Research Paper, April 2013

Shariah Rule on

Copyright & Trademarks

Shariat Forum
( )

SHARIAT FORUM - A LEADING GLOBAL RESEARCH FORUM www.shariatforum.com | Email: shariatforum@gmail.com Facebook/shariatforum.official, Twitter/ShariatForum Location: Lahore, Pakistan | Phone: +92 345 4556646

Shariat Publications

Shariat Research Forum is a non-profit global research forum Publishing since 2012 Lahore, Pakistan 54000 No Copyright for Dawah & Research purposes Get the soft copy for free at shariatforum@gmail.com

Shariat Research Forum publications are printed on local and imported paper. This booklet is printed on paper with recycled content. Printed in Lahore, Pakistan References to Internet Web sites (URLs) are accurate at the time of writing. Neither the author nor Shariat Research Forum is responsible for URLs that may have expired or changed since the manuscript was prepared.

SHARIAT FORUM - A LEADING GLOBAL RESEARCH FORUM www.shariatforum.com | Email: shariatforum@gmail.com Facebook/shariatforum.official, Twitter/ShariatForum Location: Lahore, Pakistan | Phone: +92 345 4556646

Shariat Publications

The idea of protecting intellectual property arose in the shade of the capitalist ideology. The industrialist capitalist nations concluded the Paris agreement for the protection of intellectual property in 1883, and the Bern agreement of 1886. Following them were no less than twenty other agreements. Then the World Intellectual Property Organization (WIPO) was founded to oversee these agreements and guard them. In 1995 the World Trade Organization adopted the idea of protecting intellectual property and so WIPO became part of the WTO. So, the WTO demanded to the states that wished to join it that they must comply with the protection of intellectual property and pass laws binding on their citizens so as to protect the intellectual property in their lands. The laws of protecting the intellectual property, which the states have passed, give the individual the right to protect his invention and grant him the power to prevent others from using this invention without his permission. The states undertake the protection of this right and punish anyone who may disobey it during the lifetime of the individual, and tens of years after his death. The protection laws also include the "inventor" companies. What is meant by the invented product is the idea or knowledge, which a person's mind has arrived at which, has not been discovered by anyone before. The most significant

Shariat Publications

inventions are regarding the knowledge used in manufacture and production of goods and services, which is known today as 'Technology'. That is why the capitalists considered individual/private knowledge as wealth that is subject to ownership. It cannot be used freely by the one whom comes to know about it or learns it except by the permission of its owner according to certain measures. So if a person buys a book disk or cassette whose patent is protected, he has the right to benefit from only the copy he has bought within certain limits such as reading or listening. He will be warned, according to the laws of intellectual protection, from using them in other areas such as printing, copying, selling or trading.

Shari'a Rules Relating To The Private Ownership Of Assets?

Islam has allowed the private ownership by considering it an aspect of the survival nature. So, it legitimized ownership for the Muslim to satisfy this human nature which will insure survival and a respectable life. Therefore, it allowed him to own most assets such as cattle, houses and the produce of the land. It forbade him from owning certain assets such as alcohol, pork and drugs. Similarly, Islam encouraged him to use his intellect and seek knowledge and permitted him to receive payment for teaching others. It legislated means that permit ownership

Shariat Publications

such as selling, hiring and inheritance. It forbade him from other means such as usury, gambling and sale by speculation. Ownership in Islam, generally speaking, is the permission of the Legislator to benefit from the asset. As for the private ownership: it is a Shara'i rule valued by the asset or the benefit ascribed to the individual, thus enabling him to benefit from the asset itself or taking a compensation for it. Private ownership in Islam cannot be declared as valid unless proven by the Shara'i rule, and approved of its means of ownership. So, the right to own a thing does not arise from the thing itself or from the fact that it is beneficial. Rather it only arises from the permission of the Legislator to own it by one of the legitimate means of ownership, such as selling or receiving a gift. Islam has given the individual authority over the thing that he owns. It enabled him to freely benefit from what he owns according to the Shara'i rules. It also obliged the state to protect private ownership. It laid down punishments to prevent those who violate upon the ownership of others.

