Copyright in Islam
Ml Mohammad Taha Karaan
What is the Islamic ruling on copyright? Some authors and publishers spend a great deal of time painstakingly writing books on Islam, and this for them is obviously a means of rizq. Without their permission low quality versions of the same books are published and mass distributed around the world. Shop keepers sell these books at huge profits, justifying this by saying that it’s cheaper than buying the original versions. Some ‘ulama say all of this is okay because there is “no copyright” in Islam. Please clarify.
To state without exception or qualification that there is no copyright in Islam would be to absolutise a position that is not only very relative, but one that also happens to be the view of a minority of scholars.
Copyright, as its very name indicates, is a right. A right maybe defined as something to which one has a just claim, or a power or privilege to which one is justly entitled. The concept of rights is as well founded in the Shariah as in secular legal systems. There exists, in fact, sophisticated and detailed topologies of rights in the jurisprudence of the Shariah, and there are provisions and regulations that pertain to each category of rights, not all of which would be of immediate relevance in determining the Shar’i status of copyright.
Copyright is one form of what has come to be termed intellectual property. This term denotes the fact that the thing owned is intangible and that it is the product of the mind of its originator. Patents and trademarks are other forms of intellectual property.
It is a fact that in the distant past an owner or inventor’s right to his production, though recognized and respected, was not deemed as having a proprietary value. But having said that, it becomes necessary to investigate the reason for not regarding it as commercially exchangeable property. Was this due to its being intangible, or for some other reason? If intangibility and abstractness were the reason, then obviously nothing has happened in history to make the intangible tangible or transform the abstract into something physical, so this kind of right would remain without proprietary value. It appears, however, that the reason underlying the classical view that espouses the non-proprietary nature of such rights was not intangibility or abstractness, but something else something that was definitely affected by developments in history.
In the past, when an author produced a book, copies of it could only be produced through the tedious labour of scribes. The process of producing manuscripts was so arduous that the attachment of a monetary value to the author’s right as originator of the book appeared irrational and absurd. Whatever monetary value could have been attached to it was reduced to insignificance by the enormous demands of manual scripting.
Developments in history
But all of this was destined to change with the invention of the printing press and subsequent advances in its development. The painstaking labour of the scribe was soon replaced by the speedy efficiency of the printing machine, and where the production of a single copy hand once upon a time demanded literally hundreds of man-hours, it now became possible to produce hundreds, even thousands of copies within but a few hours. This revolution had one very significant by-product: the author’s right that under the previous system had been reduced to insignificance by the demands of manual labour, found the opportunity to reassert itself.
In due time ‘ulama would begin to debate the Shar’i validity of the proprietary dimension of copyright and other similar rights.
Mal & ‘Urf
A central axis in the debate was the definition of mal, or commercially exchangeable property, in the Shariah. Tangible things within the limits of certain criteria were unanimously accepted as being mal; but when it came to the abstract usufruct (manafi’) of tangible entities the fuqaha differed: the majority accepted it as mal while a minority did not. A similar difference of opinion existed on property-related rights (as opposed to rights with no proprietary connection).
In determining what sort of entities hold proprietary status due regard was given to the regulatory and revelatory role played by the juristic principle of ‘urf (custom). The very definition of mal as given by classical jurists indicates that it is based to a large extent on the norms prevalent in society.
Al-Suyuti, for instance gives the following two formulas as Imam al-Shafi ‘i’s definitions of mal: “Anything that may be assumed to have an effect in terms of benefit (naf’) would be mal; and anything that does not appear to be effective in the drawing of benefit would on account of its paucity not be mal.” Alternatively, “an entity with monetary value would be the kind of thing that acquires value when prices rise; whereas a thing devoid of monetary value would be the kind of thing that does not acquire (such value).”
The words of the Hanafi jurist Ibn Nujaym are even clearer in this regard: “Proprietary status (maliyyah) is established exclusively through the fact that all or most people come to deem [a thing] as property (tamawwul).”
The modern age has seen the introduction of a number of intangible entities that have come to be accepted as mal virtually by consensus. Mufti Taqi Uthmani writes: “The word mal is one of those general (mutlaq) terms for which there is no definition in the Shariah or the [Arabic] language. The task of explaining what it is therefore falls to the ‘urf of people. Usufruct (manafi’) is one of those things that people have by ‘urf come to regard as mal, especially in this age and after the Industrial Revolution. Examples thereof are electricity, or gas, or solar power, which in earlier times were not regarded as property or entities with value due to the fact that they were not tangible entities that existed on their own, and physical possession of them was not possible. But these have now become of the dearest and most valuable forms of property about the sale and purchase of which there is no doubt whatsoever; since they have effectual benefit; it is possible to possess them; and people have by ‘urf come to deem them as mal having value. Rights of invention and authorship as well as other intellectual rights are included alongside these.”
