HEINONLINE Citation: 56 J. Copyright Soc'y U.S.A. 571 2008-2009 mit = Content downloaded/printed from HeinOnline (http://heinonline.org) FriSep 4 05:24:39 2015 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https:/www. copyright. com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simplegali=on&titleOrStdNo=0886-3520Intellectual Property: An Islamic Perspective sm INTELLECTUAL PROPERTY: AN ISLAMIC PERSPECTIVE by M.A. Naser & W.H. Munalsen® 1. INTRODUCTION In a world saturated with economic, political, and social concepts, re- ligious thoughts are becoming more crucial in the formulation of modern systems in certain areas of the law. In Middle Eastern countries in particu- lar, where Islam is most influential, many pieces of legislation adhere to Islamic principles. This article aims to establish an Islamic perspective to intellectual property rights, although clearly, Islam as a scriptural text never men- tioned intellectual properties authentically. One of the major Islamic rules argues that the principles of Islam are not restricted to the verses of the Quran, as received by Prophet Muhammad (PBUH)2 Therefore, in- tellectual properties could be justified in accordance with manifold Islamic sources, ‘The aim of this article is not to discuss principles of Islam as applied to intellectual property in their current format today, Rather, it aims to provide a justification to such rights? according to the “Public Authorship Model,” which argues for more public access to intellectual property tights. It is based on a social proposition as to the basis and nature of those rights on which intellectual property should be protected. Scholars consider that “iJnsofar as copyrights, patents, and [trademarks] have negative effects, they are hard to justify."* In this article, we will attempt to minimize these negative effects of intellectual properties by adopting a more equitable approach, which recognizes all the parties involved in the creation of these works. This would make such a justification for intellec- tual creations more amenable to Islamic principles. We shall start by dis- *Mon’d Naser & Walid Muhsisen are Ph.D candidates at the University of Leicester, U.K. We would like to thank Henning Grofe Ruse-Khan for his valua- ble comments on earlier drafis. We are also indebted to Andreas Rahmatian and Camilla Andersen. Fara at-Duray, Haga ALTBTIKAR #1 ALFIQH ALISLAMI AL-MUOARIN 10 (3d ed. 1981). 2 “PBUH is a commonly used acronym for the phrase “Peace Be Upon Him,” which is typically inserted after mention of the neme of Prophet Muhammed, 3 This article deals with the civil protection of intellectual property. Criminal protection shall be dealt with in further rescarch. 4 Edwin C. Hettinger, Justifying Intellectual Property, 18 PHL. & Pun. AFFAIRS 31, 36 (1989),572. Journal, Copyright Society of the U. cussing the need for an Islamic perspective on intellectual property. Then, we shall tackle the public authorship of intellectual property, as developed by this article, $0 as to identify Islamic support for this concept of public author Ul. THE NEED FOR ISLAMIC JUSTIFICATION The Islamic faith has an influential effect, and dictates much of the life of believers in general and the legislative Istamic system. According to Islam, the rules of Share’a have a universal nature.* As mentioned in the Quran: “And We have sent you (O Muhammad (PBUH) not but as a mercy for the ‘Alamin’ (mankind, Jinns and all that exists)."” According to Share’a, the roles of Islam tend to apply to all times and places.* This means that despite the lack of reference to intellectual prop- erty, one could still develop a justification thereof. This, however, is sub- ject to adherence to the Share'a law principles. If this adherence could be achieved, then such justification should be dealt with as a religious com- mitment, to which believers and Islamic states should be bound. It is likely that the best demonstration of the Quran's impact on and involve- ment with all aspects of life are; “We have not left out anything in the Book. ‘Therefore, the flexibility of Share’a principles helps to find a justifica- tion and solution to newly occurring matters which where never perceived by the times of Prophet Muhammad (PBUH), such as intellectual prop- erty. The Quranic verses could serve as guidelines to scholars, enabling ‘them to find modern Share’a rules for new upcoming subject matter. In support of this, Allah! mentioned in the Quran: “We have sent down the book to thee as exposition of everything and guidance and a mercy, and lad tidings for those who render perfect obedience.” 5 The term “Share’a” may be used either broadly, to refer to all law based on Islam, or narrowly, to refer to the binding set of rules governing Muslims. See Ahmed Z. Yamani, The Eternal Shari'a, 12 N.Y.U. JInt't L, & Pou'y. 205, 205-06 (1979), In’this article, the term Share'a is generally used in its ‘more technical, narrow sense. 6 WaEL HALLAG, THE Orteins AND EVOLUTION oF IsLamic Law 108 (2005). 7 Quran 21:107. 