Tuesday, December 23, 2008

The Shariah rule on patents, copyrights & trademarks

The following is a translation from Arabic.

بِسْمِ اللّهِ الرَّحْمَنِ الرَّحِيمِ

Protection of intellectual property: Its reality and its Shar'i rule

The idea of protecting intellectual property arose in the shade of the capitalist ideology. The industrialist capitalist nations concluded the Paris agreement for the protection of intellectual property in 1883, and the Bern agreement of 1886. Following them were no less than twenty other agreements. Then the World Intellectual Property Organisation (WIPO) was founded to oversee these agreements and guard them. In 1995 the World Trade Organisation adopted the idea of protecting intellectual property and so WIPO became part of the WTO. Thus, the WTO stipulated to the states that wished to join it that they must comply with the protection of intellectual property and pass laws binding on their citizens so as to protect the intellectual property in their lands.

The laws of protecting the intellectual property, which the states have passed, give the individual the right to protect his invention and grant him the power to dispose of it and prevent others from using this invention without his permission. The states undertake the protection of this right and punish anyone who may transgress it during the lifetime of the individual, and tens of years after his death. The protection laws also include the "inventor" companies.

What is meant by the invented product is the idea or knowledge, which a person's mind has arrived at which, has not been discovered by anyone before. The most significant inventions are regarding the knowledge used in manufacture and production of goods and services, which is known today as 'Technology'.

That is why the capitalists considered individual/private knowledge as wealth that is subject to ownership. It cannot be used freely by the one whom comes to know about it or learns it except by the permission or bequest of its owner according to certain measures. So if a person buys a book disk or cassette whose patent is protected, he has the right to benefit from only the copy he has bought within certain limits such as reading or listening. He will be warned, according to the laws of intellectual protection, from using them in other areas such as printing, copying, selling or trading.

What are the Shari'ah rules relating to the private ownership of assets and thoughts?

Islam has organised the private ownership by considering it an aspect of the survival instinct. Thus, it legitimised ownership for the Muslim to satisfy this instinct which will insure survival and a respectable life. Therefore, it allowed him to own most assets such as cattle, houses and the produce of the land. It forbade him from owning certain assets such as alcohol, pork and drugs.

Similarly, Islam encouraged him to use his intellect and seek knowledge and permitted him to receive payment for teaching others. It legislated means that permit ownership such as selling, hiring and inheritance. It forbade him from other means such as usury, gambling and sale by speculation.

Ownership in Islam, generally speaking, is the permission of the Legislator to benefit from the asset. As for the private ownership: it is a Shar'i rule valued by the asset or the benefit ascribed to the individual, thus enabling him to benefit from the asset itself or taking a compensation for it. Private ownership in Islam cannot be asserted as valid unless proven by the Shar'i rule, and approved of its means of ownership. Thus, the right to own a thing does not arise from the thing itself or from the fact that it is beneficial. Rather it only arises from the permission of the Legislator to own it by one of the legitimate means of ownership, such as selling or receiving a gift.

Islam has given the individual authority over the thing that he owns. It enabled him to freely dispose of it and benefit from what he owns according to the Shar'i rules. It also obliged the state to protect private ownership. It laid down punishments to deter those who infringe upon the ownership of others.

The new definition of intellectual property includes two types of private ownership. One of them is sensed and tangible such as a trademark and a book. The second is sensed but not tangible such as a scientific theory and an idea of an invention stored in the brain of a scientist.

If the ownership is of the first type such as the permitted trade mark. Then it is allowed for the individual to own it and benefit from it by utilising it or selling it. The state is obliged to protect this right of the individual. He will be able to freely dispose of it, and others will be prevented from infringing upon this right.

This is because the trademark has a material value in Islam since it is part of the trade allowed by the Shar'a. The trademark is an invented sign placed by the trader or manufacturer on his products to distinguish them from the products of others, which assists the purchasers or consumers to recognise them. This definition does not include the trademarks that have not been used yet. This is different from what some laws have defined them as: "Any mark that was used or was intended to be used".

This is because the value of the trademark results from it being part of an existing trade. It is allowed for a person to sell his trademark. If he sells it to someone else its benefit and disposal transfer to the new owner.

However, if the intellectual ownership is of the second type such as the scientific theory or the idea of an invention. The owner has not written down on paper or recorded on a disk or cassette, then it is the individual ownership of its owner. It is allowed for him to sell it or inform someone else about it if it has a value in Islam. If he does that then it is allowed for the one who possesses it to legitimately dispose of it without any restriction from the first owner according to the rules of the Shar'a. This rule also applies to anyone who buys a book, disk or cassette, which contains an intellectual subject, whether scientific or literary. He also has the right to read it and benefit from whatever information that may be in it. He has the right to dispose of it by copying, selling or donating it to someone.

However, he is not allowed to ascribe the scientific subject to anyone other than the one who originated it, otherwise he would have made a lie and forgery both of which are prohibited by the Shar'a. Thus, the right of respecting the intellectual property is an ethical right which is realised when the thought is ascribed to the one who originated it and not by preventing others from using it without his permission. This ethical right realises a moral right. However the capitalists concentrate, in all their actions and laws, on realising the material value, for it is the measure of their ideology in life. They even used the moral, humanitarian and spiritual values, which are instinctual in man, to realise the material value. Thus, as a result, they have drowned the world in evil and decay.