Modern Definition Of Intellectual Property

The modern definition of intellectual property includes two types of private ownership. One of them is sensed and touchable such as a trademark or a book. The second is sensed but not touchable such as a scientific theory or an idea of an invention stored in the brain of a scientist.

Shariat Publications

If the ownership is of the first type such as the permitted trade mark, it is allowed for the individual to own it and benefit from it by utilizing it or selling it. The state is obliged to protect this right of the individual. He will be able to freely benefit from it, and others will be prevented from violating upon this right. This is because the trademark has a material value in Islam since it is part of the trade allowed by the Shari'a. The trademark is an invented sign placed by the trader or manufacturer on his products to distinguish them from the products of others, which helps the purchasers or consumers to recognize them. This definition does not include the trademarks that have not been used yet. This is different from what some laws have defined them as: "Any mark that was used or was intended to be used". This is because the value of the trademark results from it being part of an existing trade. It is allowed for a person to sell his trademark. If he sells it to someone else, its benefit and disposal transfer to the new owner. However, if the intellectual property is of the second type such as; the scientific theory or the idea of an invention, the owner has not written down on paper or recorded on a disk or cassette, it is the individual ownership of its owner. It is allowed for him to sell it or inform someone else about it if it has a value in Islam. If he does that then it is allowed for the one who possesses it to legitimately benefit from it without

Shariat Publications

any restriction from the first owner according to the rules of the Shari'a. This rule also applies to anyone who buys a book, disk or cassette, which contains an intellectual subject, whether scientific or literary. He also has the right to read it and benefit from whatever information that may be in it. He has the right to benefit from it by copying, selling or donating it to someone. However, he is not allowed to attribute the scientific subject to anyone other than the one who originated it, otherwise he would have made a lie and fake both of which are prohibited by the Shari'a. So, the right of respecting the intellectual property is an ethical right which is realized when the thought is attributed to the one who originated it and not by preventing others from using it without his permission. This ethical right realizes a moral right. However the capitalists concentrate, in all their actions and laws, on realizing the material value, because it is the measure of their ideology in life. They even used the moral, humanitarian and spiritual values, which are the part of human nature, to realize the material value. So, as a result, they have drowned the world in evil and decay.

Sharia Rules Relating To The Invalid Conditions

As for the conditions which have been specified by secular laws, and which allowed the authors of books, programs, and inventors to demand in the name of intellectual protection such as the publishing rights, and the patent on an invention. There are not Shara'i (legitimate) conditions and one is not

Shariat Publications

obliged to adhere to them. This is because the requirements of the contract of sale in Islam, just as it gives the purchaser the right to own it also gives him the right to benefit from what he owns. Any condition that contradicts the requirements of the contract of sale, the purchaser is free not to observe it freely even if there are a hundred conditions. A'isha (RA) narrated: That Buraira came (to 'A'isha) and said, "I have made a contract of liberation with my masters for nine ounces (of gold) to be paid in yearly installments. Therefore, I seek your help." 'A'isha said, "If your masters agree, I will pay them the sum at once and free you on condition that your Wala' (loyalty) will be for me." Buraira went to her masters, but they refused that offer. She (came back) and said, "I presented to them the offer but they refused, unless the Wala' (loyalty) was for them." A'isha (RA) mentioned that to the Messenger of Allah (saw) so he said, "Do (it)" so she did. The Prophet (saw then got up and gave a speech to people, where he glorified and praised Allah, and said, "What about some people who impose conditions which are not present in the Book of Allah? So, any condition which is not present in the Book of Allah is invalid. Allah's ordinance is more deserving, and Allah's condition is more firm. Verily, the Wala is for the liberator." The wording of the hadith indicates that the condition which contradicts what is in the Book of Allah and the Sunnah of His Messenger should not be adhered to.

