Silvia Beltrametti

Intellectual property rights are not regulated by Islamic law and jurisprudence per se. The issue is whether the principles of Islamic law can be constructed in a way to provide support for such protection. This paper assesses the extent to which Islamic law and its sophisticated tools have an impact on the protection of intellectual property. First it presents Sharī’a’s main sources; the Qur’an, the Sunna, Ijma and Qiyas and explains how many principles derived therefrom can accommodate intellectual property protection. It also sets out hurdles that have the potential to circumscribe such protection. Then it moves on to consider the effect of secondary sources. The following section examines the dynamics of interpretation of Islamic law over history and explores the impact that Sharī’a has on the enactment of legislation of modern governments. The concluding section briefly considers some tensions between the Western and the Islamic view on intellectual property and the role of economics within Islamic law and society. The arguments presented in this paper reveal that a Sharī’a based system is flexible and adaptable and that this flexibility is to be used in order to face economic reality.

Keywords:

"Verily, in the creation of the heavens and of the earth, and the succession of night and day:

and in the ships that speed through the sea with what is useful to man: and in the waters which God sends down from the sky, giving life thereby to the earth after it had been lifeless, and causing all manner of living creatures to multiply thereon: and in the change of the winds, and the clouds that run their appointed courses between sky and earth: [in all this] there are messages indeed for people who use their reason." Qur'an II:164

I. The evolution of the recognition of intellectual property rights

Intellectual property is an ancient concept. Protection for original authorship in pre-Islamic societies was recognized for poets, who were compensated for the publication and distribution of their work.  Fine poetry was deeply regarded in the Arab world and authors enjoyed an enhanced social standing and respect. Lesser poets who plagiarized their work in an attempt to free-ride on their reputation were harshly condemned and cast from cultural society. This shows that copyright protection was a recognized concept dating back to pre-Islamic civilizations. With the advent of the Islamic rule some of the rights pertaining to authorship were further advanced. The state started to commission scholars to write about topics of interest and bought these works back from them once ready; the author would forfeit his rights in the work in exchange for compensation. Although pre-Islamic recognition of intellectual property rights was subsequently strengthened by the Islamic rule this recognition was never explicitly formulated but remained an accepted social norm.

In view of this historical development some basic forms of intellectual property rights can hardly be denied a claim under Sharī'a but since the advent of Islam the concept of intellectual property has expanded to include trademarks and patents and more sophisticated forms of copyright. What these intellectual property rights have in common is that they grant limited exclusive rights in exchange for the commercialization of an original creation that benefits society and they allow the owner to stop any unauthorized use by a third party. This expansion of intellectual property and the new challenges associated with new technologies, innovation and globalization render its justification under Sharī'a law more complicated.

Nowadays many predominantly Muslim countries apply secular laws in the protection of intellectual property but at the same time some constitutions of these countries hold Sharī'a as their main source. Intellectual property protection is not incompatible with Sharī'a, therefore these laws should be accepted and complied with by religious Muslims as well as secular members of the public.  However the current laws do not seem to bite, they are enforced laxly and the ongoing infringing activities contribute to conspicuous losses of revenue for major companies relying on such rights. Piracy rages in the Middle East and one major problem seems to be the belief that copying is permissible; many Muslims do think that the concept of intellectual property associated with technological development stems from the West and not from their religious sources and are therefore reluctant to accept it. Lenient intellectual property protection slows down economic development. In order to increase awareness and achieve effective enforcement to ameliorate the market conditions in which these rights operate, this paper will assess the extent to which these rights are compatible with Sharī'a principles.

II. The Sources

Sharī'a does not refer to Islamic legal rules only, it encompasses a full set of associations that culminate with a timeless concept of justice and fairness and is best understood as a higher rule of law with a divine connection. It is important to distinguish this transcendental concept of law with the formulation of legal rules; what jurists have formulated through their reason is not divine law but legal jurisprudence, fiqh. This cognitive process aims to uncover God's will through the intellectual evaluation of Sharī'a's main sources: the Qur'an, the Sunna, Ijma and Qiyas. For the purpose of this paper the term Sharī'a will be used as synonym of Islamic law; both terms will be employed to indicate the law as revealed by the sources and other principles and  practices associated with it. It is crucial to understand the pyramidal hierarchy among the sources and the interplay between textual and non-textual legal concepts.