8 Hawitron A. R, Guns, Monammeoanism ~ A Historical. Survey 48 (1962). See also Hamatton A. R. Gia, IsLam ~ A Historica Survey 28 (1980). ‘See generally James N. D. ANDERSON, ISLAMIC Law IN THE MoD- RN Wort (1959), 2 Quran 638, 10 “Allah” is the standard Arabic word for “God.” Muslims best know the term Allah in the West for its use as a reference to God. 1 Quran 16: 89, 90.Intellectual Property: An Islamic Perspective 373 Accordingly, Islam paves the way for new justifications of intellectual property, The universality of Share’a would render such a justification ap- plicable, or indeed obligatory to all Islamic states and believers, provided that it has a wide range of consensus amongst scholars of Islam, If this could be achieved, then the universality of Share’a could assist in the globalization of modern intellectual property. This comes from the acceptance of intellectual properties in almost one-fifth of the people in the world.!2 Unfortunately, most of the population is situated in develop- ing countries and their devotion to the rules of intellectual property as a religious commitment would enhance the protection of works of intellect. ‘As such, an Islamic prospective to intellectual property seems to be vital to the modern international intellectual property system. However, ‘Share’a contains the principles of religious belief, moral virtues and a gen- cal legal system governing aspects of human behaviour.* Furthermore, the economic thought and practice within Islam together incorporate the «ethical principles and comprehensive purpose of Islam, which extend to all spheres of life, including civil and commercial issues. Consequently, there is no justification of intellectual property that could be supported by Share’a, but rather, an equitable justification that could fulfil the spiritual purposes of Islam “Makasid."!5 We shall now discuss this approach, as ‘manifested in the public authorship format. I PUBLIC AUTHORSHIP OF INTELLECTUAL PROPERTY ‘The concept of public authorship focuses on the manner in which in- tellectual property rights are created. It considers the rights of intellectual property owners as being limited ab initio: in this way, the public should enjoy competing interests with owners as genuine right holders!7 We 12 While there are 1.5 billion Muslims in the worl, there are about 200 milion ‘Arabs. Among them, approximately 10% are not Muslims. Thus, Arab “Maslims constitute oniy about 15% of the Muslim population of the world Islam 101, https/wwwislam101.comidawatvintrolstam.html (last visited Nov. 10, 2008), 15 Richard E. Vaughan, Defining Terms inthe Intellectual Property Protection De- bate: Are the North and South Arguing Past Each Other when We Say "Property"? A Lockean, Confucian, and Islamic Comparison, 2 1USA J. Int’ & Cone, L. 307, 350 (1996). 16 ALLAMAlt SAYYID M.H. TABATABA'I TH QURAN IN ISLAM: ITs IMPACT AND INFLUENCE ON THE Lift. oF MustiMs ch3 (1987). 15 MontaMMaD H. KaMAls, PRINCIPLES OF TsLAMIC JURISPRUDENCE (3d ed, 2005). 38 Lior Zewer, Tar Inca of AuTHoRsHiP in Copvaiont 9 (2007) 47 Steven Wilf, Who Authors Trademarks?, 17 CarDoz0 ARTS & Ext LJ. 1,34 (1999).S74 Journal, Copyright Society of shall outline the authorial process involved in creating of copyrights, pat- cents, and trademarks ‘This article forms part of wider scholarship'® which rejects the current deployment of utilitarian and economic justifications of intellectual prop- erty. The claim for this is based on providing maximum protection to the ‘owners at the expense of other involved parties."? The utilitarian literature argues that the monopolistic nature of owner protection would provide appropriate incentives Accordingly, the utility model is directed to- wards the protection of intellectual property rights owners, and fails to acknowledge any rights of other parties. This results in a distorting effect fon the culture as a whole because it hinders the public’s ability to be an active participant in the advent of modern societies. For example, in terms ‘of copyrights and patents, the U.S. Constitution provides that: “The Con- ress shall have Power. .. To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Clearly, this constitutional elause provides the utilitarian foundation of copyright and patent systems; it grants monopolies in favour of owners, and aims to provide them with appropriate incentives. Similarly, in re~ ards to trademarks, protection within current legislation is extended to a monopolistic scope, ‘This is evident through the adoption of the principles of dilution, and the unnatural expansion of the confusion concept2? As shall be clarified later, Share’a principles reject such monopolistic grounds. In contrast, the public authorship justification aims to give appropri- ate consideration to right holders on the one hand, and the public on the 48 Zewen, supra note 16. See also David Lange, Recognizing the Public Domain, ‘44 Law & Conran. Pross. 147 (1981); Jessica Litman, The Public Do- main, 39 Emory LJ. 965, (1990); Wil, supra note 17. 49 Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 Harv. L. Rev. 281, 291 (1970), 29 Peter S. Menell, Intellectual Propery: General Theories, in 2 Excycvorepia ‘oF Law & Economics 149 (Boudewijn Bouckaert & Gerrit de Geest eds. 2000). See also William M, Landes & Richard A. Posner, The Economics of Trademark Law, 78 TRADEMARK ReP, 267, 270 (1988); William M. Landes 4 Richard A. Posner, An Economie Analysis of Copyright Law, 18.1. Le. ‘Gat. Srup. 325 (1989); Nicholas S, Economides, The Economics of Trade- ‘marks, 78 TRADEMARK Rep. 523, 526-27 (1988). 