To state without exception or qualification that there is no copyright in Islam would be to absolutise a position that is not only very relative, but one that also happens to be the view of a minority of scholars.
Copyright: a right
Copyright, as its very name indicates, is a right. A right maybe defined as something to which one has a just claim, or a power or privilege to which one is justly entitled. The concept of rights is as well founded in the Sharīʿah as in secular legal systems. There exists, in fact, sophisticated and detailed topologies of rights in the jurisprudence of the Sharīʿah, and there are provisions and regulations that pertain to each category of rights, not all of which would be of immediate relevance in determining the sharʿī status of copyright.
Copyright is one form of what has come to be termed intellectual property. This term denotes the fact that the thing owned is intangible and that it is the product of the mind of its originator. Patents and trademarks are other forms of intellectual property.
Ethical right
When something (e.g. a book, an invention, a cassette, or a compact disc) is produced by the creative intellect of a person, that person has, first and foremost, an ethical and moral right to be identified as its originator. In the world of Islam, and specifically amongst men of letters, this moral right has long enjoyed recognition and respect. However, did such respect and recognition also entail the acknowledgement of a proprietary dimension in terms of which the right becomes a commodity that may be bought or sold?
The past
It is a fact that in the distant past an owner or inventor’s right to his production, though recognized and respected, was not deemed as having a proprietary value. But having said that, it becomes necessary to investigate the reason for not regarding it as commercially exchangeable property. Was this due to its being intangible, or for some other reason? If intangibility and abstractness were the reason, then obviously nothing has happened in history to make the intangible tangible or transform the abstract into something physical, so this kind of right would remain without proprietary value. It appears, however, that the reason underlying the classical view that espouses the non-proprietary nature of such rights was not intangibility or abstractness, but something else—something that was definitely affected by developments in history.
In the past, when an author produced a book, copies of it could only be produced through the tedious labour of scribes. The process of producing manuscripts was so arduous that the attachment of a monetary value to the author’s right as originator of the book appeared irrational and absurd. Whatever monetary value could have been attached to it was reduced to insignificance by the enormous demands of manual scripting.
Developments in history
But all of this was destined to change with the invention of the printing press and subsequent advances in its development. The painstaking labour of the scribe was soon replaced by the speedy efficiency of the printing machine, and where the production of a single copy had once upon a time demanded literally hundreds of man-hours, it now became possible to produce hundreds, even thousands of copies within but a few hours. This revolution had one very significant by-product: the author’s right that under the previous system had been reduced to insignificance by the demands of manual labour, found the opportunity to reassert itself.[1] In due time ʿulamāʾ would begin to debate the sharʿī validity of the proprietary dimension of copyright and other similar rights.
Māl & ʿurf
A central axis in the debate was the definition of māl, or commercially exchangeable property, in the Sharīʿah. Tangible things—within the limits of certain criteria—were unanimously accepted as being māl; but when it came to the abstract usufruct (manāfiʿ) of tangible entities the fuqahāʾ differed: the majority accepted it as māl while a minority did not. A similar difference of opinion existed on property-related rights (as opposed to rights with no proprietary connection).[2]
In determining what sort of entities hold proprietary status due regard was given to the regulatory and revelatory role played by the juristic principle of ʿurf (custom). The very definition of māl as given by classical jurists indicates that it is based to a large extent on the norms prevalent in society.[3] Al-Suyūṭī, for instance gives the following two formulas as Imām al-Shāfiʿī’s definitions of māl: “Anything that may be assumed to have an effect in terms of benefit (nafʿ) would be māl; and anything that does not appear to be effective in the drawing of benefit would on account of its paucity not be māl.” Alternatively, “an entity with monetary value would be the kind of thing that acquires value when prices rise; whereas a thing devoid of monetary value would be the kind of thing that does not acquire (such value).”[4] The words of the Ḥanafī jurist Ibn Nujaym are even clearer in this regard: “Proprietary status (māliyyah) is established exclusively through the fact that all or most people come to treat [a thing] as property (tamawwul).”[5]
The modern age has seen the introduction of a number of intangible entities that have come to be accepted as māl virtually by consensus. Muftī Taqī Uthmānī writes: “The word māl is one of those general (muṭlaq) terms for which there is no definition in the Sharīʿah or the [Arabic] language. The task of explaining what it is therefore falls to the ʿurf of people. Usufruct (manāfiʿ) is one of those things that people have by ʿurf come to regard as māl, especially in this age and after the Industrial Revolution. Examples thereof are electricity, or gas, or solar power, which in earlier times were not regarded as property or entities with value due to the fact that they were not tangible entities that existed on their own, and physical possession of them was not possible. But these have now become of the dearest and most valuable forms of property about the sale and purchase of which there is no doubt whatsoever; since they have effectual benefit; it is possible to possess them; and people have by ʿurf come to deem them as māl having value. Rights of invention and authorship as well as other intellectual rights are included alongside these.”[6]
The manner in which a thing which once upon a time was deemed to have no or negligible monetary value, comes to acquire such value is explained by Dr. Muḥammad Saʿīd Ramaḍān al-Būṭī with the help of a parallel case: A person might be absolutely sure that a piece of land owned by him contains a precious metal deep underneath. Mining and refining would however cost him much more than what he would gain from eventually selling it. As a result the value of the precious metal dwindles into insignificance when compared to the difficulty involved in unearthing it. In such a case it would be correct to say that the ore in its present state does not, for all practical purposes, have a monetary value. When industry and technology eventually advance to the stage where the costs of mining and refining are reduced to a mere fraction of the original costs, the subterranean ore reclaims its monetary value.[7]
Opinions
The above has been the view of the overwhelming majority of ʿulamāʾ who investigated the matter. Ḥusayn ibn Maʿlawī al-Shahrānī in a dissertation on rights of invention and invention lists the names of close up to 40 scholars who affirm the Sharʿī validity of copyright, as opposed to 4 dissenting opinions.[8]
Implications
What are the implications of recognizing copyright as a valid proprietary right, and to what extent are others restricted from encroaching upon that right? If we were to take a book as an example, we will find two persons, each of whom has certain rights connected with that book.
