The Concept of Intellectual Property in the Middle East (Saudi Arabia) and the Sharia Law
At present, a key factor in the development of the economy is intellectual resources - knowledge and information. The competitiveness of the country in the world markets of science-intensive and high-tech products largely depends on the effective use of intellectual property. As it is shown by the progressive experience of various countries, namely, this increases the productivity of economic activity, ensuring the dynamic development of the economy. In recent decades, the governments of many countries of the world have been paying close attention to the effective implementation of intellectual property, constantly improving its legislative regulation. In the context of continuous technological progress, leading companies in developed countries are constantly restructuring their assets, including intangible, to strengthen control in the markets of high technology products.
The modern global market of intellectual property, formed with the active participation of the World Intellectual Property Organization (WIPO) and the WTO, creates uniform conditions for the circulation of IP rights (unified concepts of objects of protection and types of transactions), mainly, with the aim to organize international financial flows. However, there are regional and country specifics not only in legislative protection of intellectual property rights, but also in the interpretations of the very concept of intellectual property. At the same time, the level of protection of intellectual property is one of the important indicators of the development of the state, both regarding economics and the rule of law. On the one hand, it reflects the effectiveness of state mechanisms to protect the rights and interests of citizens; on the other hand, it shows the prospects for developing a business in the country (Oguamanam, 2013). In this regard, it is of great interest to consider the issue of the concept of intellectual property in the Islamic economy, which, as it is well known, has obvious differences from the ubiquitous liberal model of capitalism.
In general, private property is the basis of society and the economy. At the same time, it is one of the inalienable, fundamental human rights, which appeared before the Common Era. In the lexical meaning, the property refers to all that the person owns - that is, any things that are in his property. However, among the scholars of Islam, there is no unanimous opinion regarding the concept of "property"; it was given various definitions. We will mention here the definition given in the Majalla (the largest codification of the norms of Islamic law), which was adopted by many Muslim countries (Lone, 2016).
As a religious term, property is something to which human nature tends, what a person has the right to dispose of and what other people do not have the right to dispose of. According to this definition, copyright and intellectual property are also applied to property (unless, of course, this does not belong to religious matters).
The first condition for owning something is that the object of possession should be property. However, the mere presence of property is not enough for it, the property, to be considered legal (halal). The scientists have mentioned five different ways of acquiring property. In the unanimous opinion of alims, property acquired by any other means besides these five will be considered forbidden (haram). Legal ways of acquiring property include the following (Carroll, 2001; Khan & Ahmad, 2015):
1. Acquisition of property through an act: the exchange between two parties of things that have material value, or the donation of any thing in the property (for example, buying wheat for money; exchanging an old thing for a new thing; transferring any thing without charge to another person).
The acquisition of property through the act means the transfer of property owned by one person to the ownership of another person through an act of sale, lease, donation, conciliation, transfer of the debt obligations to another person, and other acts.
As for the possibility or impossibility of the emergence of new types of acts of commodity-money exchange, which did not exist in the days of the Prophet Mohammed, the alims expressed different opinions on this matter. The following is generally accepted: for the emergence of any new type of act, there is no need for a dalil (proof). However, it is considered prohibited to introduce new types of acts if they are not needed or if they do not become widespread in society. Moreover, a new type of act, the need in which arose or which became widespread, should not contain elements prohibited by religion. Otherwise, it will also be considered prohibited (Khan & Ahmad, 2015).
2. Acquisition of property that is mubah, i.e., the use of abandoned and not owned by anyone forest areas, land, trees, and so on, that is, that naturally does not belong to anyone (for example, collecting wood in a gully owned by no one). The main feature of this type of property is the absence of the owner and proprietor.
The main principle in the use of such property is not to harm society. If such a danger arises, the state may impose a prohibition on the use of this type of property. After the imposition of a prohibition by the state, the use of this property for personal purposes becomes prohibited.
3. Inheritance. The property that belonged to a person during his life and remained after his death is called inheritance. If a person had debts during his life, then the share of the property left by him in the inheritance, equivalent to the amount of his debt, is not considered as an inheritance; also, the share of property which was devised also is not a inheritance. This share of the property must be given to those who have the right to receive it. Similarly, the cost of shroud and burial does not belong to inheritance. According to the generally accepted opinion, the property remaining after the death of the deceased, about which third parties did not claim, is considered the property of the heirs of the deceased. The main difference of inheritance from other ways of acquiring property is that the heir becomes the owner of this property not by choice but necessity. That is, in this case, the transfer of ownership to the heirs is not their preference or choice; the heir has no right to refuse the inheritance of this property.