21 US. Consr. art. 1, §8, el. 8 2 Lanham Act see. 43¢ (codified at 15 US.C. $1125 (2000)). See also Trade Marks Act 1954 art. 10 (UK); Marshall Leaffer, Sixty Years of the Lanham ‘Act: The Decline and Demise of Monopoly Phobia, in iret uectuAt PROP. exry Law anb Pouicy 111-31 (Hugh Hansen ed., 2006) 2 See infra section 4B.Intellectual An Islamic Perspective 575 other. This, in turn, fulfils the goal of achieving a just, attractive culture 2+ and “giving credit where it is due is fully compatible with both the author- regarding and the public regarding aspects of th{is} goal ...."25 As such, the public authorship model considers that copyrights, patents, and trade- marks are not the sole authorship of the author/owner. In copyrights, the author’s protection is restricted over hisMher expression of certain ideas. ‘Thus, ideas are open for all to use, and are by no means restricted to par- ticular individuals. Furthermore, the author adheres to the works of others and works in the public domain in the course of creating his/her work? Therefore, it is not acceptable to argue that rights in the work ‘belong solely to the author by himself/herself. They are, rather, owned by the public and the author as the “co-authors” of the created works. AS Zemer argues, “copyrightable expressions of art and authorship are not products of solitary genius; they are jointly created by public and authors."27 Similarly, inventors do not start their inventions from scratch; they base their creation on previous existing arts. The individual inventor bases his/her research on the existing state of the art, and equally, “stands on the shoulders of giants.” The application of utilitarian principles to patents recognizes the rights of inventors, and discredits the contribution of the public domain in the achievement of new inventions. Additionally, the incentive argument is an internally subjective point of view. As Fisher argues, “monetary or non-monetary rewards . . . would be sufficient to sustain current levels of production even in the absence of intellectual- property protection.”2® Moreover, the condition of novelty does not af- fect the dependence on the public domain; this is because nothing is abso- 2 William W. Fisher, Property and Contract on the Internet, 73 Cxt-Kent Le Rev. 1203, 1214 (1997-199). See also William Fisher, Theories of Intllec- tual Property, in New Essas IN THE LEGAL AND POLITICAL THEORY OF Paorenry 172 (Stephen R. Munzer ed., 2001). 25 Jane C. Ginsburg, The Right to Claim Authorship in U.S. Copyright and Trade- ‘marks Law, 44 Hous. L. REV. 263, 306-07 (2004). 26 Litman argues that: {Clopyright’s paradigm of authorship credits the author with bringing Something wholly new into the world; it sometimes fails to account forthe raw material that all authors use. This tendency can distort our under- standing ofthe interaction between copyright law and authorship. Specit- ically, it ean lead us to give short shrift to the public domain by failing to appreciate that the public domain is the law's primary safeguard of the ‘aw material that makes authorship possible. See Litman, supra note 18, at 967. 27 Lior Zemer, Towards a Conception of Authorial Knowledge in Copyright, 3 Burr. Inve. PRor. LJ. 83, 103 (2006). 28 Fisun, Theories of Intellectual Property, supra note 24, at 180. See also Het tinger, supra note 5, at 49.576, Journal, Copyright Society of the U. lutely novel, “There is no [one] who leaps significantly beyond present knowledge and creates something totally original ex nikilio.”2? Jessica Lit- ‘man argues that a work can never be absolutely original; rather, she argues that every piece produced is a product of many different influences and prior experiences. As Litman rightly argues: [ihe very act of authorship in any medium is more akin to translation and recombination than itis to creating Aphrodite from the foam of the sea. Composers recombine sounds they have heard before; playwrights base their characters on bits and pieces drawn from real human beings ‘and other playwrights’ characters; novelists draw the and other plots within their experience; software writers use the logic they find in other software; lawyers transform old arguments to fi new facts; cinematographers, actors, choreographers, architects, and sculptors all engage in the process of adapting, transforming, and recombining what is already “out there” in some other form. 2° ‘Therefore, in terms of authorship, there must be an element of using com- Ponents from the previous state of art. This, however, does not need to be ‘a material component, but could, rather, be a simple idea for instance; this should constitute a gateway for more public access to patents. Consequently, in both the cases of patents and copyrights, disclosure to the public is a vital requisite, This benefits the public through the infor- mation provided by the inventor/author, but more importantly is the rec~ cognition which the public gives to such works of intellect. One could invent an object, and an author can create a book, but if such works are not recognized by the public, they will never be awarded any value. On such grounds, this article considers that intellectual property rights are both legal and social entities. In trademarks, the owner's act of affixing the mark to his/her goods andlor services should not be the basis for his/her sole ownership. Rather, the consuming public's association is the most crucial aspect. The main issue here is that the trademark will never be attributed any intrinsic value without the recognition of the public. Thus, the life of the mark starts with a process of co-authorship by both the owner and the public. As Wilf observes: “A trademark is not a word or symbol but an association of an object with a sign. A trademark is not authored by the production/mar- keting of an object in its package but by a joint interpretive enterprise between author and public." ‘This argument does not in any way aim to exclude the rights of copy- rights, patents, or trademark owners. Owners do make an essential cont bution, as manifested by their initiatives in putting the work or the mark 29 Zener, supra note 16, at 28 30 Litman, supra note 18, at 966-67. 