The first is the author of the book. His rights are several: He has the right to be identified as the author of the book; no one else may claim authorship of it. He also has the right to publish the book; without his permission it may not be published. He also has the rights of ownership over every copy of the book if he himself published it. But as soon as he has sold a copy of the book to someone, the person who bought the book acquires certain rights over it.
The process of sale transfers all rights connected to the corporeal form of the book from the seller to the buyer. The buyer becomes fully entitled to do things such as write in the book, change the cover, remove parts of it, or sell it to another party. He may even make a copy of the book for his own use or the use of others. The area in which the recognition of copyright comes to affect him would be where his reproduction of the book is done in order to derive a profit from it. He may sell his own copy of the book at any price he chooses, but if he begins to reproduce the book and to sell the copies which he himself had reproduced, at a profit, he is selling something which he does not possess, and RasūluLlah ṣallaLlāhu ʿalayhi wa sallam expressly prohibited the sale of that which one does not possess.[9]
Thus there is a distinct difference between selling a book which one possesses, and reproducing in large numbers a book written by someone else. In the first case what is sold is the corporeal entity that constitutes the book. The seller owns it and may therefore sell it. In the second case he is selling not only the corporeal book itself, but he is also exploiting the abstract element which sprang from the effort and creativity of the original author. It is this element which the recognition of intellectual property rights seeks to protect.
This is then what copyright boils down to. The modern era has revealed the financial exploitability of this element. What the recognition of copyright says is that the right of financial exploitation of an article belongs exclusively to its originator, and he alone is entitled to sell it or grant it to whom he wishes. The exploitation of this right by others, who did not expend the same kind of effort or employ the same intellectual creativity to create the product, is in effect no different from theft.
Unwarranted notices
In copyright notices one sometimes comes across clauses such as “No part of this publication may be reproduced, photocopied, photographed, taped on audio cassettes, stored in a database or saved on a retrievable system in any form or by any means, without the prior written permission of the publisher.” I believe that notices such as these—which have their origin in the uncritical and unquestioning acceptance of copyright practices in the West—take copyright to lengths unwarranted by our Sharīʿah.
Simply photocopying a book does not in itself affect the rights of its originator. It is only when one seeks to make a profit from the sale of copies that encroachment of the originator’s right occurs, since it then comes to involve that dimension of the book which belongs not to the owner of the copy, but to the originator of the book. A clear line of distinction must be drawn between rights of ownership and rights of authorship. Mere reproduction of a product that is not motivated by the desire to sell for profit belongs in the realm of ownership. An owner would thus be permitted to reproduce what he owns. What is prohibited for him to do is to sell copies of it for a profit.
Copyright of non-Muslims
Under an Islamic dispensation the rights of non-Muslim citizens enjoy the same protection as those of Muslims. RasūluLlah ṣallaLlāhu ʿalayhi wa sallam was emphatic about the rights of such non-Muslims: “Whoever does an injustice to a muʿāhid (a non-Muslim whose rights are protected under an agreement with the Islamic state), or gives him less than his right, or burdens him beyond his ability, or takes something away from him against his will, will have me as his adversary on the Day of Qiyāmah.”[10]
It is only when non-Muslims are at war with Islam that the protection of their rights becomes compromised. In minority situations where Muslims are living in non-Islamic countries the observation of the proprietary rights of non-Muslims acquires even greater emphasis. The mere fact that a non-Muslim happens to be the owner of a particular intellectual right should therefore not to be taken as justification for seizing that right. Such seizure would constitute the kind of injustice referred to the in the above ḥadīth and would lead to a portrayal of Muslims as brazen opportunists. However, the Sharīʿah will not extend similar protection to the rights of non-Muslims who have embarked upon martial hostilities against Islam.
Dealing with juristic difference
The absence of absolute consensus on the issue, despite the fact that non-acceptance of copyright as a valid form of property is the view of the minority of scholars, means that there will inevitably be those who will opt to follow the minority opinion. How would this affect the rights of others who only desire protection and respect for what they believe to be their sharʿī rights?
