IV. Intellectual Property as unacceptable under the Sharī'a

The strictest view against the protection of intellectual property under Sharī'a insists on the fact that nowhere in the Qur'an or the Sunna intangible properties are expressly treated as subject matter of private ownership. Intangible rights can be implied but they are never explicitly mentioned, and this may suggest that property can be uniquely intended as tangible property.

1.      Indefiniteness

"It is forbidden to sell the fruit on the trees before it is ripe, because the buyer does not know if all the fruit will ripen or what its weight will be". The concept of indefiniteness or speculative risk, gharar, commands that any transaction is to be devoid of uncertainty and speculation. This means that both contracting parties must have perfect knowledge of what is being exchanged in their transaction. The precise measures and values are required.

An element of risk seems to be permissible as long as the division of risk is decided in advance and the transaction appears to be fair. Vogel and Hayes explain that as long as the parties have full knowledge of the characteristics and value of the subject matter which is being contracted, the subject matter does exist at the time the transaction is entered into and the parties exert effective control over the property and the execution of the contract -- the transaction will avoid gharar.

Overall this concept has not overly restricted the development of commercial law and some standards have developed that enable the parties to a transaction to avoid gharar: an acceptable degree of clarity will be assumed if licensing agreements occur in writing and are registered with the competent authority. However, even if the parties know how to value an intellectual property resource and have control over it, in some cases licensing such rights may be problematic. There are some instances where the subject matter being contracted is not clear from the outset; usually parties contracting to buy technological know-how and trade secrets do not know the exact parameters of it. Disclosing trade secrets and knowhow before a contract is concluded would deter the parties to conclude the contract. This means that disclosure of full knowledge of what is being contracted might be problematic in some cases when this specific intellectual property subject matter is being licensed. A possible counter-argument might be that because of the effort involved in developing such technologies Sharī'a recognizes its value and the required degree of certainty can be achieved through the contracting between the parties.

2.      Sharī'a prohibits profit without effort and labour

Although the Qur'an provides that "there is no fault in you that you should seek bounty (honest profit) from your Lord" disproportionate profits are held not to be honest: "Woe to every defamer, slanderer, who amasses wealth and hoards it! He thinks that this wealth is going to make him live forever". This verse condemns the accumulation of excessive wealth and this applies in some intellectual property cases when minimal effort can yield extra-ordinary profits. This is clear if we think of novel writers who have extraordinary success and earn enormous amounts of royalties after a limited amount of time input. The same might happen with the development of a new medicine which proves an enormous achievement or advertising of a trademark that immediately becomes famous. In this cases the profit generated will be significantly disproportionate to the time and money invested initially in the development of the idea.

In recognizing the importance of trade and commerce Sharī'a emphasized the notion of balance: gains should be in proportion to the efforts spent in doing something. Gambling is prohibited under this head because it concerns undeserved 'easy' money and because it involves profit without work. It seems that activities that can potentially yield indefinite and extraordinary profits could constitute a form of deceit.

3.      Riba

The concept of riba involves the prohibition of interest and usury. Literally riba translates into unjustified increase, which should be avoided according to the Qur'an: "God has allowed commerce and prohibited interest (riba)". The underlying rationale of this prohibition seems to be that wealth needs to be gained through effort and labour and interest involves earnings without such exertion.

Wealth reaped through licensing fees of intellectual property rights can potentially amount to a sub-form of interest collected by the owner of the facility, the licensor. A very strict application of this principle will require the holders of intellectual property rights to recover only the initial investments of their creations because whatever goes beyond that would amount to a form of usury. This literal interpretation could also affect certain clauses in licensing agreements that allow the licensor to charge interest on late license payments.  However the better view is that as  long as a profit stems from labour and effort and is reasonable in that respect a licence fee should be viewed as a fair profit encouraged under Sharī'a and not as analogous to interest rates.

4.      Questions of Inheritance

Inheritance rules are regulated in detail by the Qur'an and no derogation is permitted. The property of a deceased is usually left to his heirs, and in the case that there are no heirs it is left to the state. There is a conflict in the context of joint works - generally if a joint author dies its part of the work is transferred to the other co-authors and not to heirs or to the state.