The manner in which a thing which once upon a time was deemed to have no or negligible monetary value, comes to acquire such value is explained by Dr. Muhammad Sa’id Ramadan al-Buti with the help of a parallel case: A person might be absolutely sure that a piece of land owned by him contains a precious metal deep underneath. Mining and refining would however cost him much more than what he would gain from eventually selling it. As a result the value of the precious metal dwindles into insignificance when compared to the difficulty involved in unearthing it. In such a case it would be correct to say that the ore in its present state does not, for all practical purposes, have a monetary value. When industry and technology eventually advance to the stage where the costs of mining and refining are reduced to a mere fraction of the original costs, the subterranean ore reclaims its monetary value.
The above has been the view of the overwhelming majority of ‘ulama who investigated the matter. Husayn ibn Malawi al-Shahrani in a dissertation on rights of invention and invention lists the names of close up to 40 scholars who affirm the Shar’i validity of copyright, as opposed to 4 dissenting opinions.
Dealing with juristic difference
The absence of absolute consensus on the issue, despite the fact that non-acceptance of copyright as a valid form of property is the view of the minority of scholars, means that there will inevitably be those who will opt to follow the minority opinion. How would this affect the rights of others who only desire protection and respect for what they believe to be their Shar’i rights?
Whatever one might want to believe about the phenomenon of juristic differences of opinion, I find it unthinkable that any sane and conscientious person could conceive the idea that the purpose of such differences is opportunism and exploitation. The sanctity of property is one of the highest ideals of the Shariah. It is enshrined in numerous ayat of the Quran. Of particular interest here would be the ayah in which Allah says:
"O you who believe! Do not eat the property of one another in a wrongful manner, except if it be by trade, through your mutual consent." [al-Nisa 29]
The key term in this ayah has been underlined: mutual consent. Consent is only mutual if both parties agree to it.
Let those who prefer to follow the minority opinion restrict their practice to the waiving of their own rights, and restrain their hands from what others, on the basis of a well-founded view in fiqh, regard as their property. Abusing the rights of others on the basis of a view which they themselves believe in whether for capricious purposes or otherwise would be nothing than an utter mockery of the Shariah. Differences of opinion were never intended to defeat the very objectives of the Shariah. A Muslim, after all, is he from whose hands and tongue fellow Muslims are safe.
I conclude with the timeless words with which Sayyiduna Rasulullah sallAllahu alayhi wasallam concluded his address to his Ummah during the Farewell Hajj:
“O people, listen to my words and obey! You must know that every Muslim is the brother of the other and that all Muslims are brothers. Therefore, nothing is lawful for a man except such as is willingly given by his brother. So let there be no injustice amongst you. O Allah, have I conveyed?”
Notes and References
Dr. Muḥammad Saʿīd Ramaḍān al-Būṭī, Qaḍāyā Fiqhiyyah Muʿāṣirah vol. 1 pp. 89-91, Maktabat al-Fārābī, Damascus, 5th ed. 1414/1994 Another case that presents a parallel of sorts could be the one discussed by many classical fiqh authors: One may not sell a bird flying in the air, but once the bird is captured it becomes a valid form of mal and may validly be sold.
Ḥusayn ibn Maʿlawī al-Shahrānī, Ḥuqūq al-Ikhtirāʿ wa l-Taʾlīf fi l-Fiqh al-Islāmī p. 218, Dār Ṭaybah, Riyāḍ, 1425/2004
The idea that ‘urf has a role to play in the determination of that which is textually undetermined in Shariah is expressed by al-Zarkashi as follows:
The fuqaha say: “Anything brought by the Shariah without limitation, and which has no Shar’i or linguistic defining axiom (dabit) must be governed by ‘urf.”
(al-Manthur fi l-Qawaid vol. 2 p. 391, Wizarat al-Awqaf, Kuwait, 1402/1982)
Al-Suyuti, alAshbah wa l-Nazair p. 327, Mustafa al-Babi al-Halabi, Cairo, 1389.
Ibn Nujaym, al-Bahr al-Rahiq vol. 5 p. 430, Dar al-Kutub al-Ilmiyyah, Beirut, 1418.
Muhammad Taqi Uthmani,”Bay al-Huquq al-Mujarradah” in Majallat Majma al-Fiqh al-Islami no. 5 vol. 3 p. 2384, 1408.
Note should be taken that he records the fact that a number of eminent ulama from the Indopak subcontinent adopted similar positions on the issue. They are Mufti Kifayatullah, Mufti Abd al-Rahim Lajpuri, Mufti Nizam al-Din, the mufti of Dar al-Ulum Deoband, and Mawlana Fath Muhammad, the pupil of Mawlana Abd al-Hayy, both of Lucknow. His own father, Mufti Muhammad Shafi, held a different view, but towards the end of his life instructed his son to reopen investigation on the issue. Unfortunately he did not live long enough to see the results of his son’s research.
Qaḍāyā Fiqhiyyah Muʿāṣirah vol. 1 p. 92. Another case that presents a parallel of sorts could be the one discussed by many classical fiqh authors: One may not sell a bird flying in the air, but once the bird is captured it becomes a valid form of māl and may validly be sold.
Ḥuqūq al-Ikhtirāʿ wa l-Taʾlīf fi l-Fiqh al-Islāmī pp. 238-241