Sarmad Hasan Manto
Attorney at Law
United Trademark & Patent Services
sarmad@unitedtm.com; dubai@unitedtm.com
Impact of Shari'a on Intellectual Property laws
Introduction
The concept of Intellectual Property though prehistoric, the term is relatively new. In olden times when Intellectual Property laws were not promulgated, IP rights were protected under the more generalized principles of law, such as theft. The same concept is followed in Islamic Shari’a which though is silent on trademark, patent, design and copyright related issues, offered protection to these concepts as a personal asset.
Overview of Shari'a and Fatwa
Islamic Law as known as Shari’a finds its roots in the Quran (the holy scripture), the Sunnah (sayings and actions of Prophet Muhammad), Ijma (consensus of Muslim scholars), and Qiyas / Ijtihad (inference based upon the principles of Quran and Sunnah). Quran and Sunnah are considered as the primary sources of Shari’a, whereas Ijma and Qiyas / Ijtihad are the secondary sources which are relied upon when there is no direct stipulation in the primary sources concerning a certain matter.
The sources of Shari’a are briefly defined hereunder:
Quran
Quran is the primary and main source of law in Islam. Muslims believe that Quranic verses were revealed by God to the holy messenger Prophet Muhammad (PBUH) which were compiled in the form of Quran. The book was revealed over a period of 23 years starting 22 December 609 CE and ending in 632 CE. Quran is considered by the Muslims as words of God which provide code of conduct to all humans irrespective of their religion and ethnicity and hence forms as the main source of Shari’a.
Sunnah
Sunnah is a compilation of the sayings and acts of Prophet Muhammad (PBUH). Sunnah also includes the way of life of the Prophet which embraces his likes and dislikes and the manner in which he led his life. Along with Quran, Sunnah is considered as a primary source of Shari’a.
Ijma
The word Ijma means consensus. It was initially considered as the consensus of the Muslim community on any subject matter in the light of Quran and Sunnah, however, some of the scholars did not agree to this rule and considered Ijma as authentic if it was done by the companions of the Prophet. On the other hand, many scholars believe that an organization or group of Muslim scholars can render a binding Ijma which is mandatory upon Muslims to follow. It is considered as the third source of Shari’a and is referred to when Quran and Sunnah are silent on a certain subject.
Qiyas / Ijtihad
Qiyas / Ijtihad is personal inference based upon the principles laid down by the Quran and Sunnah when these sources of law do not prescribe a solution in a certain matter. Nonetheless, it is required that a ruling in Quran or Sunnah concerning a related matter is present through which it could be inferred that the same rule will apply for the matter which is not specifically dealt with in the primary sources of Shari’a.
Fatwa
Fatwa is a ruling given by an Islamic scholar concerning a particular matter in the light of primary and secondary sources of Shari’a. It is mandatory that the Faqih (the person who renders the Fatwa) should be an authority over Shari’a and offers the Fatwa in the light of Shari’a. It is also a prerequisite that the Faqih should provide detailed reasoning for rendering the Fatwa and includes pertinent references from the Quran, Sunnah and Ijma.
The stipulations of Shari'a are of five kinds, namely, mandatory, recommended, permitted, disliked, and banned.
Implication of Shari'a vis-à-vis Intellectual Property in the Middle East.
Shari’a is the main source of law in all Islamic states in the Middle East; however, each of these countries have codified their laws concerning Intellectual Property which assume precedence over any other form of law or ruling. These laws have been drafted keeping in view that they do not contradict the Islamic Shari’a. Accordingly, promulgation of Trademark, Design, Patent and Copyright laws is clear evidence that these branches of law are recognized in Islam or are not contradictory to the Islamic Shari’a.
Notwithstanding the aforementioned, the principles of morality, modesty and prohibition encompassed in Islamic Shari’a do impact registration and enforcement of Intellectual Property Rights in certain manner, which include the follows:
Morality and modesty:
The Islamic Shari’a prescribes to the principles of morality and modesty which discourage use of indecent language and nudity. Accordingly, the Islamic countries of MENA region do not register trademarks and copyright related to pornographic material, words which have indecent meaning or translations thereof and pictures which reveal naked or intimate men or women.
Prohibition
The Islamic Shari’a also prohibits alcohol, narcotics, pork, sex toys and gambling. Hence, trademarks, patents and designs related to the latter are not registerable or enforceable in most of the Islamic countries in the Middle East. In addition, some countries do not allow registration of trademarks related to bar and night club services.
Although the main sources of Shari’a are silent on Intellectual Property matters, references from the primary and secondary sources evidence that owning and enforcing Intellectual Property Rights is not forbidden in Islam.
A few stipulations from the primary sources are quoted hereunder for reference:
"Do not knowingly devour a portion of the property of others wrongfully"
Qur'an at 2:188
The above verse from the Quran clearly stipulates that it is forbidden to consume the belonging of another without his / her permission. The same principle is applied in Intellectual Property matters to prohibit use of a third party trademark, patent, design and copyright.