31 Wilf, supra note 17, at 46.Intellectual Property: An Islamic Perspective 77 into circulation, This should be reiterated. However, the argument fo- ccuses on the rights of both parties in this new formula. Such a formula includes both the owner and the public as co-authors, and consequently co-owners, of the protected subject matter. In the remainder of this article, focus shall be directed towards sup- porting the premise that this public authorship has a clear justification, in accordance with the Share’a principle. The points of crucial importance are the public role in the creation of the work or mark, and the anti-mo- nopolistic nature of the public authorship model. Finally, the public’s right to use copyrighted materials and trademarks in the course of their funda- mental right of “freedom of speech” shall be addressed in the light of Share'a, IV. THE APPLICATION OF ISLAM OVER PUBLIC AUTHORSHIP Copyrights, patents, and trademarks are considered as relations be- tween individuals? The objective of this section, therefore, is to highlight Islamic conceptions for several issues related to copyright, patents, and trademarks, such as the public’s right in obtaining public access, monopoly and freedom of expression. In order to reach these objectives, the relevant verses of the Quran and “Ahadith”®3 of the Prophet Muhammad (PBUH) and opinions of Muslim jurists are analysed to find out preferable views in this re ‘The Share’a originated from the direct commandment of Allah; how- ever, the provision of power is given to man in order to interpret and ex- pand the divine commandment by means of analogical deductions and through other processes.®® The main tool in indicating the “Makasid” is through the science and roots of Islamic law, “Usul al-fikh."™ It is well 32 ALAN LaTMAN eT AL, LaTMAN’s Tie Copynicnt Law 212 (1986). See also Mark Rose, AUTHORS aND OWNERS: THE INVENTION OF COPYRIGHT 6 (1985). 33 “Ahadith” is the plural word for “Hadith,” which means the oral traditions relating to the words and deeds of the Isiamic Prophet Muhammad. Hadith collections are regarded as important tools for determining the Sunnah, or Muslim way of life, by all traditional schools of jurisprudence. 34 Savyip MawpUDI, THE ISLAMIC LAW AND CONSTITUTION 52 (1980). 35 Parmick BANNERMAN, ISLAM IN PERSPECTIVE: A GUIDE TO ISLAMIC Sct ry, Pouitics aND Law 255 (1989). 36 Kamals, supra note 15, at 12. “Usul a-fikh" is a term, which literally trans lates as the roots of the law and refers to the study of the origins, sources, and practice of Islamic jurisprudence. In the narrow sense, it simply refers to the question of what afe the sources of Islamic law. ‘In an extended sense, it includes the study of the philosophical rationale of the law and the [procedures by which the law applicable to particular cases is derived from the sources.578. Copyright Society of the established that other sources classified as both consensus, “Jjma”>7 of “Ulam,”*® and analogical “Qiyas,”®” provide detailed understanding de- rived from the Quran‘® and Sunnah," covering the myriads of problems that arise in the course of man's life-*? We shall discuss the relevance of public authorship in the light of the “Islamic Jurisprudence” mentioned above. A. The Public Right Different Share'a sources attest to the fact that the Islamic religion is not limited to the sacred fulfilment or enlightenment of the individual, but rather, extends in a relative way to all matters concerning way of life.*? According to Islam, “Din,” the Arabic word for religion, encompasses the- ology, scripture, politics, morality, law, justice and all other aspects of life, relating to the thoughts or actions of men. It constitutes the commandments of Allah, as contained in the Holy Quran and the Sunnah of Prophet Muhammad (PBUH). Each Muslim is under a compulsory commitment towards his/her entire society in submis- sion with the obligations of the Quran and Sunnah. Therefore, a Muslim Tima” can ve defined as the consensus of the companions of the Prophet ‘Muhammad (PBUH) and the agreement reached on the decisions taken by the learned Juris on various Islamic matters. 35 “Ulama” isthe official Arabic term for “Islamic scholars.” 39 “Qiyas” could be defined, in Islamic theological parlance, as analogy, or ana- logical deduction. In other words, Qiyas is the legal principal introduced in ‘order to derive at a logical conclusion of a certain law on a certain issue that has to do with the welfare of the Muslims. 49 Jatat At Din’ At SuyuTi, 1 AL FroaN Fi Utu AL Quran 39-43 (1941). ‘See also Quran. 4:115, 42:38; Steven D. Jamar, The Protection of Intellectual Property Under Islamic Law, 21 Car. U. L. Rev. 1079, 1081 (1992) “41 “Sunnah” means way or custom. Therefore, the Sunnah of the Prophet means “the way of the Prophet.” or what is commonly known as the Prophet's traditions. Terminologically, the word “Sunnah” in Sunni Islam means the deeds, sayings and approvais of Muhammad during the twenty-three years, of his ministry, and this means that whatever he did during his ministry as a prophet and messenger of Allah is considered a Sunnah, which Muslims are ecommended to follow. Among Shia Muslims, the word “Sunnah” means the deeds, sayings and approvals of Muhammad and the twelve Imams who ‘Shia Muslims believe were chosen by Allah to succeed the Prophet and to lead humankind in every aspect of life, 22 Savvio Mawoubi, TowaRbs UNDERSTANDING [stam 127 (1993). 43 There are four primary sources of Islamic law which, with varying degrees of empha, are common tall sehools of aw. See fenerally ADDU Rea I. Dot & AnoassaMao CLARKE, SHARI'AH: THE IsLaMic Law 44 Dennis S. RoseRrs, Isami A Wesrenwer’s Guipe 35 (1981), Roberts also ‘adds: “it isnot that religion dominates the life of a faithful Muslim, but that religion, inthis comprehensive sense, is his lifeIntellectual Property: An Islamic Perspective 379 has to scrutinize, at every step, the distinction between what is right (“Halal”) and what is wrong (“Haram”).