of the Existing Literature on IP and Islamic Shari’a
Those who oppose IP protection from an Islamic perspective seem to lack a deep understanding of the diverse field of IP. Their objections deal only with limited aspects of the IP system. They have failed to provide convincing evidence to demonstrate a conceptual conflict between the sources of Islamic Shari’a and notions of IP. Their objections to IP are—at best—valid as grounds to introduce IP laws that are different from those implemented in the West, but they do not validate rejection of IP by Shari’a. For instance, the objection raised against IP subject matter may lead to excluding subject matters that contradict certain injunctions in the Islamic sources. Likewise, objection based on gharar only leads to nullifying certain transactions involving IP, but it is not a valid ground to exclude IP protection altogether.97
With regard to the proponents of IP, their arguments are stronger and reveal that the principles contained in the textual sources of Islamic Shari’a unequivocally support the recognition and protection of IP rights. For instance, the theoretical concept of mulk in Islamic Shari’a is broad enough to encompass intangible property. Islamic Shari’a recognises mental labour as a method of making a livelihood and it strictly condemns ‘free-riding’ or obtaining an advantage without paying for it or earning it.
Nevertheless, the analysis introduced by the proponents of IP protection from an Islamic perspective is not deep enough. This is evident from the following two gaps, which were not addressed.
First, the sources of Islamic Shari’a were not used to introduce general theories of IP, despite the fact that the Qur’an and the Sunnah as well as classic and modern Islamic jurisprudence can be relied upon to establish Islamic theories for IP similar to those dominant in the West.
Second, the existing literature also failed to—at least—highlight the existence of principles in the sources of Islamic Shari’a that may be relevant to placing limits to individual IP rights. Concepts of ownership in Islamic Shari’a, its prohibition of concentration of productive resources, and its encouragement for the wide dissemination of knowledge may be seen as grounds for limiting, modifying, and otherwise affecting the existence or the scope of individual IP rights.
At this stage, I would like to emphasise the fact that I am not arguing that Islamic Shari’a will create new theories for IP, but I am simply arguing that there are concepts and principles in the sources of Islamic Shari’a that provide broader theoretical framework to justify IP from an Islamic perspective and also to place limits on IP from an Islamic perspective. The next section will discuss in detail the origins of these concepts and principles, and how they are relevant to modern theories of IP.
5.3 An Islamic Perspective on the Dominant Theories of IP
The dominant theories of IP, at least in the West, are based on fairness, utilitarianism and personality theories used in justifying the right to physical property. This section starts by briefly tracing these theories. After that, it identifies profound similarities between Western and Islamic theories of property. This section ends by arguing that as much as IP can be justified according to Western theories, it can also be justified according to Islamic theories of physical property.
5.3.1 Justification of Property in the West
Generally, the right to physical property is justified in the West by reference to the writings of theorists such as John Locke (d. 1704), Immanuel Kant (d. 1804) and Georg Hegel (d. 1831).
In Chapter 5 of his Two Treatises of Government,98 Locke justifies the right to private property based on fairness. In sections 25, 26 and 34 Locke maintains that ‘God gave the world to men in common’, (emphasis added)99 and that the resources of nature are available for all people.100 In Locke’s theory on property, each individual owns ‘the labour of his body and the work of his hands … Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.’101 Thus, ‘no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others.’102 From this assumption comes the exclusionary nature of the contemporary Western right of private property.
The most prominent example in Locke’s Treatises is the private ownership of land (sections 32, 37 and 43). An individual, who tills, plants, improves and cultivates a piece of land,103 has ‘added something to [it] more than nature … and so [it] became his private right’.104 ‘Thus, labour … [gives] a right of property, whenever anyone was pleased to employ it upon what was common’.105
Moreover, according to Locke, it is not only fairness that may justify private ownership, public interest also does. The American philosopher Albert Brogan maintains that “Locke formulated the basic theses of early or eighteenth-century Utilitarianism”.106 Based on the utilitarian account, private property should be protected because protection is in the public interest of society at large. Failing to protect private property will lead to making people losing incentive to labour on the resources held in common. This, in turn, will reduce value in society and impede progress. In this sense, recognising and protecting private property secures the good for all.
Hegel, on the other hand, argues that ‘man has by nature the impulse to right [and] the impulse to property’ (emphasis added).107 On that basis Hegel proposes his so-called personality theory. According to personality theory, property can be justified as an expression of the self. What creates ownership is the will of an individual. This takes place, for instance, when that will interacts with the external world at various levels of activity. According to Hegel’s philosophy, intellectual processes such as realisation, remembering, contemplation, classification and constructive imagination ‘can be viewed as appropriations of the external world by the mind’,108 and since the will of an individual represents his or personality, the right to private ownership over what has been appropriated by the will should be considered as a fundamental prerequisite for satisfying natural human urges.109
5.3.2 Justification of Property in Islamic Shari’a
The theories of both Locke and Hegel have strong parallels in the theoretical framework of private property in Islamic Shari’a. For instance, the theological premise of Locke (sec 34) is emphasised throughout the Qur’an:
It is He (Allah) who created for you (humankind) all of that which is on the earth.110
And He has subjected to you whatever is in the heavens and whatever is on the earth – all from Him. Indeed in that are signs for a people who give thought.111
As is the case in the Western philosophy, fairness is used to justify private property in Islamic Shari’a. Muslim scholars define the resources held in common as mubah. 112 From an Islamic perspective, the mubah includes vacant land (al-ard al-jardaa), marine life (al-hayate al-bahriyya), animals (hayawanat), plants (nabatat) and mines (ma’adin).113 Generally, the appropriation from mubah grants title (mulkiyya) to the appropriator.114 This takes place through labour that leads to possession of some of the resources that are held in common (ihraz al-mubah).115
As is the case in Locke’s Treatises, the example of land is widely used in the jurisprudence of Islamic Shari’a to justify granting title over resources held in common (ihraz al-mubah). As we have seen above, this is known as ihyaa al-mawat (reviving the death), and relies on a hadith of the Prophet (pbuh) that implies whoever labours on an unclaimed piece of vacant land will have the right to own that land.116