The Industrial Revolution in the 18th century was a significant landmark for the elevation of the Western ideological nations. Advances in technology, engineering, medicine, and science influenced all aspects of life, symbolising the transformation of industry and the transition of an artisan society towards one of mass production.
The idea of protecting intellectual property arose in the shade of the Industrial Revolution. The industrialist 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 Organisation (WIPO) was founded to oversee these agreements and guard them. In 1995 the World Trade Organisation adopted the idea of protecting intellectual property and so WIPO became part of the WTO. Thus, the WTO stipulated 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.
In the words of the WIPO itself:
“The need for international protection of intellectual property became evident when foreign exhibitors refused to attend the International Exhibition of Inventions in Vienna in 1873 because they were afraid their ideas would be stolen and exploited commercially in other countries” (http://www.wipo.int)
Essentially the question that arose was related to the apparent plagiarism of someone’s idea. In other words, does an idea belong to anyone? Can someone benefit from someone else’s idea? Is there any inherent value in an idea? Can any individual control the use, or non-use of an idea or invention?
The laws protecting intellectual property, up until now, give the individual the right to protect an invention and grant power of disposal and prevent others from using this invention without permission. The governments of all nations undertake the protection of this right and punish anyone who may transgress it during the lifetime of the individual, or even tens of years after the inventor’s death. The protection laws also include the ‘inventor’ companies.
In the context of intellectual property, what is meant by the ‘invention’ is the idea or knowledge that one’s mind has arrived at which has not been discovered by anyone before. The most significant inventions are regarding knowledge used in the manufacture and production of goods and services, or simply ‘technology’.
The laws of intellectual property, very broadly, embody the legal rights that result from intellectual activity in the industrial, scientific, literary and artistic fields. The laws of protecting intellectual property give the individual the right to protect an invention, granting the power to dispose of it and prevent others from using this invention without permission. This means that another person cannot come along and take science forward from where it is. A newcomer has to re-design and re-invent from scratch, rather than build on what already exists. As an example, only Microsoft can further develop ‘Windows’ (the operating system of the majority of personal computers on the planet). No one else can collaborate and build on the innovations and code already there, hence, there is greater interest in
‘Open Source’ software.
This can also be seen if a person buys a book or a movie that is copyright protected or if a life-saving anti-retroviral drug for HIV is discovered. All rights belong to the patent-holder who alone has the right to impose restrictions on the sale, consumption, or utilisation of the product.
Intellectual property is divided into two categories:
a. Industrial property: This includes inventions (patents), trademarks, industrial designs, etc.
b. Copyright: This includes literary and artistic works such as novels, poems and plays, films, musical works, etc.
A patent is a monopoly given by a government that confers exclusive rights upon the creator of an invention the sole right to make, use, and sell that invention for a set period of time.It is intended to prevent mechanical inventions, chemical processes etc. from being copied. A patent allows the holder to exclude anyone else from making, using or selling the ‘invention’ for up to twenty years, although this can be, and often has been, extended by clever manoeuvring for up to thirty years or even longer.
A patent provides protection for the invention to the owner of the patent. Patent protection means that the invention cannot be commercially made, used, distributed or sold without the patent owner’s consent. These patent rights are usually enforced in a court, which, in most systems, holds the authority to stop patent infringement.
A patent owner has the right to decide who may – or may not – use the patented invention for the period in which the invention is protected. The patent owner may give permission to, or license, other parties to use the invention on mutually agreed terms.
The system helps consumers identify and purchase a product or service because its nature and quality, indicated by its unique trademark, meets the consumers’ needs.
A trademark provides protection to the owner of the mark by ensuring the exclusive right to use it to identify goods or services, or to authorise another to use it in return for payment. Trademark protection is enforced by the courts, which in most systems have the authority to block trademark infringement.
Copyright and Related Rights
Copyright is a legal term describing rights given to creators for their literary and artistic works. It deals with printed publications, sound and television broadcasting and even computerised systems for the storage and retrieval of information. The original creators of works protected by copyright, and their heirs, have certain basic rights. They hold the exclusive right to use or authorise others to use the work on agreed terms.
This is the history and reality of intellectual property. Therefore what is required is the Shari’ah rule for ownership of sensed and tangible goods such as a trademark and a book and the non-tangible such as a scientific theory and an idea of an invention stored in the mind of a scientist. That is to say, what are the Shari’ah rules relating to the private ownership of assets and thoughts?