*5 This highlights the need and importance of being acquainted with the corpus juris of Islam Share’a, along with the conception of peoples’ rights4° ‘The main four scholars of Islam, Imam Abu Hanifa,*” Imam Malik,*# Imam Al Shafi”? and Imam Ahmad,” all agreed that copyrights, patents and trademarks are considered to be property. However, they did not deny the nature of the public right of this property. In Muslim belief, numerous verses in the Quran gave a clear indica- tion that Allah owns everything, and that property in the absolute sense belongs to Him, and to Him alone, For example, one verse says: “To Al- lah belongs the dominion of the heavens and the earth and all that is therein, and He is Able to do all things.”? Another verse states: Say (O Muhammad): © Allah! Possessor of the kingdom, You give the kingdom to whom You wil, and You take the kingdom from whom You will, and You endue with honour whom You wil, end You humiliate ‘whom You will In Your Hand is the good. Verily, You are Able to do all things. However, the right of ownership being with Allah alone does not mean that we, as human beings, do not also have the right to own prop- erty, it simply puts this individual right of ownership within a broader con- “5 Famwor ScHuon & ANNEMARIE ScHIMMEL, UNDERSTANDING ISLAM 70 (1998) 4 Islam makes no distinction between religion and life, hence, Islamic law covers ‘not only ritual but also every aspect of life. The actual codification of ca- nonical law isthe result of the concurrent evolution of jurisprudence proper and the so-called science of the roots of jurisprudence including legal regulations ‘47 The Hanifah school of Islamic jurisprudence (“igh”) was first founded by Nu- ‘man bin Thabit bin Zuta bin Maah, a non-Arab scholar who is well known as Imam Abu Hanifa 48 Malik ibn Anas ibn Malik iba ‘Am, al-Imam, Abu ‘Abd Allah al-Humyari al ‘Asbahi al Madani (711-795 A.D.), the Shaykit of Islam. The second of the four major mujtahid imams, whose school filled North Africa, al-Andalus (Spain), much of Egypt, and some of al-Sham (Syria), Yemen, Sudan, Iraq, and Khurasan (Central Asia). He is the author of al-Muwana’ (The Approved). 49 He was active in juridical matters and his teaching eventualy led to the Shafi ‘School of figh named after him. Hence, he is often called Imam Al Shall 0 tmam Ahmed ibn Hanbal (780-855 A.D.) was among the great Muslim schol: ‘ars and theologians. He is the founder of the Hanbali school of figh. His full name was Ahmed bin Muhammad Hanbal 5 AL-Duraynt, supra note 1, at 84 52 Quran 5:120. 53 Quran 326.380 Journal, Copyright Society of the U.S.A. text This can be noted in the Quranic verse: “It is He Who hath created for you all things that are on earth; moreover His design comprehended the heavens, for He gave order and perfection to the seven firmaments; and of all things He hath perfect knowledge."55 ‘Ownership is our responsibility, as trustees of Allah on Earth.* [tis clear in the Quran that there is no objection to the individual right to obtain a copyright, patent, or trademark.*7 In support of mankind’s own- ership, Allah tells the Prophet Muhammad: “Take from their property charity.”5* In this verse, Allah uses the term “their property,” showing that there is no contradiction between Allah’s ultimate ownership of the Universe and our right as humans to own within the restrictions that Allan has provided, ‘This Islamic role can be also found in the following verse: “And He has subjected to you, as from Him, all that is in the heavens and ‘on earth: Behold, in that are Signs indeed for those who reflect."5? According to Share’a, Allah, the Creator of all, knows that people the sake of gathering the various material means of the world. As such, Islam does not oppose human nature, given that it was fashioned by Allah, and allows for personal possessions, though they may be a great deal of all the wealth in the world.® Allah says in the Quran: It is We Who have placed you with authority on carth, and provided you therein with means for the fulfilment of your life: small are the thanks that ye givel® ‘my people! Worship Allah: ye have no other god but Him. It is He ‘Who hath produced you from the earth and settled you therein.©? ‘This Quranic verse shows that the rationale for granting property rights to mankind is to foster the bul fore, the denial of the public role, and the monopolistic nature of rights, cause distortive effects, and would not fulfil the rationale behind the above verse. 34°A similar approach was provided by Underkuffler. See Laura Underkutfer, ‘On Property: An Essay, 100 YALe LJ. 127, 128 (1990). 55 Quran 22. 56 See Quran 24:55 (“Allah has promised those among you who believe, and do righteous good deeds, that He wil certainly grant them succession to (the present rulers) in the earth, as He granted i to those before them..." 57 In other words, everything is presumed to be lawful, unless itis definitely pro- hibited by Share'a. See Quran 733. #8 Quran 9104, 89 Quran 45:13. © Agietar A. Awan, EQuauiry, EMriciency, AND PROPERTY OWNERSHIP IN Tt Istamic Economic Svsrem 5 (1984). 81 Quran 7:10. @ Quran 1161.Intellectual Property: An Islamic Perspective 381 Islam is more concerned with ensuring the rights of others’ property, and preventing all forms of stealing, usurpation and extortion. In fact, the severity of the Islamic punishment for stealing, when certain conditions are met and certain extenuating circumstances cannot be found, is an ex- ample of Islam's strong concern to exterminate such forms of oppression completely from society.