1.      The Qur'an

The Qur'an is the primary and most authoritative source of Sharī'a. It is a written document and it has divine origins; it was revealed by God to the Prophet Mohammed over a period of 22 years and it contains the holy teachings that a true Muslim is to follow. It is divided in Meccan and Medinese verses, according to where the Prophet Mohammed was at the point in time of the revelation. For the purpose of this analysis the Medinese verses are of more importance because it was in Medina that the Prophet took up the role of governor as well as of religious leader of his community and therefore the teachings and the rules following from these verses are of more practical effect in view of  the chosen topic.

Although the Qur'an is not primarily a legal book, it is the highest source of law. Accordingly any rule contained in the Qur'an cannot be contradicted or modified by rules derived from any other source. About 300 verses contain legal provisions which are specific in matters that are eternal and general in matters that change. Scholars have classified these actions as obligatory, recommended, neutral, reprehensible and forbidden. This demonstrates that Qur'anic principles are not unbending as it might appear on the surface but show a considerable degree of flexibility and pragmatism.

2.      The Sunna

The Qur'an is supplemented by reference to Prophet Mohammed's life, by his Sunna, which translates into "path" in the English language. The Sunna is the second most important source of  Islamic law. It refers to a collection of recorded sayings that illustrate the established practice and tradition in which the Prophet lived, the Hadith. The Sunna refers to the way the Prophet lived as a guideline for behaviour, whereas the Hadith comprises the actual textual narratives about his life. The importance of the Hadith and Sunna lies in their large size and great detail of legally relevant material. These sources are meant to complement the rules set out in the Qur'an and are often useful as context clarification.

3.      Ijma

To establish direct support for a legal proposition it is necessary to point to a verse of the Qur'an, or at least to a Hadith of the Prophet. If this is not possible because both these sources are silent further scope of interpretation is given through Ijma. Ijma is the third source of Islamic law and it refers to the unanimous agreement or consensus of the legal scholars of the Muslim community on a point of law that occurred at a certain point in time and ought apply in the future. The validity of this type of agreement derives from the readings of many Hadith: "Whatever the Muslims deem to be good is good in the eyes of God" or "My community will never agree on  error".

4.      Qiyas

The fourth source, Qiyas, can be used to extend what is covered by the sources outlined above by strict analogical reasoning. A clear and undisputed rule that is found or can reasonably be inferred from the Qur'an or the Sunna might be extended to cover new circumstances if a narrow conception of its ratio can be elucidated in such way that is applies to a new situation. The effective cause, also called "illa" is the rationale of a legal proposition and in order to apply it must be must be common to both cases. Many illas were derived from the legal rules found in the Qur'an and the Sunna and were used in the process for the formulation of further rules. In short, a new scenario can potentially be covered when it resembles a situation expressly regulated by the textual sources discussed above.

5.      Interrelations between the sources and Ijtihad

Sharī'a is the expression of God's will for mankind based on his revelation -- it is a unitary concept. Many Muslims view Sharī'a as a way of life and seek to ensure that their actions are in agreement with its principles. This means that the components of Islamic law can not be analysed as individual self-standing concepts because this would result in a more complex and fragmented analytical framework. It is necessary to understand that these four sources work in tandem and that any legal ruling or conclusion should make sense of these sources as read together.

The sources provide the raw material, what glues them together is the concept of ijtihad, the human struggle for understanding but often simply translated as "effort". The revelation must be processed by human intellect before it can become a cohesive legal system for society. This concept is employed by scholars and judges in order to interpret the sources and also to resolve problems that are not directly covered by the sources. If the Qur'an and the Sunna are silent a scholar can attempt to formulate a rule by way of Ijma or Qiyas by using ijtihad. This intellectual exertion in order to find out God's true revelation has to be approached as a science. Whereas Sharī'a comes directly from God and is therefore undisputable, the legal jurisprudence that the jurists have formulated through their reason, fiqh, is law as a human science and therefore contestable.