"It is forbidden to sell the fruit on the trees before it is ripe, because the buyer does not know if all the fruit will ripen or what its weight will be"
Qur'an at 5:90
The above verse applies to assignment, mortgage and licensing of unregistered rights, whereby, the laws and procedures of most of the Middle Eastern countries do not allow recordation of assignment, mortgage and licensing of trademark, copyright, patent and design applications which have not been granted registration.
"Nobody has ever eaten a better meal than that which one has earned by working with one's own hands"
Translation of Sahih Bukhari - Sales and Trade, vol. 3, book 34 at No. 286
The above Hadith (Sunnah) encourages creation and validates registration and protection of all sorts of Intellectual Property Rights.
"Verily your blood, your property are as sacred and inviolable as the sacredness of this day of yours, in this month of yours, in this town of yours".
Translation of Sahih Muslim, Book 7, The Book of Pilgrimage (Kitab Al-Hajj) chapter 17 , No: 2803
Similarly the above Hadith (Sunnah) extends protection to all sorts of property, which includes Intellectual Property Rights.
“Muslims must abide by their agreements, except an agreement that make Haram (unlawful) what is Halal (lawful) or make Halal what was Haram.”
At-Tirmidhi, Hadith No. 1272
The aforementioned Hadith (Sunnah) provides that Muslims should not break their agreements of any sort, including commercial agreements. This protection extends to Intellectual Property related agreements, such as licensing, confidentiality, non-disclosure, trade secret, franchising, mortgage and other such commitments.
Limitations
As stated above, Shari’a prohibits immorality and use of prohibited goods. Accordingly, most of the Middle Eastern countries do not register trademarks and copyright related to pornographic material, words which have indecent meaning or translations thereof and pictures which reveal naked men or women.
As Islamic Shari’a prohibits alcohol, narcotics, pork, sex toys and gambling, trademarks, patents and designs related to the latter are not registerable in many of the Middle Eastern countries. In addition, some countries do not allow registration of trademarks for bar and night club services.
Intellectual Property related Fatwas (Pronouncements)
There are several Fatwas which validate the registration and enforcement of Intellectual Property Rights. Examples of such Fatwas are reproduced hereunder:
International Islamic Fiqh Academy
The International Islamic Fiqh Academy affiliated to the Organization of Islamic Cooperation rendered the following Fatwa on December 10 - 15, 1988:
Trade names, corporate names, trademarks, literary productions, inventions or discovery, are rights belonging to their holders and according to contemporary conventions have an acknowledged financial value. Such rights are recognized by the Shari`a, and thus, should not be violated.
Further, it is permissible to dispose of a trade name, corporate name, or a trade mark for a price, as long as there is no fraud, swindling or forgery, since it has become a financial right.
Copyrights and patent rights are protected by the Shari`a; their holders are (fully) entitled to dispose them, and they should not be violated.
Ali Ahmed Mashael - Dubai Department of Islamic Affairs and Charitable Activities
Ali Ahmed Mashael, grand mufti at Dubai’s Department of Islamic Affairs and Charitable Activities, has given a Fatwa stating that infringement is forbidden because works protected by Intellectual Property Laws are the “fruit of human efforts” and using them without permission would constitute theft.
Al Azhar - Egypt
The Fatwa Committee of Al Azhar, Egypt states that “Islam gives the owner the freedom to dispense of the property owned thereby as he wishes; no other person may dispose of, copy, enjoy, use, or attribute such property without the prior consent of the owner, whether for a compensation or not.”
A Fatwa from Sheikh Al Azhar and The Fatwa Committee of Al Azhar has also prohibited any violation of rights in a computer software, though in many countries of the Middle East, such rights are still protected under the Copyright Laws.
Obstacles faced by Foreign Rights Holders.
In most Middle Eastern countries brand owners dealing in alcoholic beverages and pork are unable to register their Intellectual Property for these products.
Foreign applicants, who do not seek legal opinion from a local practitioner concerning the meaning of the candidate mark and its inherent registerability, at times face difficulty in registration if the meaning of the mark has an adverse connotation in the local language or the label consists of a picture which is considered indecent.
Divestiture of Intellectual Property in cases of unregistered rights also causes an issue as in most of the Middle Eastern countries unregistered rights cannot be assigned or licensed.
Foreign applicants who are in the business of gambling, night club, pornography and sex toys also face difficulty in registering and enforcing patents, designs, copyright and trademarks related to their inventions, creations and trademarks as the same is prohibited in most of the Middle Eastern countries.
Recommendations
It is recommended that brand owners should seek legal advice from local practitioners before trying to register their Intellectual Property Rights in the Middle East.
They should also avoid adopting a trademark which includes a word which violates the provisions of morality and pictures or shapes which do not comply with the decency requirements.
Corporations in the business of manufacturing and selling alcoholic beverages, pork, pornographic publications and movies or gambling should seek legal advice prior to venturing in the Middle East.