Intellectual Property in Islam
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]
2011 Tōhoku Earthquake and Tsunami Post-Scenario in Japan
Japan, on Friday 11th March, 2011 has experienced the worst ever earthquake disaster in its modern history. It was followed by a deadly tsunami leading to massive destruction in the northern part of the country. The earthquake was caused by a 9.0-magnitudeundersea megathrust earthquake off the coast of Japan . The epicenter was approximately 72 km east of the Oshika Peninsula of Tōhoku, with the hypocenter at an underwater depth of approximately 32 km. On 1 April 2011, the Japanese government officially named this disaster resulting from the earthquake and tsunami as the “Great Eastern Japan Earthquake” with the duration of almost 6 minutes. It’s the fifth biggest earthquake ever recorded. It’s certainly the biggest to hit Japan for at least 140 years. The earthquake moved largest island of Japan, Honshu to 2.4 m (7.9 ft) east and shifted the Earth on its axis by almost 10 cm (3.9 in).
The earthquake triggered extremely destructive tsunami waves of up to 37.9 metres that struck Japan minutes after the quake. .Tsunami warnings were issued and evacuations ordered along Japan’s Pacific coast and at least 20 other countries, including the entire Pacific coast of the Americas soon after it hit Japan. The earthquake and tsunami caused extensive and severe life and structural damage in Japan, approximately 12,175 deaths, 2,858 injured and 15, 48 missing people have been confirmed. Many electrical generators were taken down, and at least three nuclear reactors suffered explosions after cooling system failure which resulted in build up of hydrogen gas within their outer containment buildings. Almost eleven nuclear reactors at The Fukushima I, Fukushima II, Onagawa Nuclear Power Plant and were automatically shut down following the earthquake.
At Fukushima I and II tsunami waves overtopped seawalls and destroyed diesel backup power systems, leading to two large explosions and radioactive leakage at Fukushima I. Japanese Nuclear and Industrial Safety Agency reported that radiation levels inside the plant were up to 1,000 times normal levels and that radiation levels outside the plant were up to 8 times normal levels. A state of emergency was declared at the Fukushima II nuclear power plant. Soil has been badly contaminated and radioactive cesium and iodine have also been detected in some places near Fukushima. Food products have also been contaminated by the radioactive matter in several places near the plants. The Fujinuma irrigation dam in Sukagawa ruptured, causing flooding and washing away of homes. The north-eastern ports of Hachinohe, Sendai, Ishinomaki and Onahama were destroyed, while Chiba port (which serves the hydrocarbon industry) and Japan’s ninth-largest container port at Kashima have been slightly affected. Japan’s transport and communication networks have suffered severe disruptions. Cosmo Oil Company JX Nippon Oil & Energy, were also set ablaze by the quake. The earthquake has changed the entire picture of Japan into a wrecked, naturally disastrous and a causality afflicted country.
The aftermath of the earthquake and tsunami included both a humanitarian crisis and a major social and economic impact. The tsunami resulted in over 300,000 refugees in the Tōhoku region, and shortages of food, water, shelter, medicine and fuel for survivors. In response the Japanese government mobilized the Self-Defence Forces; it has specifically requested teams from Australia, New Zealand, South Korea, United Kingdom, and United States for search and rescue operations. China has offered roughly $150,000 in aid to Japan for recovery and also sent its rescue team which is a positive step in improvement of relations between the two countries. According to Japan’s foreign ministry, 116 countries and 28 international organizations had offered assistance in the form of rescue teams, aid shipments and financial help to Japan.
The Japanese Prime Minister had immediately set up an emergency task force to respond to the disaster. Rescue and Relief operations were started. Post-disaster measures and disaster management teams were introduced. Aid organizations both in Japan and worldwide have responded, with the Japanese Red Cross reporting $490 million in donations. Russia had also send a special radiation treatment vessel to help dispose of contaminated water from a Japanese nuclear power plant crippled by this massive earthquake and tsunami on Japanese demand. The US troops almost 40,000 military personnel had been stationed across the country who played key role in the post tsunami clean up.
The drastic economic impact included both immediate problems, with industrial production suspended in many factories, and the longer term issue of the cost of rebuilding which had been estimated at ¥10 trillion ($122 billion). Early estimates placed insured losses from the earthquake alone at US$14.5 to $34.6 billion. Japan’s government said the cost of the earthquake and tsunami that devastated the northeast could reach $309 billion, making it the world’s most expensive natural disaster on record. The Bank of Japan offered ¥15 trillion (US$183 billion) to the banking system in an effort to normalize market conditions and to uplift the economic losses.