®* ‘The Islamic ideals are based upon absolute justice at the personal as well as the socictal level. As is mentioned in the Quran; “Say, My Lord hhas commanded justice.”«6 ‘The same command is repeated in the follow- ing verse: “Allah commanded you to render back your trusts to those to ‘whom they are due, and when you judge between man and man that you judge with justice.” If a person strives hard and earns wealth that is subsequently stolen bby another or usurped by the state, this is the ultimate in injustice 67 Fur- thermore, if such arbitrary seizures of private property were pervasive in society, this would undermine the basis of material societal development. For these reasons, the Islamic model is highly concerned with preventing injustice, by protecting the rights of members of society to their personal property. ‘Accordingly, Share’a principles acknowledge the right of every party to take hisher due. This fulfils its main objective in providing justice amongst individuals. Thus, the application of such principles necessi- tates the adoption of the public authorship model as a comprehensive tool for maintaining this justice. Societal development, from an Islamic per- spective, would be enhanced through the recognition of the public's rights, as well as those of the owners, Yet the translation of Islamic principles in ‘accordance with the public authorship model requires the discussion of the aversion of Islam to monopoly, which opens the gate to the public to use copyrighted materials and trademarks in cultural and expressive contexts. @ "HazaM, 6 AL Mumauta 159 [The Swaeren) (1963). See also Yusur AL: QaRaDaii, ALHALAL WA-AL-MARAM FIAL ISLAM 321; THE LAWFUL AND ‘ue Prominrren Iv IStaM (Kamal El-Helbawy & Mohammed M. Siddiqui trans, 1978). 64 MUHAMMAD IN IBRAHIM AL-KinDi, BAYAN ALSHARI'A 59462 (1993). See ‘also Roaent GLEAVE & EUGENA Keraceut, IsLamic Law: THEORY AND Practice 76 (1997). 65 Quran 7:29. 66 Quran 458. 67 Haratp Morzxt & Manion H. Katz, THE Onicins oF IsuaMic JuRISFRU: DENCE: MECCAN Fig Berore THE CLAssicaL ScHoots 170 (2002). See generally IMRAN AHSAN KHAN Nyazee, Istamic Jurispaupence: Usui. ALFioit (2000). 68 Taw Masatt, SUNAN InN Masan (Krras at Hupup) 848 (2002). © See generally M. A. S. AgDeL HALEEM, EARLY ISLAMIC THEOLOGICAL AND Jurisnic TerminoLocy (1991).$82 Journal, Copyright Society of the U. B. Monopoly ‘The Quran supports the concept of money and wealth, “Mal,” that recognizes one’s right to accumulate such wealth. As such, income gener- ated by lawful practices is perceived as legitimate and acceptable. In this regard, it is worth noting that the Prophet Muhammad's family were merchants, and he himself praised trade and the individual's right to ac- quite hisMer livelihood.7® As mentioned above, public authorship does not contradict the principle of obtaining wealth and profits by creators and owners. Therefore, Share’a supports the owners’ rights to be preserved, albeit in a special context, and through various limitations such as ‘monopoly, Copyrights, patents, and trademarks should be co-owned by owners ‘and the public, and monopoly in favour of any of those parties should be prohibited. The concept of such a limitation on monopoly exists within Islamic law. It is best demonstrated in the restrictive, self-regulating Is- Jamie trade guilds.” According to Islam, monopoly rights in copyright, patents, and trade~ ‘marks should be highly restricted. In copyright, for example, an author ‘has no monopoly right to the copyright of his/her book for himself/herself unless he/she fulfils a number of conditions.” However, such a monopoly, if granted, is limited in scope.’ The most important of these conditions is whether the author is able to make some contribution to the field of knowledge. In addition, the contribution should not harm the public or should not lead them to the wrong path.”* If an author fulfils these conditions, according to modern standards, he/she would be entitled to receive his/her copyright protection during his! her lifetime, and after his/her death, for the benefit of his/her heirs.’ ‘This exemplifies the Islamic recognition of the owners, but at the same time, means that the door is always open for the public domain and for the limitations of the owners’ rights.”* By applying public authorship princi- ples, public and owners are co-authors of intellectual creations, and thus, they are also co-owners of their works. This harmonises with the Islamic anti-monopoly sentiment. Muslim jurists have determined this ruling 70 MicHA&t L. LanwiNo & Bos Rosensurot, THe BarrLe 100: THs Srorias Benno Hisronv's Most InrueNtia Barruss 72 (2003). 7 Vaughan, supra note 13, at 357. % Muhammad Amanullah, Author's Copyright An Islamic Perspective, 9 J. Worto Inreui. PRoP. 301, 306 (2006). 7 Id. See also ai-Duravni, supra note 1, at 145. 7 Any aspect which leads to the Path of Haram 73 aL-DURAYNI, supra note 1, at 145, 76 Mustafa 8. Habib, Copyrights Under Islamic Law, hitp://www.geocities.comy Eurekw/Concourse/S023/page3.himl (last visited Nov. 11, 2008).Intellectual Property: An Islamic Perspective 583 through an analogical presumption. That is, because an endowed land allowed to give us at least a maximum of sixty years for development, copyright protection should also remain for the heir of the author for sixty years.” In trademarks, the case in this regard seems a bit different, A trade- mark could last forever, provided that its owner is successful in keeping the mark in proper use. However, certain limitations might arise. Other traders have the right to use the mark in cases where confusion as to the source and origin of the goods and/or services is unlikely to occur. There- fore, the owner's possibly perpetual protection of a trademark should not, harm the rights of others, such as other traders and rivals, and more im- portanily the consuming public. Various Islamic resources express the re- jection of a complete monopoly. For instance, the Prophet (PBUH) mentioned: “Whoever monopolized is a wrongdoer.” Furthermore, the ‘Quran considers such a wrongdoer as a: “Hinderer of the good, transgres- sor, sinful."”