Long before John Locke's natural rights theory was used as a basis for granting a monopoly over intellectual property in continental Europe, and long before the founders of the United States drafted their constitution to allow Congress the power to "promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries", Islamic Sharia established principles to protect intellectual property.
Islamic Sharia theory established the right of humans to exploit creations for their benefit and for the benefit of the society. The only limitation Islam placed with respect to enjoyment of IP rights is that creations be within the permitted articles in Islam (Halal). For example, a book criticizing Jesus Christ is not a Halal article and would not qualify for copyright protection.
The rules establishing intellectual property under the Islamic Sharia theory include:
- Continuous benefit that outlives the right holder. The Hadith of Prophet Mohammed says that "works of a person that do not cease even after death are three: a continuing charity, a beneficial know-how or a worthwhile son". So, as opposed to the limited patent term of 20 years from the date of filing and the limited copyright term which runs for 50 years plus the life of the author as terms for enjoying the economic benefits of IP rights per international legislation, Islam had established a much greater reward in deeds that continue to account and benefit the author for many years, even after his death and until the day of judgement. As such, this principle granted intellectual property a wider recognition and a boost to encourage the development of IP rights by granting authors the right to enjoy deeds until the day of judgement in return for the useful knowledge, science or know-how they produce. In fact, Islam preceded the United States of America's Constitution declaration to promote the progress of science and useful arts by more than 1300 years.
- Moral rights and accuracy. The Isnad was developed by Muslims long before the evolution of the printing industry as a means to preserve and authenticate Hadith by tracking the chain of transmission acknowledging source of information up to Prophet Mohammed. Isnad therefore constituted the first applications for honouring moral rights and was thereafter carried over to various sciences.
- Financial reward. Apart from the benefits, deeds acquired and the moral rights recognized, Islam established exclusive rights of an author to appropriate the value of his/her ownership. As such, IP rights have been recognized as financial rights that may be exchanged, assigned and exploited.
- The protection of IP rights secured by equating IP infringement to theft. The penalties in Islam were based on the aim to deter and not to punish. As such, penalties in Islamic Sharia are severe resulting in secure strong protection for IP rights.
- The right of priority. The right of ownership was established by Hadith of Prophet Mohammed allowing the prior discoverer or creator of an intellectual right an ownership entitlement to that right.
In conclusion, the Islamic Sharia laid down principles for recognizing and protecting IP rights and held with high respect to intellectual property since Islam as a civilization was built on IP concepts, particularly preserving Hadith, which is one of the main sources of legislation in Islam.
As a result, IP infringement is a violation of Sharia and the duty to respect intellectual property is a religious one, not merely a parliamentary act. Moreover, intellectual property in Islam puts creations and discoveries and expressions into perspective: the objective is to be positive and useful.
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| Omar Obeidat |
Al Tamimi & Company
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