Q. Can you please
explain the Islamic injunctions about the "copyright", especially
about the copyright on computer soft- ware? The questions are :
(i) Can we register a book under the copyright Act which bars the
people from publishing that book without the permission of the copyright
holder?
(ii) If something is registered under the law of copyright, should
we abide by the restrictions imposed by that law?
(iii) Can a copyright holder sell his right of publishing to another
person for a monetary gain?
(Khalid.
J. Ajhtar, Lahore)
A. The question of "copyright" is related to a wider
concept, generally known as the concept of "intellectual property".
In previous days the concept of ownership was confined to those tangible
commodities only which can be perceived through our five senses. But the
speedy progress in the means of communication gave birth to the new concept
of "intellectual pro- perty" which extended the concept of ownership
to some intangible objects also. The theory of "intellectual property"
con- templates that whoever applies his mental labour to invent something
is the owner of the fruits of his labour. If a person has invented a certain
instrument, he does not own that instrument only, but he also owns the
farmula he has used for the first time to invent it. Therefore, nobody
can used that farmula 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 also 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 intelectual 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, the concept is
not expressly mentioned in the Holy Qur'an or in the Sunnah of the Holy
Prophet (S.A.W).
The acceptability or otherwise of such new concept which are not clearly
mentioned in the original resources 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 cases. The question of "intellectual property" has also
been a subject of discussion among the contemporary Muslim Sch- olars
of Shari'ah whose opinions are different about its acceptability in Shari'ah.
A group of contemporary scholars do not approve the concept of "intellectual
property". According to them the concept of ownership in Shari'ah
is confined to the tangible objects only. They contend that there is no
precedent in the Holy Qur'an, in Sunnah or in the juristic views of the
Muslim jurists where in intangible object has been subject of private
owne- rship 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 monopoly of some indiv- iduals over knowledge, which can never
be accepted by Islam.
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 in the Sunnah which restricts ownership to
tangible objects only. There are several intangible rights accepted and
maintained by the Shari'ah, and there are several instences where such
in- tangible rights have been transferred to others for some monetary
consideration.
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 availing 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 has invented it by his mental labour is more entitled
to its commercial benefits, and any other person shou- ld not be allowed
to reap the monetary fruits of the former's labour 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 authors
permission, it will certainly violate the rights of the author, and the
law of copyright protects him from such violation of rights.
Both of these viewshave their own arguments. I have analysed the arguments
of both sides in my Arabic treatise "Discus- sion of Contemporary
Legal Issues" 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.
This is an answer to your question no (i) and no (ii).
Coming to the question no (iii), I would like to add that if the law of
copyright in a Country prevents its citizens from publi- shing 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, 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 prop- erty" 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 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 matter not expressly mentioned in the Holy Qur'an or in the Sunnah.
Therefore, if an Islamic state promulgates a law in favour of the concept
of "intellectual property". Without violat- ing 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 in acadmic
discussion, but they cannot violate the law in 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 in so far as they do not compel him to
do anything which is not permissi- ble in Shari'ah. Therefore, if the
law requires a citizen to refrain from an act which was otherwise permissible
(not mandat- ory) in Shari'ah, he must refrain from it.
Even those scholars who do not accept the concept of "intellectual
property" do not hold that it is a mandatory requirem- ent 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 it's 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 ever citizen to abide by the law of copyright
unless it compels a person to do an impermissi- ble act, or to prohibit
him from performing a mandatory act under the Shari'ah.
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