? On such grounds of the Quran and Sunnah, Islamic jutis- prudence has developed the principle of “Al Masaleh Al Mursalah.” “Al Masaleh Al Mursaleh” and Intellectual Property ‘The “Masiaha"® doctrine calls for distributive justice.®" It legitimizes the restriction of personal ownership, to the benefit of the public.®? This doctrine is widely accepted by Islamic religious scholars.® One commen- tator even submitted that the Prophet Muhammad was, in fact, the leader of the first welfare state." Under Islam, this concept of “wealth sharing” for the “benefit/good of all” constitutes a compulsory requirement. Intellectual property rights could be classified under the doctrine of Al Masaleh Al Mursaleh®5 Such a doctrine involves public interest, which 77 Au-DuRAvMt, supra note 1, at 145, 78 Hadith Imam Muslim, No. 3111, eh. 4 (Monopoly). 78 Quran 68:12. © “Maslaha” is the concept of “public interest” or “the general good” that is used as 2 basis of legal decisions. % John L, Esposito, Muhammad, Prophet of God, in Te Ways oF Reticiow: ‘AN INTRODUCTION 70 THE MaloR TRabITions 371-73 (Roger Eastman, ed, 24 ed. 1993). #2 Noor Mohammed, Principles of Islamic Contract Law, 6 J:L. & RELIGION 115, 126 (1988) #3 Meunan Kamrava, THe New Voices oF Istam: REFORMING POLITICS AND MODERNITY: A READER 76 (2006). 4 See generally Tom Hundley, Muslims Find New Strength to Defend Ancient Values, 1 Detecrina FREE Press LJ. 89 (1987). 85 aL-Durayni, supra note 1, at 85-86384 Joui Copyright Society of the lacks any authentic text to support its existence or annulment, and aims to prevent any harm to the public by restricting private property.®6 Unlike some commentators” who considered the doctrine of Al ‘Masaleh Al Mursaleh as a banner of the application of Share’a over intel- lectual property rights, this doctrine supports the suggested public author- ship model for copyrights, patents, and trademarks, It calls for the restriction of the rights of creators of works and owners of marks, in fa- vour of more public access to such protected materials. D. Freedom of Expression According to Share'a, only lawful things and ideas are protected.®* However, the Islamic principle assumes that everything is presumed to be lawful, unless it is definitely prohibited by Share’a. Accordingly, any type of expression is deemed to be lawful in Islam unless it contradicts Islamic teachings? Legal rights, which include economic rights and moral rights, are not applicable to an intellectual creation that does not match the Islamic scale of Hala! and Haram, For example, literary works such as novels or poems which express descriptive ideas of a pornographic nature do not have any kkind of legal protection or any monetary rights.%° For instance, according to Share’a, the claim that using the mark for expressive uses in an explicit pornographic use could not form a basis for protecting the public’s use. For example, the prohibition of the use of the cheerleaders’ uniform in a sexual context in Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd? is considered as a proper judgment, and accords with Share’a principles. As such, even the protection of the pub- lic’s rights is subject to its adherence to the principles of Halal and Haram in Share'a. ‘An example from our modern day is the case of Salman Rushdie’s novel, The Satanic Verses. The gap between the two concepts of freedom of expression can be enormous from a modern viewpoint. Therefore, %5 Amanullah, supra note 72, at 306. See also Waban AL-ZuMAvii, At- IMU'AMALAT AL-MALIYYAH AL-MU'asiRaH 590 (2002). © Amie H. Khoury, Ancient and Islamic Sources of Intellectual Property Protec- tion in the Middle East: A Focus on Trademarks, 43 IL. & Tec. 151, 184 (2003). 88 AL-Qaapam, supra note 63, at 321 89 Id. at 320. 90 fd. at 321 31 604 F.2d 200 (24 Cir. 1979). 92 See generally MUHAMMAD MaNazin AHSAN & A.R. Kiowal, SACRILEGE, ‘Versus Civitiry: MUSLIM PERSPECTIVES ON THE SATANIC VERSES AFFAIR 2991),Intellectual Property: An Islamic Perspect Muslims consider secularists as spiritually barren. Secularists view Mus- lims as intolerant, self-righteous, behind the times, and having little or no respect for universal human rights that guarantee individuals the freedom of literary and artistic expression. A controversial case that occurred recently is the case of cartoonist. who made a controversial drawing portraying Islam’s Prophet wearing a turban shaped like a bomb. The Danish Union of Journalists says it will sue Dutch right wing politician Geert Wilders for copyright infringement for using a Danish cartoon of the Prophet Muhammad in his anti-Quran film Fitna, The union said that Westergaard did not give Wilders permis- sion to use the cartoon in his film, which it called “political propaganda,” Wilders’ film sets verses of the Quran against a background of images from terrorist attacks, The cartoon appears twice in Wilders’ ffteen-min- lute movie, which was posted on Wilders’s Web site, The union leader, Mogens Blicher Bjerregaard, told the Associated Press that, “The use of the drawing in Wilders’s film is a serious violation of copyright.” It is argued, according to modern copyright law, that Wilders has the right to make his movie. However, he has no permission to use Kurt Wes- tergaard’s drawing. In this sense, this has