6.      The four Sunni schools and the concept of Talfiq

The fallacies of this human interpretative science are best illustrated by the fact that disagreement on the priority of the sources, the complications of the process of authentication of Hadith and linguistic ambiguities saw the development of four main Sunni schools of jurisprudence around the 10^th century, each contributing a different interpretation of Sharī'a: the Hanafi, the Shafi, the Maliki and the Hanbali school. These schools have become concentrated in different geographical locations, the Hanbalis becoming predominant in the Arabian peninsula, the Malikis in North and West Africa, the Hanafis in what we call the Middle East today and the Shafi school being a major influence in the East reaching out to Malaysia and Indonesia. The methodologies of these schools are distinct in that they combine different proportions of textual authority and analogical reasoning; the Hanbali's tend to prefer a more literal analysis of the sources than the other schools who would allow wider discretion when interpreting. Although external influences affected the idiosyncratic evolution of each school and this led to significant diversity throughout the Islamic world the most important cohesive factor has always been the need to make law workable.

The phenomenon of talfiq coupled together with a more radical extension of ijtihad proved important in this respect. Talfiq is a principle according to which a judge belonging to one school is authorized to choose an interpretation from a different school of jurisprudence if it seems to fit the circumstances of a case in a better way. Talfiq allows a systematic comparison of all classical schools of laws and to reach a synthesis that combines their best features. Although this patching process is not universally accepted by all scholars it has the potential to uncover the underlying flexibility within the Islamic legal system; it demonstrates the wide latitude of thinkers to reason appropriately in view of fact-specific contexts.

III. Intellectual Property as unregulated by the sources but not incompatible with Sharī'a

Now that the main legal tools of Islamic law have been considered, the next step involves the examination of the substantive principles contained in these sources. Intellectual property rights are not specifically regulated by any source of Sharī'a but its principles can be construed in a way that provides support for such protection.

1.      Personal rights can be gained through effort

Many Hadith emphasize the importance of Muslim people to exert themselves in order to make a living out of their efforts. For example the Prophet has reported to have said: "Nobody has ever eaten a better meal than that which one has earned by working with one's own hands". This type of exertion encompasses mental and physical efforts. As a consequence it can be assumed that individuals spending time and effort by using their intellectual creativity to develop new ideas and inventions that contribute to the state of the art should be legitimately entitled to benefit from those creations. This implies that copyright associated with the original creation of an author, the efforts invested in promoting a trademark and new and useful industrial inventions can be recognized as personal rights gained trough effort. In addition to the right to reap the fruits of an individual's own labour and effort the Qur'an recognizes an array of personal rights deriving therefrom, most importantly the right to accumulate wealth and the right to ownership and possession.

2.      Property rights

It is necessary to delve deep in the Qur'anic notion of property in order to understand how intellectual property rights as a form of intangible property can relate to concepts that apply to real property. Private property and ownership are such important concepts that the Prophet himself acknowledged them in his Farewell Sermon: "Verily your blood, your property are as sacred and inviolable as the sacredness of this day of yours, in this month of yours, in this town of yours". In addition the Qur'an provides not to "knowingly devour a portion of the property of others wrongfully". Property is considered sacred and absolute in scope against all takers except God himself; in fact the founder of lost or stolen property won't acquire title in it but merely act as a trustee for the original owner.

True ownership of title to property can occur by affirmative appropriation. Islamic law recognizes the right to acquire property  by developing vacant or undeveloped land. This has the positive connotation of making something useful and  productive to the benefit of the community. Usefulness, improvement and optimal exploitation seem to be the crucial criteria. This has a bearing on intellectual property rights because works of authorship, inventions and the use of trademarks are meant to be useful forms of protection. They do provide benefits to society in the form of original creations, technological inventions and guaranty of source. These materialize with the creation of books, music, medicines and software all marketed through quality brands indicating a reliable source of origin. Given that intangibles can be as useful as tangibles both types of property deserve protection.