Islam has organised ownership by considering it an aspect of the survival instinct. Thus, it legitimised ownership for the Muslim to satisfy this instinct, which will ensure 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 whisky, bacon and crack cocaine. 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 such as selling, hiring and inheritance. It forbade him from utilising other means such as usury and gambling.
Ownership in Islam is the permission given by the Legislator to people to benefit from the asset. As for the private ownership, it is a Shari’ah 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 asserted as valid unless proven by the Shari’ah rule, and approved of its means of ownership. Thus, 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 the authority over the thing that he owns. It enabled him to freely dispose of it and benefit from what he owns according to the Shari’ah rules. It also obliged the Islamic State to protect private ownership. It laid down punishments to deter those who infringe upon the ownership of others.
In regards to intellectual property specifically, there are two types of private ownership. One of them is sensed and tangible such as a trademark and a book. The second is sensed but not tangible such as a scientific theory or an idea of an invention stored in the mind of a scientist.The ownership of the trademark is allowed, thus an individual can own it and benefit from it by utilising it or selling it. The Islamic State is obliged to protect this right of the individual. One will be able to freely dispose of it, and others will be prevented from infringing 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’ah. The trademark is an invented sign placed by the trader or manufacturer on products to distinguish them from the products of others, which assists the purchasers or consumers to recognise them. This definition does not include the trademarks that have not been used yet. This is different from Legislation in Europe, which 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. If one sells it to someone else, its benefit and rights of disposal are transferred to the new owner. The ownership of a scientific theory or an idea of an invention where the owner has not written down on paper or recorded on a disk/cassette, is initially the ownership of its owner. It is allowed for one to sell it or inform someone else about it if it has a value in Islam. If one does that then it is allowed for the one who then possesses it to legitimately dispose of it without any restriction from the first owner according to the rules of the Shari’ah. This rule also applies to anyone who buys a book, disk or cassette, which contains an intellectual subject, whether scientific or literary. One also has the right to read it and benefit from whatever information that may be in it. One has the right to dispose of it by copying, selling or donating it to someone. However, one is not allowed to ascribe the scientific subject to anyone other than the one who originated it, otherwise one would have made a lie and forgery both of which are prohibited by Islam. Thus, respecting intellectual property is an ethical right, which is realised when the thought is ascribed to the one who originated it and not by preventing others from using it without permission.
As for the conditions which have allowed the authors of books, programs, and inventors to stipulate in the name of intellectual protection such as the publishing rights, and the patent on an invention; these are not Shari’ah conditions. This is because the requirements of the contract of sale in Islam are different: just as it gives the purchaser the right to own it, it also gives the right to dispose of what is owned. Any condition that contradicts the requirements of the contract of sale, the purchaser is free not to observe it, even if there are a hundred conditions. As long as the conditions of protecting intellectual property make the use of the sold asset restricted to one sort of benefit to the exclusion of another, then they are invalid conditions and contrary to Islam. This is because it contradicts the requirement of contracts in Islam of selling, which enables the purchaser to freely dispose of, and benefit from, the asset in any legitimate manner such as selling, trade, gift etc. Therefore, there is no such thing in Islam as protection of publishing rights, copyrights and patents. Rather they are permissible rights. Thus, 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 goes out to others through teaching, selling, etc., then the knowledge is no more the thinker’s property. This is because it went out from ownership once sold. So the thinker does not possess the right to prevent others from freely disposing of it after its ownership has been transferred to them.
– Ownership in Islam is the permission of the Legislator for one to benefit from an asset. Private ownership is determined by the Shari’ah rule; this ascribes an asset or a benefit to an individual, thus enabling one to benefit from the asset itself. Thus, the right to own a thing does not arise from the thing itself or from the fact that it is beneficial as in the Capitalist model.
– Ownership in Islam means the right of disposal. The individual has authority over the thing that he owns. Islam enabled him to freely dispose of it and benefit from what he owns according to the Shari’ah rules. It also obliged the Islamic State to protect private ownership and laid down punishments to deter those who infringe upon the ownership of others.
– Thoughts are not subject to ownership. However every idea originates from a mind, hence the mind is the initial ‘home’ for any particular thought from the perspective of reality. Thus one can ignore it or dispense of it seeking a material value. However, once dispensed it cannot be subjected to copyright (as this is an invalid contract) or patent (as this is not subject to ownership according to Islam.)
– On the other hand, trademarks are sensed, tangible and have a material value because they are a component of a trade. Therefore, it is allowed for an individual to own it and the Islamic State is obliged to protect this right of the individual who will be able to freely dispose it, and others will be prevented from infringing upon this right.
[Extract taken from book: Islam in the 21st century]