nothing to do with freedom of speech; we can see it is all about copyright. As illustrated in the above cases, according to Share’a, intellectual property is protected, in whichever form it is expressed, $0 long as it does not conflict with Islamic morality and principles. The Quran says: “And those who annoy believing men and women undeservedly bear on them- selves the crime of slander and plain sin."95 Western criticism of Islamic intolerance thrives on the free speech is- sue. Freedom of speech, embodied in the Universal Declaration of Human ‘Rights,% is a universal right that most Muslim nations have been deter- % David M. Smolin, Church, State and International Human Rights: A Theologh cal Appraisa, 73 Notre Dame L, Rev. 1515, 1523 (1998) % Ali Khan, islam as Incellectual Property “My Lord! Increase Me in Know! edge”, 31 Com. L. Rev. 631, 633 (2000-2001). See also Anthony Chas ‘Legal Guardians: Islamic Law, Intenaiional Law, Human Rights Law, and the Salmon Rushdie Affair, 1. Aw. U. Isr’ J, Inv’. L. & Pou'y 375, 377 (1996). "The author rightly comments that the Rushdie affair is much more complex than “strict dichotomies: Islam vs. the West; ... divine natural law ¥s positive law; ... the traditional vs. the modern.” 95 Quran 33:8 96 Article 19 of the Declaration states: “Everyone has the right to freedom of ‘opinion and expression; ths right includes freedom ro hold opinions with: ‘out interference and to seek, receive and impart information and ideas trough any media and regardless of frontiers.” Universal Declaration of Human Rights art 19.586 Journal, Copyright Society of the U. mined to protect.” However, the Islamic version of free speech is differ- ent from the Western version, particularly that of the United States. The First Amendment to the United States Constitution protects two promi- nent competing freedoms.%* First, it protects the free exercise of religion, 4 right without which no spiritual life is possible.® Second, it also protects free speech.'® It could be argued that the American concept of free speech, for the most part, is a precious contribution to global law.!2! However, on the other side, Share'a principles can also be the prime con- tributor to Muslims living under Islamic regimes who comprehend the s0- called freedom of expression as particularly similar to that of the jurispru- dence of the First Amendment. 97 Mohammed H. Kamali, The Approved and Disapproved Varieties of Ra'y (Per- sonal Opinion) in Islam, 7 Am. J. Istamic Soc. Sci. 39, 63 (1990). See also Mouanniso “H. KaMAU, FREEDOM OF EXPRESSION IN IsLAM 223-24 (1997); ABDULLAM SAEED, HASSAN SAEED, FREEDOM OF RELIGION, APOS- ‘Tasy AND Istane 37 (2004) 98 The United States Constitution, Amendment I, states: “Congress shall make no law respecting an establishment of religioa, or prohibiting the free exer- cise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Goverment for @ redress of grievances.” 98 Cantwell v. Connecticut, 310 U.S. 296, 310 (1940). The American concept of ‘freedom of religion ie derived from moral neutrality, presuming that no one religion has monopoly over divine truth, In the realm of religious feith, shag diernces arse. The ten of ong man may soem th rankest ert 10 his neighbour. To persuade others to his own point of view, the pleader ‘etorts to exaggeration and even to alte statement, However, the people of this nation have ordained that these liberties are essential to enlightened opinion and right conduct on the part of the citizens of a democracy. 400 In the United States, several judicial principles articulate the nature and scope of free speech. See, e.g., Police Dep't of Chicago v. Mosley, 408 U.S, 92,95, 4102 (1972) (holding thai the government may not regulate speech based on its content unless the regulation can survive strict scrutiny). See also Perry Educ. Ass'n. v. Perry Local Educators’ Ass'n., 460 US. 37, 45-49 (1983) (aying that the government cannot lawfully regulate speech when a certain ideology or perspective is the rationale for the restriction); City Council of ‘Los Angeles v. Taxpayers for Vincent, 466 U:S. 789, 804 (1984) (explaining that in the reaim of private speech, law may not favour one speaker over another); R.A.V. v, St. Paul, $05 U-S. 377, 381-96 (1992) (stating that vie int discrimination is prohibited); Rosenberger v. Recior & Visitors of niv. of Va., $15 US, 819, 835-37 (1995) (pointing out that a university may not suppress religious speech under the Establishment Clause of the First Amendment). 101 James Y. Sadowski, Prospects for Democracy in the Middle East: The Case of ‘Kuwait, 21 Fuerener F. Wort Arrains 57, 65 (1997) (describing the sup- pression of politcal speech in Morocco, Syria, and Algeria). See albo Twomas Crores, Mania OTTAWAY, UNCHARTED JOURNEY: PRO- MOTING DEMOCRACY IN THE MiDpL® East 183 (2005),Intellectual Property: An Islamic Perspective 587 V. CONCLUSION ‘The Share'a is based on the Allah's teachings. They are considered, by Muslims to be sacred and just rules. Any justification of copyrights, patents, and trademarks which do not accord with the moral claims and teachings of Islam could not be applicable in Muslim states. This Article adopts the public authorship model as an equitable approach. Copyrights, patents, and trademarks are not the sole creation of their owners. The public is an active component in the process of “authoring” such intellec- tual property rights. This article has argued that the public authorship model is, indeed, the rational basis for such systems. The merits of this model lie in its adherence to flexible Islamic principles, and makes it a ‘workable solution to intellectual property enforcement in our modern society.