[via: commons Law ]

Monday, August 15, 2005
by: Mohamad Mova Al 'Afghani

One important matter contained within fatwas (edicts) recently issued
Indonesian Ulemas Council (MUI) is the judgment that Intellectual Property
(IP) violations are haram. This conclusion means that utilizing IP without a
right is a violation of God's prescribed law and thus a sinful thing to do
for a Muslim. MUI's argument is that Islamic law protects the rights and
property of individuals and that Intellectual Property is also a form of
property that is protected under Islamic law.

This is exactly the point at which MUI's argument could be mistaken.

Prior to issuing such an edict, the MUI should have investigated whether the
concept of Intellectual Property is in fact a sui generis (unique, peculiar)
Islamic concept. This is done by finding justifications in primary sources of
Islamic law, which are the Koranic verses and hadith. It is certain that the
MUI will find abundant verses and hadith stating that an individual's
property must be protected.

However, it is quite certain that they will hardly find any verses or hadith
that states that knowledge or ideas are protected under Islamic law. What
they will surely find in those sources is that all knowledge belongs to God
and that knowledge seeking and knowledge sharing is an obligation for all
Muslims.

Under old Islamic customs there was a system of knowledge acknowledgement
known as ijaza (certificate). If a person is to teach, quote or reproduce a
certain knowledge, then he or she must obtain an ijaza from the author. This
system of a chain of authority is designed to ensure authenticity in the
passing of knowledge from one person to another, and also as a form of
respect for authors.

Certainly, this kind of system was not created for financial benefit but
rather for the sanctity of science. It only protects the moral right of an
author to a certain degree. The knowledge itself belongs to God, not to any
individual. The ijaza system certainly is not a form of copyright.

Copyright was a response to Gutenberg's printing revolution of the European
Middle Ages. Conditions at that time required legal protection for authors,
as book copying became easier due to the printing press. Prior to the
invention of the printing machine, no economic right for authorship was ever
granted specifically by any body of law. Authors were only granted the moral
right for having created books.

After copyright, the concept that intellectual products could be
proprietarized expanded into patent, which occurred during the industrial
revolution. Since then, the concept of property has extended into
intellectual products that consequently entail legal protection as normally
granted to tangible property. By looking at the history of copyright and
patent, it is conclusive that Intellectual Property is a concept developed in
the West. It is thus not a sui generis Islamic legal concept.

Whether or not an idea expression can be proprietarized under Islamic law is
still not certain. What the MUI has done through its fatwa is to make an
analogy with the protection of tangible property available in Islam and
further extending and applying it to intangible property.

In relation to whether IP protection serves our society's best interests, the
answer is quite clear. IP protection, whether copyright or patent, has
sparked much abuse. The emerging trend today is aimed towards limiting IP
protection, as removing it entirely would not be possible for the time being.
International moves through the draft Access to Knowledge Treaty purport to
reduce and limit the length of IP protection.

"Copyleft" licenses are meant to get around ordinary copyright licenses in
disseminating intellectual products. It would be in the interests of Islamic
society to limit the concept of Intellectual Property, if not completely
abolish it in the future. The World Intellectual Property Organization (WIPO)
is currently putting together a "development agenda" that will shift its
emphasis from "protection" to "knowledge access". Extensive IP protection is
only in the interests of big corporations and advanced nations.

The language that the MUI used in its edict is also ambiguous as it determines
the haram nature of a conduct if it "violates" a regulation. A violation of
IP rights is determined by a verdict of a tribunal.

The MUI is silent in relation to which law and which tribunal can judge
violation to be haram. IP protection in each country is different. Does the
MUI refer to international law, Arabic law or Indonesian law?

If the MUI refers to Indonesian positive law, there are plenty of things under
our law that are harmful to the transfer and promotion of knowledge. The
copyright law for example, requires that relinquishment of rights needs to be
conducted in a traditional written form. Moreover, the existing copyright law
does not support transfer of knowledge. DVD/CD replication in libraries for
archival purposes could be deemed as an infringement of copyright. The law
also does not specifically allow teachers to copy their class materials for
students.

The MUI should not link the concept of haram with violations of positive law.
Aligning religious law with positive law will have severe consequences.
Positive law is very dynamic, it may change from time to time. If the concept
of haram is attached to positive law, then the state of haram may also change
from time to time.

To summarize, the MUI's fatwa that supports IP could be misleading and is
counter productive for the following reasons.

First, "Intellectual Property" is a not a sui generis Islamic legal concept.

Second, Islamic values favor the promotion, transfer and dissemination of
knowledge, as compared to treating it as property.

Third, it is not in the best interests of Islamic society to extensively
support IP protection. And fourth, aligning religious law with positive law
will reduce the transcendentality of religious values, making it vulnerable
to political abuse.

The MUI's fatwas are not binding, both in terms of religious or positive law.
However, they have great psychological influence as the majority of
Indonesian Sunni Muslims will tend to adhere to it.

Muslim society is currently being left out in terms of knowledge and
scientific development. What Islamic legal scholars must do in responding to
this situation is to revolutionize Islamic law so as to enlighten and
liberate Muslim society from its dark ages, by limiting and reducing
protection granted under the concept of Intellectual Property.

If the MUI does not wish to revolutionize Islamic law, then it should at least
refrain from addressing the Intellectual Property issue. Importing a
capitalistic legal concept and stamping God's word on it will not bring any
benefits to society. Wallahu'alam.

The writer (movanet@yahoo.com) is a lawyer and a lecturer.