Although nothing can be found that explicitly prohibits the overall legal protection of intellectual property rights, certain principles do affect the nature and scope of the protection that could be afforded. In some circumstances the title to intellectual property seems to be less full than real property title. The best way to read these hurdles is to grant protection to intellectual property up to where the understanding of principles regulating property rights under Sharī'a is unproblematic.

V. Intellectual Property as extension of secondary sources

The analysis above acknowledges some propositions that can be invoked for and against the protection of intellectual property rights, but it also shows how difficult it is to provide a firm answer to the initial quest, because the application of the various principles may lead to inconsistencies with regards to Sharī'a's adaptability to modern economics and more specifically some technicalities of intellectual property rights. The immutable precepts of Sharī'a's primary sources can be interpreted in many ways and although the resulting ambiguities can undermine its practical application in the modern world it has a potential to be rendered adaptable. For some scholars the words of the Qur'an and the Sunna are to be read literally and interpretative leeway is restricted - other scholars try to find coherent Islamic responses to the new challenges posed by progress, rationality and science. Already in the 14^th century Shatibi, a widely renowned and respected scholar and jurist emphasised the importance of the purpose of the law. In his perspective Islamic law should be read in light of the purposes it is promoting. The right interpretative balance is to be found between 'the letter and the spirit of the law', literal legalism has to leave some space to  more adaptive interpretations focusing on the spirit of Sharī'a. To make a more contemporary sense of these principles and precepts it is therefore useful to consider Sharī'a's imperative promotion of trade and look at other secondary principles of interpretation, such as Maslaha, Istihsan, Darura and Istishab. These principles will provide useful in order to strike the correct balance.

1.      Maslaha, Istihsan, Darura and Istishab

Maslaha, generally translated as the general good or public interest, can apply when two rival interpretations of the sources are possible; in this case the one most conducive to human welfare is to be chosen. In more complicated situations, which call for new rules that cannot be clearly traced back to any of the sources a public interest argument is possible on the premise that  "the basic purpose of legislation in Islam is to secure the welfare of the people by promoting their benefits or protecting them against harm". Public good rules are not self-establishing laws, the contents have to relate to Sharī'a. It appears obvious that the laws of every society should aim to protect and advance the legitimate interests of the members of its community; within Islamic law the main goals of Sharī'a are often considered to be the protection of faith, life, intellect, posterity and wealth.

Another approach that scholars have utilized is Istihsan. The Istihsan doctrine encourages the development of rules "seeking the best" for the community.  It is usually applied for adapting or restricting rules that are based on Qiyas, but in extreme situations it can also be used to produce new rules. Seeking the best is almost always consonant with fairness and fair practices.  Darura is another concept used for justifying the introduction of new rules. It is stricter in the sense that it requires "need". This broader concept of overriding necessity can be traced back to the Qur'an: "necessity permits the forbidden".  Finally there is the concept of Istishab, which means continuity. This concept emphasises the need of conformity in order to maintain the status quo unless there is a compelling reason to change.

These doctrines can not be drawn too broadly, because it would open the floodgates to many other claims and they can not be drawn too narrowly otherwise their scope would be undermined. The traditional approach as to the use of such secondary doctrines has been careful. Some factors have emerged that point towards a more cautious analysis of Maslaha, for instance: the public interest must be a genuine one and it must be publicly acknowledged, it must not contradict the sources of Sharī'a and it must be rationally acceptable. It can be assumed that such criteria apply to Darura, Istishan and Istishab as well.

2.      The application of secondary principles

This paper has already set out the compatibility of the protection of intellectual property rights with the main sources of Sharī'a, now it will briefly detail the clear benefits that will follow from the protection of intellectual property rights in light of the secondary principles outlined above.

The status quo maintains the common acceptance that property rights are the basis incentive of private economic activity and the starting point for transactions because resources are shifted to their most valuable use. Because the economics of trade have been gradually shifting from industrial to information economies the expansion of intellectual property rights is a natural consequence. The value of intellectual property rights increased in the name of social progress and this means that some level of protection of intellectual properties must be in the public benefit.