Shariat Publications

As long as the conditions of protecting intellectual property make the use of the sold asset restricted to one sort of benefit to the elimination of another, then they are invalid conditions and contrary to what is in the Book of Allah and the Sunnah of His Messenger (saw). This is because it contradicts the requirement of the Shara'i contract of selling, which enables the purchaser to freely use and benefit from the asset in any legitimate manner such as selling, trade, gift etc. The conditions which prohibit the Halal are invalid due to his (saw) saying: "The Muslims are bound by their conditions except a condition which forbids the Halal or permits a Haram." Therefore, it is not allowed in the Shari'a to protect publishing rights, copyrights and patents. Rather they are permissible rights. So, the thinker, scholar or inventor of a program owns his knowledge as long as his knowledge is with him and he has not taught it to others. However, once the knowledge went out to others through teaching, selling etc then the knowledge is no more his property. This is because it went out from his ownership when he sold it. So he does not possess the right to prevent others from freely benefiting from it after its ownership has transferred to them through a shara'i means such as selling or other means.

Some Misconceptions In The Muslim World

As for the Fatwa which some computer disks hold stating is that: "It is not allowed to copy programs which their owners, except with their permission due to his (saw) saying: "The Muslims are bound by their conditions." And his (saw) saying: "It is not allowed to take the wealth of a Muslim without his

10 Shariat Publications

permission." And his (saw) saying: "Whosoever got a permitted thing ahead of others he is more entitled to it." The error of their fatwa comes from their generalization of the expression 'their conditions' without specifying it to the prohibition made by the Messenger (saw) when he said: "except a condition which forbids a Halal." The last two hadiths have no relevance to the subject because of the subject of the hadith: "It is not allowed to take the wealth of a Muslim man..." Its reality is the wealth of others, while the computer disk has actually become the property of the purchaser. As for the other hadith: "Whosoever discovers a permitted thing first he is more entitled to it." Its subject is the public property like the hadith: "Mina (a Hajj site) is the abode (halting place) of the one who reaches (there) first", whilst the computer disk is a private property.

Global Fraud In The Name of Law

Indeed, the laws of protecting intellectual property are one of the styles of economic and cultural colonialism imposed by the capitalist superpowers on the states of the world and its peoples via the World Trade Organization. So after these nations had gained ownership of technology, which is the knowledge relating to industry, and production of goods and services, they imposed their laws to hoard this knowledge and prevent other nations from benefiting from them, so keeping their land's consumer markets for their products and so these nations subject to their influence, stealing their

11 Shariat Publications

wealth and resources in the name of investment and globalization. Indeed, the Islamic Ummah is at the top of the list of the targeted nations. This is because the Kuffar know the strength of this Ummah and the danger to them if she returns to her ideology of Islam. So, they imposed on her their secular laws, like the law of protecting intellectual property and others to prevent her from the means of power and to distance her from her ideology. Accordingly the Muslims must understand the danger of the secular laws to their Deen and life. This is because the aim of these laws is to hoard the scientific knowledge and prevent others from benefiting from it. It is also to prevent them from reviving on the basis of Islam. So the Muslims are obliged to reject these laws and not adhere to them because they are not from Islam and were legislated to cause them harm.

Khilafah, Way To Scientific Progress

It is prescribed on the Muslims to sacrifice every life and soul in order to re-establish the Khilafah State which will restore to them their power, unity and strength. So, they will be able to rescue the world from the hole of decline and from the capitalist colonization and bring them to the justice of Islam. Allah says in the Quran, [As-Saff 61: 9]

12 Shariat Publications

"He is the one Who has sent His Messenger with the guidance and the religion of truth to make it victorious over all other Deens (ways of life) even though the mushrikeen hate it."

UMMAH NATION STATE

KHILAFAH IS THE SOLUTION

SHARIAT FORUM - A LEADING GLOBAL RESEARCH FORUM www.shariatforum.com | Email: shariatforum@gmail.com Facebook/shariatforum.official, Twitter/ShariatForum Location: Lahore, Pakistan | Phone: +92 345 4556646 The mission of Shariat Forum is to show the complete picture of Islam in this modern age with the proper understanding of Islam and removing misconceptions about Islamic Shariah. Shariat Forum is striving to provide high quality research work on the subject of Islam and Islamic System at no cost.