Even after almost a month now the economic and social situation is worst there. The country is still under slow process of recovery to get out of this natural calamity. Japan’s traditional pride in self-reliance doesn’t adapt easily to accepting foreign aid and help. It needs shrewd strategy to deal with the constructive use of foreign aid and physical assistance in order to speed up its recovery measures. To bring Japan back to its prior condition, this time and patience taking huge catastrophe, requires a gradual rehabilitation and reconstruction process. Although full recovery or pre-2011 Tōhoku Earthquake and Tsunami situation is not possible still hopes are high seeing Japan to be back to its normal routine life once again and to carry on with its status of being an “Asian Tiger”, the third largest economy and being among the most developed nations of the world even in the post-2011 Tōhoku Earthquake and Tsunami scenario.
The Real Outcome of the Recent Pak-US Official Visits
US vice President, Joseph Biden recent visit to Pakistan was a matter of great concern for the entire nation, media and our US-led government, which is strongly believed to be acting like a puppet in US hands after its failure to resolve the issue of military insurgency and continuous drone attacks in the tribal areas of Pakistan. It was a shrewd and tactful move on the part of the USA as the trust deficit between Pak-US relations continues to increase after the Indo-US nuclear deal, Obama’s visit to India and his endorsing India to become a permanent member of Security Council. Infact all these policies point directly towards its deep-rooted strategic interests and inclination towards India. The simple logic or reason behind all this is America’s fear of China and security threat from Pakistan. In the upcoming years it is not likely to be Iraq or Afghanistan. It’s Pakistan who can possibly become a safe haven for the terrorists and its previous Pro Taliban policy still haunts the Americans. USA alleges Pakistan’s ISI being supportive to these extremist elements and considers its nuclear arsenals being unsafe. Out of this fear, Biden has announced in his few days back visit to Afghanistan that USA forces would continue to stay and expected gradual withdrawal, starting this summer of US troops, can be postponed if Afghanistan wants, in order to prevent civil war and to fully eliminate the terrorists from its land.
America’s security depends greatly on Pakistan so it is bound to establish good ties with Pakistan and this surprise visit was another goodwill gesture out of courtesy and more likely out of its own self interest. In his visit, Joe Biden tried to clarify the misconceptions that prevail in Pakistan about US intentions and actions. He appreciated Pakistan’s fight against terrorism and reiterated US support to democracy in Pakistan and its stability. Biden assured that the new US administration would support Pakistan’s efforts to counter terrorism, religious radicalism and to meet its developmental needs and capacity building. He also expressed his condolence over assassination of Governor Salman Taseer. He assured Pakistan that no US boot will tread on Pakistani soil and there will be no violation of Pakistan’s sovereignty and territorial integrity,”
Our President Asif Ali Zardari recently also visited USA to attend the memorial services of Pak-Afghan envoy Richard Holbrook. There was no ceremonial welcome, no state banquet, and no joint presser, not even an opening statement on his arrival. No one is really quite sure what Zardari had hoped to accomplish, by meeting the US President and the state secretary Hillary Clinton as the two countries are battling an enormous trust deficit despite public protestations of cooperation in combating terrorism. The two leaders renewed pledges of cooperation over the aspects of the US-Pakistan strategic partnership, including mutual commitment to economic reform, support for good governance, democracy and joint efforts against terrorism. The discussion focused on shared efforts to fight terrorism, resolve the issue of blasphemy law and to promote regional stability, specifically on the importance of cooperating towards a peaceful and stable outcome in Afghanistan. However, Washington is not ready to pay any heed over the Kashmir issue and the real outcome of these two visits seems quite bleak for Pakistan, giving us neither new hopes for betterment nor any positive prospects for the future.
The years of US policies toward Pakistan based on financial allurements and conventional weaponry have done little to induce any change. Despite all these assurances, Pakistani nation is now skeptical of US motives having bad experiences in the past like drone strikes on Pakistani border areas, failure of Kerry Lugar bill and inadequate US material and financial aid for the war on terror and in crucial times of floods. These two visits are another deceptive picture by USA to allure Pakistan towards itself, after foreseeing Pakistan’s growing diplomatic and economic cooperation with China in December. No matter how much USA assures Pakistan of its staunch support, the atmosphere of misperceptions and doubts continue to hail around the country and America can never win the hearts and minds of Pakistani people through its fake assurances, callous policies and political/ military tactics as the two sides have a long way to go to overcome their significant differences. As it is well said that assurance cannot be bought but achieved only through mutual trust, cooperation and it requires time and experience.
