Legality of Ipr Under Islamic Law

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The Legality of Intellectual Property Rights under Islamic Law Silvia Beltrametti
Intellectual property rights are not regulated by Islamic law and jurisprudence per se. The issue is whether the principles of Islamic law can be constructed in a way to provide support for such protection. This paper assesses the extent to which Islamic law and its sophisticated tools have an impact on the protection of intellectual property. First it presents Sharī’a’s main sources; the Qur’an, the Sunna, Ijma and Qiyas and explains how many principles derived therefrom can accommodate intellectual property protection. It also sets out hurdles that have the potential to circumscribe such protection. Then it moves on to consider the effect of secondary sources. The following section examines the dynamics of interpretation of Islamic law over history and explores the impact that Sharī’a has on the enactment of legislation of modern governments. The concluding section briefly considers some tensions between the Western and the Islamic view on intellectual property and the role of economics within Islamic law and society. The arguments presented in this paper reveal that a Sharī’a based system is flexible and adaptable and that this flexibility is to be used in order to face economic reality. Keywords:

Islamic law, legal science, intellectual property
Published as:
Beltrametti, Silvia. The Legality of Intellectual Property Rights under Islamic Law. In: The Prague Yearbook of Comparative Law 2009. Mach, T. et al. (Eds). Prague, 2010. pp. 55-94.  
"Verily, in the creation of the heavens and of the earth, and the succession of night and day: and in the ships that speed through the sea with what is useful to man: and in the waters which God sends down from the sky, giving life thereby to the earth after it had been lifeless, and causing all manner of living creatures to multiply thereon: and in the change of the winds, and the clouds that run their appointed courses between sky and earth: [in all this] there are messages indeed for people who use their reason." Qur'an II:164

 
I. The evolution of the recognition of intellectual property rights Intellectual property is an ancient concept. Protection for original authorship in pre-Islamic societies was recognized for poets, who were compensated for the publication and distribution of their work[1].  Fine poetry was deeply regarded in the Arab world and authors enjoyed an enhanced social standing and respect. Lesser poets who plagiarized their work in an attempt to free-ride on their reputation were harshly condemned and cast from cultural society[2]. This shows that copyright protection was a recognized concept dating back to pre-Islamic civilizations. With the advent of the Islamic rule some of the rights pertaining to authorship were further advanced[3]. The state started to commission scholars to write about topics of interest and bought these works back from them once ready; the author would forfeit his rights in the work in exchange for compensation. Although pre-Islamic recognition of intellectual property rights was subsequently strengthened by the Islamic rule this recognition was never explicitly formulated but remained an accepted social norm[4].  In view of this historical development some basic forms of intellectual property rights can hardly be denied a claim under Sharī'a but since the advent of Islam the concept of intellectual property has expanded to include trademarks and patents and more sophisticated forms of copyright. What these intellectual property rights have in common is that they grant limited exclusive rights in exchange for the commercialization of an original creation that benefits society and they allow the owner to stop any unauthorized use by a third party. This expansion of intellectual property and the new challenges associated with new technologies, innovation and globalization render its justification under Sharī'a law more complicated. Nowadays many...
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