The Qur'an also recognizes the divisibility of property rights which is an additional crucial component of the understanding of intellectual property. Islamic law accepts the division of title in ownership, possessory interests and use among others. Ownership of property is conceptually divided from the right to use property in the same way that physicality of an object is distinct from its intellectual value. This concept bears strongly on intellectual property rights, for instance in situations where the owner of an intellectually protected facility wants to retain ownership rights but allow a third party to exploit it economically. This will usually occur through a licensing agreement, which lies at the core of a productive use of intellectual property and involves the authorizing of others to exploit a creation in exchange for some kind of consideration. A licensing agreement is possible under Sharī'a, as long as the object and the mode of exploitation are legitimate and in the public interest. To be legitimate an agreement must be fair, and if a private interest conflicts with a wider public interest the latter one should be given precedence.

It is also important to notice that under the principles of Sharī'a non-use can lead to loss of title. The economic rationale is clear, the community as a whole will suffer from the non-exploitation of potentially valuable property. Intellectual property has a case under this heading because it allows a limited monopoly to come into existence only if creations are commercially valuable to society as a whole. To be commercially valuable such rights have to be used. When monopoly rights expire the previously protected intellectual property will enter the public domain. A further re-elaboration will lead to the commercialization of new inventions which in turn will qualify for intellectual property protection if the level of originality and novelty are complied with and this will overall stimulate innovation.

3.      Moral Rights

Sharī'a insists that ideas must be properly attributable to its source and harshly condemns the false attribution of one's work to someone else. The roots of such protection lie in the necessity of passing on trustworthy information: at the Prophet's time religious teachings and many Hadith were transmitted orally, and in order to ensure its exactness and authenticity these sayings needed to be attributed to the correct source. This presupposes that information is not being distorted but preserved in its original form. Deceit in the form of false attribution and mutilation of someone else's work trace back to the words of the Qur'an:

"Show me what they have created of the earth. Or have they any portion in the heavens? Bring me a scripture before this (Scripture), or some vestige of knowledge in support of what ye say if you are truthful" and the Hadith: "Truth leads one to Paradise and virtue leads one to Paradise and the person tells the truth until he is recorded as truthful, and lie leads to obscenity and obscenity leads to hell, and the person tells a lie until he is recorded as a liar".

The recognition of the moral rights of attribution and integrity are an integral part of intellectual property rights. Besides being tradable commodities original creations can be interpreted as being an extension of the authors personhood and it is this peculiar relationship of a master with its work that justifies the additional layer of protection granted by moral rights. The definition of moral rights entails that copyrightable works have inalienable qualities because they are connected to their authors by an intimate and unique bond. The fundamental moral rights of attribution, the right to claim authorship of someone's work, and integrity, the rights to object to the modification and mutilation of someone's work,  are thought to continue to stay with an author even once the copyright is assigned. This requires that the names of inventors are mentioned in patent specifications, it recognizes the exclusive right of a trademark owner to place his trademark on his goods and that the goods deriving from such creations are marketed in the contemplated manner.

4.      Copying, counterfeiting and theft

The following proposition in the Qur'an can be read as to prohibit copying and counterfeiting: "Woe to those who use measure and measure, who when receiving take for themselves a full measure, but when measuring or weighting for others give less" and "Woe the fraudsters". In addition many Hadith encourage Muslims to stay in places where trade practices are fair and to leave places where the measures are not respected. A wide interpretation of these verses suggests a general prohibition of unjust commercial dealings and deceptive  and unscrupulous commercial practices. One can clearly argue that copying or passing off on the efforts of others are encompassed, because the trade won't be fair if a true description of goods, quality and ideas is prevented.