Whatever one might want to believe about the phenomenon of juristic differences of opinion, I find it unthinkable that any sane and conscientious person could conceive the idea that the purpose of such differences is opportunism and exploitation. The sanctity of property is one of the highest ideals of the Sharīʿah. It is enshrined in numerous āyāt of the Qurʾān. Of particular interest here would be the āyah in which Allah says:
يَٰٓأَيُّهَا ٱلَّذِينَ ءَامَنُواْ لَا تَأۡكُلُوٓاْ أَمۡوَٰلَكُم بَيۡنَكُم بِٱلۡبَٰطِلِ إِلَّآ أَن تَكُونَ تِجَٰرَةً عَن تَرَاضٖ مِّنكُمۡۚ وَلَا تَقۡتُلُوٓاْ أَنفُسَكُمۡۚ إِنَّ ٱللَّهَ كَانَ بِكُمۡ رَحِيمٗا [النساء 29]
“O you who believe! Do not eat the property of one another in a wrongful manner, except if it be by trade, through your mutual consent. [al-Nisāʾ, 29]
The key term in this āyah has been underlined: mutual consent. Consent is only mutual if both parties agree to it.
Let those who prefer to follow the minority opinion restrict their practice to the waiving of their own rights, and restrain their hands from what others, on the basis of a well-founded view in fiqh, regard as their property. Abusing the rights of others on the basis of a view which they themselves believe in—whether for capricious purposes or otherwise—would be nothing other than an utter mockery of the Sharīʿah. Differences of opinion were never intended to defeat the very objectives of the Sharīʿah. A Muslim, after all, is he from whose hands and tongue fellow Muslims are safe.
I conclude with the timeless words with which Sayyidunā RasūluLlah ṣallaLlāhu ʿalayhi wa sallam concluded his address to his Ummah during the Farewell Ḥajj:
“O people, listen to my words and obey! You must know that every Muslim is the brother of the other and that all Muslims are brothers. Therefore, nothing is lawful for a man except such as is willingly given by his brother. So let there be no injustice amongst you. O Allah, have I conveyed?”
And Allah knows best.
References
[1] Dr. Muḥammad Saʿīd Ramaḍān al-Būṭī, Qaḍāyā Fiqhiyyah Muʿāṣirah vol. 1 pp. 89-91, Maktabat al-Fārābī, Damascus, 5th ed. 1414/1994
[2] Ḥusayn ibn Maʿlawī al-Shahrānī, Ḥuqūq al-Ikhtirāʿ wa l-Taʾlīf fi l-Fiqh al-Islāmī p. 218, Dār Ṭaybah, Riyāḍ, 1425/2004
[3] The idea that ʿurf has a role to play in the determination of that which is textually undetermined in Sharīʿah is expressed by al-Zarkashī as follows: “The fuqahāʾ say: Anything brought by the Sharīʿah without limitation, and which has no Sharʿī or linguistic defining axiom (ḍābiṭ) must be governed by ʿurf.” (al-Manthūr fi l-Qawāʿid vol. 2 p. 391, Wizārat al-Awqāf, Kuwait, 1402/1982)
[4] Al-Suyūṭī, al-Ashbāh wa l-Naẓāʾir p. 327, Muṣṭafā al-Bābī al-Ḥalabī, Cairo, 1389
[5] Ibn Nujaym, al-Baḥr al-Rāʾiq vol. 5 p. 430, Dār al-Kutub al-ʿIlmiyyah, Beirut, 1418
[6] Muhammad Taqī Uthmānī, “Bayʿ al-Ḥuqūq al-Mujarradah” in Majallat Majmaʿ al-Fiqh al-Islāmī no. 5 vol. 3 p. 2384, 1408. Note should be taken that he records the fact that a number of eminent ʿulamāʾ from the Indo-Pak subcontinent adopted similar positions on the issue. They are Muftī Kifāyatullāh, Muftī ʿAbd al-Raḥīm Lājpūrī, Muftī Niẓām al-Dīn, the muftī of Dār al-ʿUlūm Deoband, and Mawlānā Fatḥ Muḥammad, the pupil of Mawlānā ʿAbd al-Ḥayy, both of Lucknow. His own father, Muftī Muḥammad Shafīʿ, held a different view, but towards the end of his life instructed his son to reopen investigation on the issue. Unfortunately he did not live long enough to see the results of his son’s research.
[7] Qaḍāyā Fiqhiyyah Muʿāṣirah vol. 1 p. 92. Another case that presents a parallel of sorts could be the one discussed by many classical fiqh authors: One may not sell a bird flying in the air, but once the bird is captured it becomes a valid form of māl and may validly be sold.
[8] Ḥuqūq al-Ikhtirāʿ wa l-Taʾlīf fi l-Fiqh al-Islāmī pp. 238-241
[9] Sunan Abī Dāwūd no. 3508; Jāmiʿ al-Tirmidhī no. 1232
[10] Sunan Abī Dāwūd no. 3052