It is obvious that the concept of intellectual property on which the law of copyright is based is a new phenomenon created by the rapid progress of industry and the means of communication.
The Issue of Copyright
The following are frequently encountered issues for authors and software developers:
Can we register a book under the Copyright Act which bars the people from publishing that book without the permission of the copyright holder?
If something is registered under the law of copyright, should we abide by the restrictions imposed by that law?
Can a copyright holder sell his right of publishing to another person, for a monetary gain?
Mufti Taqi Uthmani, a learned scholar and [then] Justice of the Supreme Court of Pakistan answers:
The question of ‘copyright’ is related to a wider concept, generally known as the concept of ‘intellectual property’. In previous times, the concept of ownership was confined to only tangible objects. The theory of ‘intellectual property’ contemplates that whoever applies his mental labor to invent something is the owner of the fruits of his labor. If a person has invented a certain instrument, he does not own that instrument only, but he also owns the formula he has used for the first time to invent it. Therefore, nobody can use that formula without his permission. Similarly, if a person has written a book, he is the exclusive owner of the right to publish it, and nobody has any right to publish that book without his permission. This right of an author or an inventor is termed as his ‘intellectual property’. It is only implied in this theory that the owner of such rights can sell them to others like any other tangible objects. The law of ‘copyright’ has come into existence in order to secure such rights and to give legal protection to this kind of property.
It is obvious that the concept of intellectual property on which the law of copyright is based is a new phenomenon created by the rapid progress of industry and the means of communication. Therefore, this concept is not expressly mentioned in the Qur’an or in the Sunnah of the Holy Prophet. The acceptability or otherwise of such new concepts which are not clearly mentioned in the original sources of Islamic jurisprudence can only be inferred from the general principles laid down by the Shari’ah. As the views of the jurists may differ while applying these principles to the new situations, there is always a wide scope of difference of opinion in such case. The question of ‘intellectual property’ has also been a subject of discussion among the contemporary Muslim scholars of Shari’ah whose opinions differ about its acceptability in Shari’ah.
First View
A group of contemporary scholars does not approve of ‘intellectual property’. According to them, the concept of ownership in Shari’ah is confined to tangible objects only. They contend that there is no precedent in the Holy Qur’an, in the Sunnah or in the juristic views of the earlier Muslim jurists where an intangible object has been subjected to private ownership or to sale and purchase. They further argue that ‘knowledge’ in Islam is not the property of an individual, nor can he prevent others from acquiring knowledge, whereas the concept of ‘intellectual property’ leads to the monopoly of some individuals’ knowledge, which can never be accepted by Islam.
Second View
On the other hand, some contemporary scholars take the concept of ‘intellectual property’ as acceptable in Shari’ah. They say that there is no express provision in the Holy Qur’an or in the Sunnah which restricts the ownership to the tangible objects only. There are several intangible rights accepted and maintained by the Shari’ah, and there are several instances where such intangible rights have been transferred to others for some monetary considerations.
They contend that the concept of ‘intellectual property’ does in no way restrict the scope of knowledge because the law of ‘copyright’ does not prevent a person from reading a book or from averting of a new invention for his individual benefit. On the contrary, the law of ‘copyright’ prevents a person from the wide commercial use of an object on the ground that the person who invented it by his mental labor is more entitled to its commercial benefits, and any other person should not be allowed to reap the monetary fruits of the former’s labor without his permission. The author of a book who has worked day and night to write a book is obviously the best person who deserves its publication for commercial purposes. If every other person is allowed to publish the book without the author’s permission, it will certainly violate the rights of the author, and the law of copyright protects him from such violation of his rights.
The Author’s View
Both of these Views have their own arguments. I have analyzed the arguments of both sides in my Arabic treatise Bay-ul-Huqûq and have preferred the second view over the first, meaning thereby, that a book can be registered under the Copyright Act and the right of its publication can also be transferred to some other person for a monetary consideration.
Coming to the question of restrictions imposed by the law, I would like to add that if the law of copyright in a country prevents its citizens from publishing a book without the permission of the copyright holder, all the citizens must abide by this legal restriction. The reasons are manifold:
Firstly, it violates the right of the copyright, holder which is affirmed by the Shari’ah principles also according to the preferable view, as mentioned earlier.
Secondly, I have mentioned that the views of the contemporary scholars are different on the concept of ‘intellectual property’ and none of them is in clear contravention of the injunctions of Islam as laid down in the Holy Qur’an and Sunnah. In such situations, an Islamic state can prefer one view over the other, and if it does so by a specific legislation, its decision is binding even on those scholars who have an opposite view. It is an accepted position in the Islamic jurisprudence that the legislation of an Islamic state resolves the juristic dispute in a manner not expressly mentioned in the Holy Qur’an or in the Sunnah. Therefore, if an Islamic state promulgates a law in favor of the concept of ‘intellectual property’ without violating any provision of the Holy Qur’an and Sunnah, the same will be binding on all its citizens. Those who have an opposite view can express their standpoint as an academic discussion, but they cannot violate the law in their practice.
Thirdly, even if the government is not a pure Islamic government, every citizen enters into an express or a tacit agreement with it to the effect that he will abide by its laws insofar as they do not compel him to anything which is not permissible in Shari’ah. Therefore if the law requires a citizen to refrain from an act which was otherwise permissible (not mandatory) in Shari’ah he must refrain from it.
Even the scholars who do not accept the concept of ‘intellectual property’, do not hold the view that it is a mandatory requirement of Shari’ah to violate the rights recognized by this concept. Their view is that it is permissible for a person to publish a book without its author’s permission.
Therefore, if the law prevents them from this ‘permissible’ act, they should refrain from it as their agreement of citizenship requires them to do so. Therefore, it is necessary for every citizen to abide by the law of copyright unless it compels a person to do an impermissible act or it restrains him from a mandatory act under the Shari’ah.
———-
This article is extracted from Al-Rasheed (published by Jamiatul Ulama – Transvaal)