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<nettime> Islam and IP
Nettime's cross-poster on Mon, 22 Aug 2005 20:49:51 +0200 (CEST)


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<nettime> Islam and IP


[via: commons Law <commons-law {AT} sarai.net>]

Monday, August 15, 2005
by: Mohamad Mova Al 'Afghani

One important matter contained within fatwas (edicts) recently issued 
Indonesian Ulemas Council (MUI) is the judgment that Intellectual Property 
(IP) violations are haram. This conclusion means that utilizing IP without a 
right is a violation of God's prescribed law and thus a sinful thing to do 
for a Muslim. MUI's argument is that Islamic law protects the rights and 
property of individuals and that Intellectual Property is also a form of 
property that is protected under Islamic law.

This is exactly the point at which MUI's argument could be mistaken.

Prior to issuing such an edict, the MUI should have investigated whether the 
concept of Intellectual Property is in fact a sui generis (unique, peculiar) 
Islamic concept. This is done by finding justifications in primary sources of 
Islamic law, which are the Koranic verses and hadith. It is certain that the 
MUI will find abundant verses and hadith stating that an individual's 
property must be protected.

However, it is quite certain that they will hardly find any verses or hadith 
that states that knowledge or ideas are protected under Islamic law. What 
they will surely find in those sources is that all knowledge belongs to God 
and that knowledge seeking and knowledge sharing is an obligation for all 
Muslims.

Under old Islamic customs there was a system of knowledge acknowledgement 
known as ijaza (certificate). If a person is to teach, quote or reproduce a 
certain knowledge, then he or she must obtain an ijaza from the author. This 
system of a chain of authority is designed to ensure authenticity in the 
passing of knowledge from one person to another, and also as a form of 
respect for authors.

Certainly, this kind of system was not created for financial benefit but 
rather for the sanctity of science. It only protects the moral right of an 
author to a certain degree. The knowledge itself belongs to God, not to any 
individual. The ijaza system certainly is not a form of copyright.

Copyright was a response to Gutenberg's printing revolution of the European 
Middle Ages. Conditions at that time required legal protection for authors, 
as book copying became easier due to the printing press. Prior to the 
invention of the printing machine, no economic right for authorship was ever 
granted specifically by any body of law. Authors were only granted the moral 
right for having created books.

After copyright, the concept that intellectual products could be 
proprietarized expanded into patent, which occurred during the industrial 
revolution. Since then, the concept of property has extended into 
intellectual products that consequently entail legal protection as normally 
granted to tangible property. By looking at the history of copyright and 
patent, it is conclusive that Intellectual Property is a concept developed in 
the West. It is thus not a sui generis Islamic legal concept.

Whether or not an idea expression can be proprietarized under Islamic law is 
still not certain. What the MUI has done through its fatwa is to make an 
analogy with the protection of tangible property available in Islam and 
further extending and applying it to intangible property.

In relation to whether IP protection serves our society's best interests, the 
answer is quite clear. IP protection, whether copyright or patent, has 
sparked much abuse. The emerging trend today is aimed towards limiting IP 
protection, as removing it entirely would not be possible for the time being. 
International moves through the draft Access to Knowledge Treaty purport to 
reduce and limit the length of IP protection.

"Copyleft" licenses are meant to get around ordinary copyright licenses in 
disseminating intellectual products. It would be in the interests of Islamic 
society to limit the concept of Intellectual Property, if not completely 
abolish it in the future. The World Intellectual Property Organization (WIPO) 
is currently putting together a "development agenda" that will shift its 
emphasis from "protection" to "knowledge access". Extensive IP protection is 
only in the interests of big corporations and advanced nations.

The language that the MUI used in its edict is also ambiguous as it determines 
the haram nature of a conduct if it "violates" a regulation. A violation of 
IP rights is determined by a verdict of a tribunal.

The MUI is silent in relation to which law and which tribunal can judge 
violation to be haram. IP protection in each country is different. Does the 
MUI refer to international law, Arabic law or Indonesian law?

If the MUI refers to Indonesian positive law, there are plenty of things under 
our law that are harmful to the transfer and promotion of knowledge. The 
copyright law for example, requires that relinquishment of rights needs to be 
conducted in a traditional written form. Moreover, the existing copyright law 
does not support transfer of knowledge. DVD/CD replication in libraries for 
archival purposes could be deemed as an infringement of copyright. The law 
also does not specifically allow teachers to copy their class materials for 
students.

The MUI should not link the concept of haram with violations of positive law. 
Aligning religious law with positive law will have severe consequences. 
Positive law is very dynamic, it may change from time to time. If the concept 
of haram is attached to positive law, then the state of haram may also change 
from time to time.

To summarize, the MUI's fatwa that supports IP could be misleading and is 
counter productive for the following reasons.

First, "Intellectual Property" is a not a sui generis Islamic legal concept.

Second, Islamic values favor the promotion, transfer and dissemination of 
knowledge, as compared to treating it as property.

Third, it is not in the best interests of Islamic society to extensively 
support IP protection. And fourth, aligning religious law with positive law 
will reduce the transcendentality of religious values, making it vulnerable 
to political abuse.

The MUI's fatwas are not binding, both in terms of religious or positive law. 
However, they have great psychological influence as the majority of 
Indonesian Sunni Muslims will tend to adhere to it.

Muslim society is currently being left out in terms of knowledge and 
scientific development. What Islamic legal scholars must do in responding to 
this situation is to revolutionize Islamic law so as to enlighten and 
liberate Muslim society from its dark ages, by limiting and reducing 
protection granted under the concept of Intellectual Property.

If the MUI does not wish to revolutionize Islamic law, then it should at least 
refrain from addressing the Intellectual Property issue. Importing a 
capitalistic legal concept and stamping God's word on it will not bring any 
benefits to society. Wallahu'alam.

The writer (movanet {AT} yahoo.com) is a lawyer and a lecturer.


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