Resources are spent in order to develop creations and these investments have to be recouped and additional financial benefits should be added in order to provide the stimulus for further innovation. Ex-ante costs incurred to develop technologies are extremely high in terms of risk, time and money. Just think about the time it takes to write a novel and the financial input in the movie making industry and both efforts combined in the pharmaceutical industry, where years and large amounts of money are invested in medicine researching. Only a few are successful in the end. If the initial costs cannot be recovered, future inventors will be deterred and overall investments will collapse. In addition once on the market such goods can be copied easily and quickly and a flood of pirate versions of the originals will undermine the market for the real items in the absence of protection.

Some scholars argue that society would gain more from unrestricted access to intellectual creations of others because the sharing of knowledge is in the public benefit and should therefore be available to everyone at anytime. This goes contrary to the basic premise of intellectual property protection, where monopoly rights are granted. However such monopolies do not last forever, patent and copyright protection is limited in duration, and only during that time third parties are prohibited of appropriating it, after expiration intellectual property rights will fall in the public domain. Creativity is impossible without a rich public domain, Isaac Newton himself is reported to have said: "If I have seen further it was by standing on the shoulders of giants". Sharing knowledge is crucial to the further development of ideas and this means that there is a natural limit to the expansion of protection which could possibly result in the alignment of inventor's interests with the ones of society, which in turn results in a win - win situation for both.

Furthermore the notions of fair use and compulsory licensing limit the exclusive rights of intellectual property owners and make sure that in certain situations the public interest will have precedence over individual rights. The fair use doctrine sets out a confined number of circumstances is which the appropriation of intellectual property is lawful, for instance educational purposes, satire, comment and criticism and personal use. In the same fashion governments can require the compulsory licensing of copyrights and patents on the basis of an overriding public interest. This will be the case when national security, public health and safety, environmental issues or other emergencies are at stake. Often in both cases the dispossessed owner will be provided with adequate compensation and it is important to note that moral rights will continue to remain relevant and in case of appropriation reference should be made to the lawful owner of the right.

Intellectual property stimulates the flourishing of our culture, it protects the moral entitlement of people to the fruits of their labour. The lack of a working system of intellectual property protection reduces the competitivity of industry and incentives to innovate. The public at large will greatly suffer from this. Intellectual property protection can be justified according to the principles of the primary sources. Secondary sources further justify its protection and make the initial case for protection even more compelling. Maslaha, Istishan and Darura incarnate Sharī'a's flexibility; these are the tools that allow for social changes that are faced by the Muslim community.

VI. Interpretative role

1.      Dynamics over history

The analysis above illustrated Sharī'a 's major legal doctrines, but to understand its full deployment a brief historical perspective setting out the evolution of the application of its principles is necessary to grasp the potential flexibility of the system. Islamic law is not an ahistorical concept of timeless religious principles, since the earliest days it has known adaptation and change. Legal principles as well as institutions evolved over time. Through the development and implementation of the legal principles by competent Islamic authorities, the system maintained its specificity and grew into a multi-dimensional structure still faithful to its original beliefs.

2.      Who interprets? The roles of the Mufti, the Qadi and the Ruler.

The ambiguities of the language of the text, the difficulties of contextualization and most importantly the power to interpret the four basic sources in a coherent manner raises the most crucial quest within Islamic law: who has the power to interpret the sources and decide on its application. At the very beginning a group of self-appointed scholars assumed the role of guardians of the law, the Muftis.

The Mufti is a legal academic stating the rule of law through fatwas, legal opinions. The Mufti's task is to find out what God meant the law to be by consulting the sources and using ijtihad. He uses ijtihad to derive the legal principle. For the Mufti it was imperative to follow the text because the text comes from God and no one has the power to change the text. Some textual backup was needed in order to produce good jurisprudence. The scholar would try to make the best possible sense out of the wording of the sources but was also allowed to take the contextual specificity of a situation into account. This allowed the Mufti to extract the basic principle from the original sources and apply it in a modern context. Thereby some leeway for interpretation was created.

