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Copyright According to Shariah

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#1 [Permalink] Posted on 25th January 2007 21:48

Copyright According to Shariah


By Mufti Taqi Usmani








Q.) Can you please explain the Islamic injunctions about "copyright", especially about the copyright on computer software? The questions are:

(i) Can we register a book under the Copyright Act which bars the people from publishing that book without 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?





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 property" which extended the concept of ownership to some intangible objects also. The theory of "intellectual property" contemplates that whoever applies his mental labor to invent something is the owner of the fruits of his labor.


If a person has invented a certain instrument, he does not own the instrument only, but he also owns the formula he has used for the first time to invent it. Therefore, nobody can use that formula 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 intellectual 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, this concept is not expressly mentioned in the Holy Qur'an or in the Sunnah of the Holy Prophet, Sall-Allahu alayhi wa sallam.


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 Shariah. 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 scholars of Shariah whose opinions are different about its acceptability in Shariah.


A group of contemporary scholars does not approve the concept of "intellectual property". According to them the concept of ownership in Shariah 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 an intangible object has been subjected to private ownership 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 individuals 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 Shariah. They say that there is no express provision in the Holy Qur'an or in the Sunnah which restricts the ownership to the tangible objects only.


There are several intangible rights accepted and maintained by the Shariah, and there are several instances where such intangible rights have been transferred to others for some monetary considerations.


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 labor is more entitled to its commercial benefits, and any other person should not be allowed to reap the monetary fruits of the former's labor 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 author's permission, it will certainly violate the rights of the author, and the law of copyright protects him from such violation of his rights.


Both of these views have their own arguments. I have analyzed the arguments of both sides in my Arabic treatise "Bai-ul-Huqooq" 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. (iii). Coming to the question no. (ii), I would like to add that if the law of copyright in a country prevents its citizens from publishing a book without the permission of a 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 Shariah principles also 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 property" 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 on the other, and if it does so by a specific legislation, its decision is binding even on those scholars who have opposite view. It is an accepted position in the Islamic jurisprudence that the legislation of an Islamic state resolves the juristic dispute in a manner not expressly mentioned in the Holy Qur'an or in the Sunnah. Therefore, if an Islamic state promulgates a law in favor of the concept of "intellectual property" without violating 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 as an academic discussion, but they cannot violate the law in their 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 anything which is not permissible in Shariah. Therefore, if the law requires a citizen to refrain from an act which was otherwise permissible (not mandatory) in Shariah he must refrain from it.


Even those scholars who do not accept the concept of "intellectual property" do not hold that is mandatory requirement of Shariah to violate the rights recognized by this concept. Their view is that it is permissible for a person to publish a book without its 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 every citizen to abide by the law of copyright unless it compels a person to do an impermissible act, or to refrain him from a mandatory act under the Shariah.


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#2 [Permalink] Posted on 10th November 2013 03:18
Insha'Allah bumping this thread.

Some additions:

  • A Central-Mosque article on the issue (note the copyright, bottom right hand corner of page).
  • There are a number of really interesting replies to the issue of copyright elsewhere (sf) if anyone is interested, please do a search.
  • An overview about copyright in Canada - laws of the land for me. Feel free to share links to laws in your country.
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#3 [Permalink] Posted on 10th November 2013 05:43
There is also abook on this issue written by the majlis of South Africa its called:THE SHARIAH AND COPYRIGHTS

books.themajlis.net/node/331

Please take a look. Very informative.
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#4 [Permalink] Posted on 20th February 2014 17:10
Was going to add Mufti Taqi Uthmani sahibs ruling, MashaAllah found that brother Daywalk3r has already posted it above. More rulings...

Question

Ahmad The Repenter:

Asalaamu Alaykum.

I was listening to one of your responses on copyright issues,

Now I wanted to know, that the Islamic lectures which are produced and have copyright labels; shouldn't we obey it because lets look at it this way:

All the time and effort to record that lecture, then all the time and effort to edit and all the time and effort to make the cover and to make copies onto dvd and to place them in cases. now if we look at all of this it all adds up money, weather the ink, cd's etc..

And lets say an Islamic organization sells Islamic lectures and they produce it. Are we not suppose to support them by buying the product so they can produce more islamic lectures in the future and also people do this job as a living, so is the copyright feature haram to have after all these points are into thought?

So Insh'Allah can you clear up things for me.

May Allah reward you brother Shaykh Feiz Insh'Allah with the best of rewards Jannah.

Wasalaam Walakum Warahmatullahi Wabarakatuh.

Answer

Sheikh Feiz:

Asalaamu Alaykum warahmatAllah wabarakatahu.
Dear brother Ahmad the Repenter i ask the Almighty to increase your knowledge,knowledge that is implemented then taught then patience in the face of adversity is observed.

I appreciate your understanding to this issue,the issue of copyright in islam, and i do respect your view.However there are a few things that i believe that should be looked at before passing any judgements on this issue, for indeed it is an issue of great controversy.

-Firstly:Islam is not the property of an individual.The Quran and the sunnah are divine revelations revealed to man in order that they be followed.

-Secondly: There is no precedent in the glorious Word of the Almighty nor in the sunnah, nor in the views of the early jurists (fuqaha) that knowledge of islam can be subjected to private ownership or to sale and purchase.

-Thirdly:I see it as a major obstuction in the spreading of this beautiful deen,as many people can only afford their basic daily needs which i believe are the majority,therefore copyright prevents these people from learning their deen.

-Forthly:Many people buy their islamic material on line which in reality could lead to a prohibited act (i.e) credit cards etc...

-Fifthly:Copyright today for most people has become no more than business,where many people have lost the real focus of dawah which should be solely for the sake of Allah.

What i see from all this and much more my beloved brother Ahmad is that copyright is a major prevention of spreading this beautiful deen to the world.

Allah the Most High says in surat Ad-Duha:11 (interpretation of its meaning):
"And proclaim the grace of your Lord"

The prophet (peace be upon him) said:"Convey regarding me even if it were one verse"

He (peace be upon him) also said:"Whoever calls people to right guidance will have a reward like that of those who follow him,without that detracting from their reward in the slightest..."Narrated by Muslim, "

So how can one convey this beautiful deen which is the greatest treasure on this earth when he is prevented from doing so because of copyright.

May Allah the Almighty forgive us for our shortcomings and guide us to that which He loves and is pleased with.
This is my opinion and Allah knows best.
Sh Feiz,wa salam alaykum warahmatAllah wabarakatahu
Courtesy Of: Dhikrullah.com/forum

www.kalamullah.com/copyright.html
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#5 [Permalink] Posted on 20th February 2014 17:16
Copyright Issue By Shaykh Sulayman Ibn Nasir Al-'Ulwan

Shaykh Sulaymaan was asked about this issue once, and his reply included the following:

1-This is a contemporary issue in which the Scholars have differed.

2-Some have unrestrictedly rejected the idea, some have unrestrictedly accepted the idea, and some have explained it according to details.

3-His conclusion was that things that aren't your work cannot be copyrighted, such as works from the Scholars of the passed, like if someone takes it and claims rights to the work itself because the person happened to publish it.

4-If the person does the work himself, he has the right to copyright it in terms of buying and selling, in that it is not allowed for anyone to copy it and make money off of it except with his permission.

5-If someone wants to copy it in order to learn or teach, spread Da'wah, etc. he has the right to do so even if it is copyrighted, but cannot make money off of it. Also, if he can pay, he should, as it took time and money for the thing to be written and published to begin with.

Wa Allaahu A'lam.

www.kalamullah.com/copyright.html
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