THE SILENT MAJORITY
by Arslan Khalid
A couple of days ago Pakistan saw The Governor of its largest province murdered in broad daylight by his own security personal. The murderer has claimed it to be in reaction to governors’ statements against blasphemy law. Irrespective of the political turmoil it may have created, the society is divided into two groups over this issue. 5% people claiming it to be a justified act while 5% considers governor as a martyr .
Now where does majority 90% stand on this issue? Well they are once again busy doing their usual thing which is “to keep silent”.
Maulana Roomi once said that Nations die when they fail to differentiate between the right and wrong .It would have been very convenient to accept that our nation had died many years ago but the fact is that this silent majority of our nation has still got the ability to differentiate between right and wrong only if they can come out of their self created prison .Their major concern is just to pass there solitary lives in captivity without being disturbed. They have become immune to oppression and injustice. They have allowed a minority to rule over them and to represent them as a nation whether this minority be extremists or liberal fascists.
In Islam we are blessed with an eternal gift. A blessing that no other religion is offering which is a clear guideline to pass our lives. The whole message of Almighty is there in Quran and then elaborated clearly by Hadiths and the Holy life of The Holy Prophet (Peace be upon him).Unlike other religions where u follow a church or a synagogue to understand it, we Muslims can lead good,pious lives by studying Quran and Hadiths ourselves. So role of a Molvi becomes very well defined . His job should just be spreading the message of namaz,zakat and basic principles of Islam. If some Mullah tries to spread the message against the spirit of Islam which is peace why cant the majority sitting in mosque take a stand and ask him afterwards that he shouldn’t indulge himself in that domain. The little contribution on our part can save somebody from getting wrong meaning of Islam by that Mullah. However as followers, people need to understand that Islam is a religion and not a fashion that needs change with time. There is no radical or moderate Islam .The radicalization is a whole different phenomenon and has more to do with political and social issues than religious ones.
It will take long to explain causes for the radicalization and intolerance that we witness in our society so I would rather stick to my topic about the silent people out there who sometimes gather courage and decides to speak up but limit their voice to facebook or twitter only. alas!! Almost all my friends living abroad on watching governors’ murder news, updated their status on face book showing immense disappointment and remorse. Unfortunately none of them ever update their status when everyday drone attacks are killing innocent people in our tribal region .In an estimate 42% people who died in last yrs drone attack were just a collateral damage and the missile never differentiated between a child, a woman or a 70 yr old man. Last month people affected by drones from South and North Waziristan protested in Islamabad. Prominent human rights associations that claim to be champions of human rights in Pakistan and get dollars for their NGOs in return for their services never turned up for them. Nobody even bothered that a 8 year old child waiting for mercy after having lost his parents in drone attack is an ideal target to get exploited by terrorists.
Even American and British people adopted Iraqi orphans after Iraq war but our silent class has gone so selfish that they couldn’t help one of their own. Living their lives in fear and avoiding trouble, not foreseeing that few yrs from now this very child’s activity can give them some irreplaceable loss.
We always blame an individual for some act but never bothered that this was bound to happen. Give me one explanation why should we only blame an individual and never considered our silence responsible for the act. Why do we expect peace when we are so far from the concept of Islam? Why do we expect logical decisions from people when there is no effort of educating people on real issues? How can we expect a better future for us when we haven’t learnt anything from history? Why do we even think of being sovereign when we know we are being ruled by corrupt puppets of super powers and do nothing to remove them? We want people to be keep deep sentiments for the country but want to restrain their sentiments when somebody shows mala fide intentions towards the religion? How can we expect a great Muslim scholar to come out of some madarasa when we ourselves have generalized all madarasas as terrorist training centers and have labeled all students there as terrorists? Why do we hope for some genuine National heroes when we are busy making disputed people of past as heroes and martyrs? Why do people mention about Rule of Law and States authority to implement some law when the people running the state are the biggest thugs and frauds? why do we even mention about making better laws when the law makers are themselves the biggest law breakers? How can we wish for a revolution that can change the fate of this nation but aren’t willing to sacrifice for it? Aren’t these questions enough to tell that where we demand others to be clear in their heads we ourselves are confused? Last but not least why am I expecting answers to these questions when I know that these questions were addressed to ‘The Silent Majority’ of this nation which hopefully will one day wake up from the deep slumber they are presently in.
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