Traditionally this role was completely independent from governmental authority; Muftis gained authority from their personal status and public recognition of their integrity. In fact they controlled and interpreted the law according to the principles of Sharī'a thereby ensuring consistency and predictability in an independent fashion. Since the pre-Ottoman period the Muftis started loosing this high virtue of non-partisanship as they became state appointees and their function changed. Some commentators argue that the Mufti's role became the legitimization of the government's rule. Economics played a role in this shift as the degree of independence of the Muftis depended in part from their source of income; in the past the Muftis' income relied predominantly on endowments and zakat and this allowed them to be more independent, but over time pecuniary survival forced the Muftis to accept government jobs. It goes without saying that this shaded some doubts on the integrity of their fatwas.

The Qadi was the judge who solved conflicts in courts by de facto applying the law. The job of the Qadi was factual, he was responsible for weighting the evidence, examining witnesses and finally evaluating the circumstances of each case. He usually rendered judgements in accordance with the stipulations that the Mufti had submitted to the court. The Qadis were appointed by the rulers, their authority derived from the state and this might well have meant that they were to a certain extent loyal to the political powers that could depose them.

The ruler had the political role of putting the law into effect. As Albert Hourani puts it: " The ruler, his governors and special deputies, the qadis, dispensed justice and decided disputes, taking into account the existing customs and laws of the various regions". When the rules derived by Sharī'a  were unable to cover the needs of society, the ruler had the political duty to make new rules, that had to be as far as possible in compliance with Sharī'a. In the Ottoman period rulers started to increasingly assert their authority over areas that previously belonged to the interpretative realm of the scholars in order to increase the efficiency and usefulness of the law. Legal fictions were created by draping customs to Sharī'a in order to issue effective administrative regulations to cope with legal reality. This was a move to strengthen the power of government but at the same time it lead to the bureaucratisation of fatwas and to the diminished importance of scholars. It has been argued that this gradual shift of dominance made the law a tool of the ruler, not an authority over him.

The triangular relationship between Muftis, Qadis and rulers has always been a complicated one and the practical effect of a legal interpretation was ultimately dependent on its acceptance by the Muslim community. This play of checks and balances made it possible for Sharī'a to be applied in a workable manner and with the public's approval. Even though the Mufti could introduce contextual adaptations of the law through his fatwas and the Qadi had the discretion of evaluating the circumstances of each case a sufficient level of predictability and consistency secured public approval. Over time there was a gradual turn away from traditional Islamic legal scholarship, Sharī'a and non-Sharī'a elements had to be balanced against each other in judicial practice for the system to survive politically, but it was the social conception of Sharī'a that set the limits for the ruler's authority. The legitimacy of the government depended on what society accepted as Sharī'a  and this was therefore the ultimate check on the ruler. This shows how since its start Islamic legal thought possessed the innate flexibility to accommodate the needs of an evolving society.

3.      Status quo: Governments and the enactment of non-Sharī'a  law.

Most modern governments of predominantly Muslim countries are secular ones. In a usual scenario an elected legislature passes laws which are enforced by executive powers. The level of incorporation and influence of Sharī'a of these laws varies. Some modern constitutions describe Sharī'a as their main source of legislation which implies that subsequent legislative actions should be, at least in theory, Sharī'a compliant. It is thought that institutions have incentives to remain faithful to Sharī'a and its principles when passing and enforcing the law, as this might increase its effectiveness. So, even though the resonance and understanding of Sharī'a may vary from country to country, Sharī'a's implied recognition of the laws regulating intellectual property protection provides a stronger motivation to enforce them.

When Sharī'a does not provide a clear direction, the legislature should use its discretion in order to adopt laws that reflect Islamic values. The underlying idea is that God had set the ground rules and impliedly recognized that everyday matters would be regulated by the executive. The result is a number of non-Sharī'a laws, which do not trace back to the Qur'an but do not contradict it. The condition is their compatibility with the principles of Sharī'a. These are generally the positive laws needed to run a modern state pertaining on the basic Qur'anic tenet that economic advancement is needed by the Islamic community. The power of governments to enact and administer such laws for political and economic reasons can be traced back to the beginning of the Caliphates.