As for the conditions which have been stipulated by secular laws, and which allowed the authors of books, programs, and inventors to stipulate in the name of intellectual protection such as the publishing rights, and the patent on an invention. There are not Shar'i (legitimate) conditions and one is not obliged to adhere to them. This is because the requirements of the contract of sale in Islam, just as it gives the purchaser the right to own it also gives him the right to dispose of what he owns. Any condition that contradicts the requirements of the contract of sale, the purchaser is free not to observe it freely even if there are a hundred conditions. A'isha (RA) narrated: That Buraira

came (to 'A'isha) and said, "I have made a contract of emancipation with my masters for nine ounces (of gold) to be paid in yearly instalments. Therefore, I seek your help." 'A'isha said, "If your masters agree, I will pay them the sum at once and free you on condition that your Wala' (loyalty) will be for me."

Buraira went to her masters, but they refused that offer. She (came back) and said, "I presented to them the offer but they refused, unless the Wala' (loyalty) was for them." A'isha (RA) mentioned that to the Messenger of Allah (saw) so he said, "Do (it)" so she did. The Prophet (saw then got up and gave a speech to people, where he glorified and praised Allah, and said, "What about some people who impose conditions which are not present in the Book of Allah? So, any condition which is not present in the Book of Allah is invalid. Allah's ordinance is more deserving, and Allah's condition is more firm. Verily, the Wala is for the liberator." The wording (Mantooq) of the hadith indicates that the condition which contradicts what is in the Book of Allah and the Sunnah of His Messenger should not be adhered to. As long as the conditions of protecting intellectual property make the use of the sold asset restricted to one sort of benefit to the exclusion of another, then they are invalid conditions and contrary to what is in the Book of Allah (swt) and the Sunnah of His Messenger (saw). This is because it contradicts the requirement of the Shar'i contract of selling, which enables the purchaser to freely dispose of and benefit from the asset in any legitimate manner such as selling, trade, gift etc. The conditions which prohibit the Halal are invalid due to his (saw) saying: "The Muslims are bound by their conditions except a condition which forbids the Halal or permits a Haram." Therefore, it is not allowed in the Shar'a to protect publishing rights, copyrights and patents. Rather they are permissible rights. Thus, the thinker, scholar or inventor of a program owns his knowledge as long as his knowledge is with him and he has not taught it to others. However, once the knowledge went out to others through teaching, selling etc then the knowledge is no more his property. This is because it went out from his ownership when he sold it. So he does not possess the right to prevent others from freely disposing of it after its ownership has transferred to them through a shari'a means such as selling or other means.

As for the Fatwa which some computer disks hold stating is that: "It is not allowed to copy programmes which their owners, except with their permission due to his (saw) saying: "The Muslims are bound by their conditions." And his (saw) saying: "It is not allowed to take the wealth of a Muslim without his permission." And his (saw) saying: "Whosoever got a permitted thing ahead of others he is more entitled to it." The error of their fatwa comes from their generalisation of the expression 'their conditions' without specifying it to the exclusion made by the Messenger (saw) when he said: “except a condition which forbids a Halal.”

The last two hadiths have no relevance to the subject because of the subject of the hadith : "It is not allowed to take the wealth of a Muslim man...” Its reality is the wealth of others, while the computer disk has actually become the property of the purchaser. As for the other hadith: "Whosoever discovers a permitted thing first he is more entitled to it." Its subject is the public property like the hadith: "Mina (a Hajj site) is the abode (halting place) of the one who reaches (there) first", whilst the computer disk is a private property.

Indeed, the laws of protecting intellectual property are one of the styles of economic and cultural colonialism imposed by the capitalist superpowers on the states of the world and its peoples via the World Trade Organisation. So after these nations had gained ownership of technology, which is the knowledge relating to industry, and production of goods and services, they imposed their laws to hoard this knowledge and prevent other nations from benefiting from them, thus keeping their land's consumer markets for their products and so these nations subject to their influence, stealing their wealth and resources in the name of investment and globalisation.
Indeed, the Islamic Ummah is at the top of the list of the targeted nations. This is because the Kuffar know the strength of this Ummah and the danger to them if she returns to her ideology of Islam. Thus, they imposed on her their secular laws, like the law of protecting intellectual property and others to prevent her from the means of power and to distance her from her ideology. Accordingly the Muslims must understand the danger of the secular laws to their Deen and life. This is because the aim of these laws is to hoard the scientific knowledge and prevent others from benefiting of it. It is also to prevent them from reviving on the basis of Islam. Thus the Muslims are obliged to reject these laws and not adhere to them for they are not from Islam and were legislated to cause them harm.

It is incumbent on the Muslims to sacrifice every life and soul in order to re-establish the Khilafah State which will restore to them their power, unity and strength. Thus, they will be able rescue the world from the abyss of decline and from the capitalist colonisation and bring them to the justice of Islam.

He (swt) said:

“He it is Who has sent His Messenger (Muhammad [saw]) with the guidance and the religion of truth to make it victorious over all other Deens (ways of life) even though the mushrikeen hate it.” [As-Saff: 9]

Hizb ut-Tahrir
Wilayah of Jordan

21 Shawwal 1421AH
16/Jan/2001

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