Finally the Qur'an expressly condemns theft: "as for the man who is a thief and the woman who is a thief cut off their hands in requital for what they have reaped and as a exemplary punishment of God" and the Prophet's Farewell Sermon reads "Live together but do not do wrong (..) for taking the property of a man is not permissible except by his finding it good". What amounts to unjust enrichment and illegal appropriations is to be held on trust for the legitimate owner and damages are recoverable. This can be read to justify remedies in case of infringement of intellectual property rights. The fact that Sharī'a sees property as sacred should compel governments to provide for remedies for the theft or infringement in connection with people's private property rights. This means that the owner of infringed intellectual property rights is entitled to compensation for any resulting damage caused by the unauthorized appropriation. In some circumstances specific performance might be a better remedy; if the infringing goods are available they shall either be destroyed or returned to the legitimate owner.

5.      Laws of Contract

Multiple principles defending the sanctity of contracts and the freedom to contract are enshrined in the Qur'an, the most explicit reads: "Fulfil your undertakings". This notion is emphasized continuously throughout the Qur'an and the Sunna. All schools of jurisprudence agree on the fact that all Muslims are to be bound by their stipulations and that they enjoy a wide discretion as to their contracts as long as the objects are not forbidden under Sharī'a law. The duty to observe contractual obligations and therefore to use property within the scope of the rights granted is unquestionable.

i.            Individual Contracts

Islamic thought promotes exchanges when the parties voluntarily agree on how it is going to be performed and the subject matter is sufficiently certain. An exchange may imply a loss or a profit for either party, but this is accepted as long as the prerogatives of the contract are known at the time of entering it. It seems that holders of intellectual property rights are therefore entitled to freely contract them out. The laws of contract give owners the freedom to dispose of their own property as they wish, they can assign intellectual property rights straightaway or retain an interest and allow third parties to use such right in a certain manner. The form of a contract is not restricted by Qur'anic prescription and it has been argued that customs and practices associated with a particular trade will determine the terms and the modality of the contract. These broad notions of contract law best illustrate the flexibility of Islamic law to meet commercial realities.

ii.            International treaties

In the same way that individuals are bound by the contracts they decide to enter into one can argue that also the state is bound to honour the contracts to which it is a party, for instance when it becomes a signatory to an international treaty.

"Freedom from obligation from Allah and his messenger toward those of the idolaters with whom ye made a treaty" and "excepting those of the idolaters with whom ye have a treaty, and who have since abated nothing of your right nor have supported anyone against you. Fulfil their treaty to them till their term. Allah loveth those who keep their duty".

Many predominantly Muslim countries are signatories to important international agreements dealing with the  protection of intellectual property, the most famous ones being the Berne and Paris Conventions. The Berne Convention is an international agreement on copyright principles, specifically concerned with the protection of literary and artistic works and the Paris Convention is a major international treaty designed to help the people of one country to obtain protection in other signatory countries for patents, trademarks and industrial designs. Also the accession to the TRIPS, an agreement that sets down minimum standards for many forms of intellectual property regulation when used in trade, was a strong call for attention to intellectual property issues. In order to comply with international obligations under these treaties national legislation concerning the substantive protection of intellectual property rights was enacted. Proper adherence would include the adoption of measures for the effective enforcement of legal provisions.

6.      Fairness and Honest Dealings

Commercial ethics have a longstanding history and are highly valued under Islamic law. The society of the Prophet himself was based on trade and commerce and the need to be able to deal honestly with business partners was a prerequisite to any workable transaction. Fair competition was promoted in order to guarantee consumers the benefits of better products and lower prices.

The Prophet is said to have visited markets in order to inspect the business practices adopted by his community. When the community grew a commercial institution called the Muhtasib was given the role of "commanding the good and forbidding the evil" when supervising market practices. Its main functions were enforcing justice and fairness in the market place so as to enhance consumer interest. Is has also been said that special marks were put on certain products to indicate the conformity with accepted quality standards - this is very contemporary and fully consistent with the role of trademarks as guarantors of quality. These practices might be implied to recognize the value of trademarks as indicators of source and the prohibition of unfair competition associated with trademark infringement.

These basic principles of Islamic law extracted from primary sources encourage the legal protection of intellectual property. The principles of trade and the importance of private property and contracts have can be tied to the rationale for the protection of intellectual property. The strong emphasis on the concept of profitable trade is a strong call for the recognition of intellectual property rights.