The lack of specific rules pertaining to intellectual property protection impliedly allows governments to enact such regulations. This has been happening in the past decades, and laws protecting intellectual property have been passed by secular governments in order to fill in the gaps. It is said that governments have a positive duty towards its citizens to enact laws regulating areas that affect its community, and the increasing importance of intellectual property rights coupled with the emphasis the Qur'an puts on the sanctity of property and contracts and the principles of public interest and fairness justifies this action. It is Sharī'a itself that requires the state to secure the protection of personal property, therefore it is imperative that the government makes sure that a body of rules coupled together with an effective enforcement system ensure the protection of intellectual property rights.

VII. Need for approval of the whole Muslim community

1.     The West imposing itself?

The public perception of intellectual property protection is problematic. Intellectual property rights are often perceived as a Western idea in the Middle East. The association made with 'the West' is often negative, and this notion spreads over to intellectual property rights. Some take it a step further and argue that it is a new tool of the West to monopolize the economic system of predominantly Muslim countries other simply interpret forms of Western Laws as 'intrusion'.

There are two main reasons for this, first the West has historically oppressed the Middle East in a number of occasions, most notably at the time of the crusades and during colonialism .Second the western culture of doing business is perceived as immoral and corrupt. The resistance to bow to Western commercialism is the reason why in many respects intellectual property rights are often ignored and go largely unenforced.

Copying and counterfeiting are not perceived as legal wrongs, but as a means of extracting revenge from the West's relentless commercial conquest. The best evidence of this is that whereas the copying of Western products occurs all the time, local products are respected. The United States Trade Representative Special 301 report listed many Middle Eastern countries on their priority watch list for intellectual property infringement. In fact pirated compact discs and windows software versions are widely available on Middle Eastern markets. Western books are being translated and resold regardless of copyright issues and television programs continue to be  rebroadcasted without permission. Not to mention the widespread phenomenon of counterfeiting of luxury goods, vehicle spare parts and pharmaceutical products. On the other side it appears that there is an underlying policy of fundamental respect for works and ideas of other Middle Easterners. Local software is not being copied, but this might be motivated by the quality - but what is more interesting is that gold merchants appear to respect the integrity of local jewellery designs and not copy them. Is this a an informal code of intellectual property code when there is a local production nexus?

Illegal duplication and piracy are concerns that affect the whole world, but there are specific enforcement issues in predominantly Muslim countries. If governments would put more emphasis on the fact that the protection of intellectual property can be traced back to the fundamental concepts of Sharī'a and is not, as the common perception seems to show, a western phenomenon,  they would gain more public support. Some steps in this direction have been taken; Mufti Taqi Usmani of Pakistan publicly stated that there are no express provisions in the basic texts which limit ownership to tangible objects and that copyrights, patents, and trademarks are legitimate claims to ownership which give their owners the right to profit from these claims. In addition the Council of Islamic Fiqh Academy issued a resolution ruling that "nobody has the right to violate intellectual property claims". Putting emphasis on the fact that intellectual property rights can be reconciled with Sharī'a will result in an increased general willingness to enforce the laws that combat counterfeiting.

This is not to say that Westerners and Middle Easterners should perceive intellectual property rights, innovation policies and development issues in the same way; while western capitalism will continue to insists on exclusive self-interest and individual freedom, Islam has the potential to construe a notion of intellectual property protection within the broader religious principle that "all wealth belongs to God, who desires that it be owned equitably by all mankind". A change in terms of protection and enforcement of intellectual property laws in pursuit of economic development can come from within the Islamic culture and is thus not a borrowed concept.

2.     Revival or revenge? The example of Saudi Arabia

This desire of juxtaposition towards the West has lead to an extraordinary revival of Sharī'a based legislation which in some places has taken the form of fundamentalism and modern imposition of classical standards. Fundamentalism in this context is to be understood as a return to the fundamentals and ideals of the early Islamic Age and its adaptation to modern conditions by the reinterpretation of traditional principles in the light of a modern reality. A quest for authenticity is the underlying basis for this new emphasis on rethinking the law in light of religious reasoning.