However, the post-industrial realities of the modern globalizing society have forced scholars - philosophers, sociologists, economists, anthropologists, political scientists, and historians - to largely revise classical views on property, including the nature of intellectual property. The transformation of knowledge and information into a leading economic resource, the consistent intellectualization of labor and capital, the leading role of information (including computer) technologies - all of these processes combined radically changed the views of scientists and philosophers on the essence of the institution of property itself. Knowledge as an object of property, in contrast to a substance, a matter, is easily copied, reproducible many times, and practically does not bear on itself the "tags" or "label" of the owner himself (Oguamanam, 2013). The usual, traditional framework of property rights - rooted in Roman epoch and Roman law - is too narrow for it. There is a need to revise, rethink the institutional characteristics of property relations, taking into account all the trends of the modern post-industrial era.
Like the rules on the use of material things, Islam has rules on intellectual property. Obviously, the concept of "intellectual property," on which the copyright law is based, is a new phenomenon created in the conditions of the rapid development of industry and means of communication. Therefore, this concept is not explicitly mentioned in the Quran and Sunnah. The new term "intellectual property" includes two types of private property (Malkawi, 2013):
1 - Perceptible and tangible property - in other words, industrial property, like a trademark and a book.
2 - Perceptible, but intangible property - in other words, objects of copyright, like a scientific theory or invention in the form of an idea, 'stored' in the mind of a scientist.
If a property is of the kind of the first type of property, as a permitted trademark, then the individual is allowed to own and use it through exploitation or sale, but the state is obliged to protect this human right, as well as to ensure that he can dispose of it and forbid others to encroach on it, since the trademark is the material value in Islam on the grounds that it is part of the permitted trade in Sharia. A trademark is an invented mark set by the seller or manufacturer on its products to distinguish it from the products of others, which helps customers or consumers to recognize them. This definition does not include trademarks that have not yet been used, as some (non-Islamic) laws indicate. A person can sell his trademark. If he sells it to another person, then its benefits and the right to dispose of it are transferred to the new owner (Muhammad, Shettima, & Hassan, 2016).
However, if intellectual property is of the second type, as a scientific theory or idea of an invention that the owner has not yet stated in writing or did not write on digital medium, then it is the private property of its owner. He is allowed to sell it or educate others by it if it represents any value in Islam. If he has done this, then it is allowed to the person who received this idea for a Sharia reason, to dispose of it with plenary powers without any restrictions from the first owner according to Sharia law. This provision is also applied to anyone who has bought a book, disc, or other data medium that contains an intellectual subject, regardless of whether it is scientific or literary. Just as he has the right to read and use the information existing in it, he also has the right to exercise its full authority through copying, selling, or transferring by gift. However, he is not allowed to ascribe scientific material (invention) to another author, since imputation is a lie and falsification, which is forbidden according to Sharia (Laluddin et al., 2012).
Thus, in Islam, the right to respect intellectual property is a moral right that is realized by prohibiting the imputation of an idea to another author, and not by prohibiting others from using it without the permission of the author. This moral right pursues moral value.
The creator of the information product has the right to say "this is my work, my property." He has the right to receive legitimate benefits both for himself and for his heirs. Proof of this is the hadith, in which the prophet Muhammad once said that who made (invented) first, before other Muslims, then it is his (hadith from ibn Dawud, hadith weak) (Lone, 2016). This hadith is a proof that if a person has translated something, wrote, created, then he has the right to say that it is his (he is the author). This is also applied to those works where authors use analysis and synthesis (collecting information and independently formulating the conclusions of the analysis).
Now, many authors have turned to this issue to find out if there is a fatwa on intellectual property rights. In 1984, the Islamic Congress of Fiqh took place in Kuwait, at which the issue of intellectual property rights was considered. The scientists referred to the above-mentioned hadith (despite the fact that it was weak) and decided the following (Birnhack & Khoury, 2016):
1. Trademark, brand, right to invention, and copyright are private rights owned by the author (publishing house, company). In modern society, they also have economic benefits. All this should be protected by Sharia and should not be violated by others.
2. A person owning the items specified in clause 1 may be entitled to dispose of intellectual rights and receive financial benefits for them, which entitles the author to receive monetary remuneration for the transfer and use of intellectual rights by third parties.
3. According to Sharia, it is prohibited to violate the rights of the author, publisher, inventor, as well as innovation. Only their owner has the right to dispose of them.
If we take into account the above sense of fatwa, it becomes clear that copying or the use of the results of someone else's intellectual work without permission, from the point of view of Islam is unacceptable.
- Quote paper
- Nadiia Kudriashova (Author), 2018, The Concept of Intellectual Property in the Middle East (Saudi Arabia) and the Sharia Law, Munich, GRIN Verlag, https://www.grin.com/document/500561