Saudi Arabia perseveres to maintain a legal system based directly on the Sharī'a, almost resembling the classical system. Sharī'a's  principles are being applied in literal fashion and the legal system recreates the classical model with autonomous Muftis and Qadis. When ruling judges will generally follow the fatwas of the Muftis, they can use talfiq and choose whichever school they favour and practice individual ijtihad. Saudi scholars tend to strictly and rigorously apply their understanding of Islamic law. Even within this rigor in following the letter of Sharī'a the protection of intellectual property rights finds a way of being recognized because of the support it can draw from the sources. This shows that regardless of whether Islamic law is understood and interpreted in a more modern and reformist way or in a more fundamentalist tradition intellectual property rights can be accorded protection.

3.     Economics, trade and financial perspectives

The trade in global economies, modernization and the rise of importance of technology impact the Western as well as the Islamic world. Islamic norms on political and economic matters are crucial to the understanding that trade has to be promoted and that technology is part of it.

Commerce and trade are central to the Qur'anic tradition and positively encouraged by many Hadith. Prophet Mohammed's family was a family of merchants and trade was a highly praised and valued activity. Best proof of this is that the sources of Sharī'a explicitly legitimize private property, business transactions and commercial profit. However the norms regulating trade can be ambiguous and somehow broad if adapted to the modern context, therefore a sensible solution would be an attempt to reunite the spiritual and religious side of life with the political and commercial side. This is possible because, as discussed above, Sharī'a is not to be seen as a specific set of injunctions and rules but as a system that allows for rational thought and interpretation.

It is also useful to frame this analysis within a modern financial perspective, as the protection of intellectual property rights also functions to attract investments. The emphasis in Islamic banking is placed on a safer approach to risk and a careful analysis of the real value of an asset. When asked about investment strategies with regards to technology, which per definition involve intangible assets, Tariq Malhance, President of UIB capital, Inc. an Islamic financial institution investing capital in Sharī'a compliant projects, responded without hesitating that intangible assets have real value, depending on the demand. He dismissed any risk of gharar and held that a careful approach is always needed because all assets can turn out to have fluctuant and indefinite values regardless of their tangibility, but his point was steady: technology patents and other intellectual property rights can be freely traded and do not raise special issues within Islamic investment banking.

VIII. Conclusion: the change from within

For most predominantly Muslim societies religion is a major component of life. Many Muslims seek to ensure that everything they do is consistent with Sharī'a. Therefore it is crucial that any law which is to be effective complies with the principles of Islamic law. As the analysis above has shown, an accurate understanding of the principles of Sharī'a can be construed to provide support for the protection of intellectual property law.

Sharī'a is not only what is expressly delineated in the Qur'an and the Sunna, but also what the Muslim community believes it should be. This is why for most of its history Islamic law offered the most liberal and humane legal principles and adaptability to context. The best approach to Islamic principles is combining the letter of the law as set out in religious texts and other sources of jurisprudence with a reasoning that captures the spirit of the law. These are to be inextricably intertwined if a reasoning is to be sound and appealing.

Not providing for the protection of intellectual property rights hinders innovations and fails to stimulate economic development. Economic development is not an imposition of a new commercial western capitalism but as an innate concept in Islamic law. The Qur'an is explicit in the positive approach to economic development and Sharī'a is compatible with modern economic theory.

One question still remains: who is authorized to develop new interpretations? Understanding Sharī'a developed out of a dynamic between religion and state, and as time went by the emphasis shifted in favour of the state, but the state always allowed elements of Sharī'a to be present in various ways partly because it was a way to secure public approval and legitimacy. At the end of the day the effectiveness of a law is ultimately dependent on it being recognized by society. A state may implement laws that can be wholly or partially Sharī'a compliant, but the ultimate judge on the acceptance and effectiveness of such laws is the public at large.