||Copyright in Islamic Shariah
Shaykh (Mufti) Taqi Usmani (Pro
Q.) Can you please explain the
Islamic injunctions about "copyright", especially about the copyright on
computer software? The questions are:
(i) Can we register a book under
the Copyright Act which bars the people from publishing that book without
permission of the copyright holder?
(ii) If something is registered under the law of copyright, should we abide by
the restrictions imposed by that law?
(iii) Can a copyright holder sell his right of publishing to another person for
a monetary gain?
A.) The question of "copyright" is related to a wider concept, generally known
as the concept of "intellectual property". In previous days the concept of
ownership was confined to those tangible commodities only which can be perceived
through our five senses. But the speedy progress in the means of communication
gave birth to the new concept of "intellectual property" which extended the
concept of ownership to some intangible objects also. The theory of
"intellectual property" contemplates that whoever applies his mental labor to
invent something is the owner of the fruits of his labor.
If a person has invented a certain instrument, he does not own the instrument
only, but he also owns the formula he has used for the first time to invent it.
Therefore, nobody can use that formula without his permission. Similarly, if a
person has written a book, he is the exclusive owner of the right to publish it,
and nobody has any right to publish that book without his permission. This right
of an author or an inventor is termed as his "intellectual property". It is also
implied in this theory that the owner of such rights can sell them to others
like any other tangible objects. The law of "copyright" has come into existence
in order to secure such rights and to give legal protection to this kind of
It is obvious that the concept of intellectual property on which the law of
copyright is based is a new phenomenon created by the rapid progress of industry
and the means of communication, therefore, this concept is not expressly
mentioned in the Holy Qur'an or in the Sunnah of the Holy Prophet, Sall-Allahu
alayhi wa sallam.
The acceptability or otherwise of such new concept which are not clearly
mentioned in the original resources of Islamic jurisprudence can only be
inferred from the general principles laid down by the Shariah. As the views of
the jurists may differ while applying these principles to the new situations,
there is always a wide scope of difference of opinion in such cases. The
question of "intellectual property" has also been a subject of discussion among
the contemporary Muslim scholars of Shariah whose opinions are different about
its acceptability in Shariah.
A group of contemporary scholars does not approve the concept of "intellectual
property". According to them the concept of ownership in Shariah is confined to
the tangible objects only. They contend that there is no precedent in the Holy
Qur'an, in Sunnah or in the juristic views of the Muslim jurists where an
intangible object has been subjected to private ownership or to sale and
purchase. They further argue that "knowledge" in Islam is not the property of an
individual, nor can he prevent others from acquiring knowledge, whereas the
concept of "intellectual property" leads to monopoly of some individuals over
knowledge, which can never be accepted by Islam.
On the other hand, some contemporary scholars take the concept of "intellectual
property" as acceptable in Shariah. They say that there is no express provision
in the Holy Qur'an or in the Sunnah which restricts the ownership to the
tangible objects only.
There are several intangible rights accepted and maintained by the Shariah, and
there are several instances where such intangible rights have been transferred
to others for some monetary considerations.
They contend that the concept of "intellectual property" does in no way restrict
the scope of knowledge, because the law of "copyright" does not prevent a person
from reading a book or from availing of a new invention for his individual
benefit. On the contrary, the law of "copyright" prevents a person from the wide
commercial use of an object on the ground that the person who has invented it by
his mental labor is more entitled to its commercial benefits, and any other
person should not be allowed to reap the monetary fruits of the former's labor
without his permission. The author of a book who has worked day and night to
write a book is obviously the best person who deserves its publication for
commercial purposes. If every other person is allowed to publish the book
without the author's permission, it will certainly violate the rights of the
author, and the law of copyright protects him from such violation of his rights.
Both of these views have their own arguments. I have analyzed the arguments of
both sides in my Arabic treatise "Bai-ul-Huqooq" and have preferred the second
view over the first, meaning thereby that a book can be registered under the
Copyright Act, and the right of its publication can also be transferred to some
other person for a monetary consideration.
This is an answer to your question no. (i) and no. (iii). Coming to the question
no. (ii), I would like to add that if the law of copyright in a country prevents
its citizens from publishing a book without the permission of a copyright
holder, all the citizens must abide by this legal restriction. The reasons are
Firstly, it violates the right of the copyright holder which is, affirmed by the
Shariah principles also according to the preferable view, as mentioned earlier.
Secondly, I have mentioned that the views of the contemporary scholars are
different on the concept of "intellectual property" and none of them is in clear
contravention of the injunctions of Islam as laid down in the Holy Qur'an and
Sunnah. In such situations, an Islamic state can prefer one view on the other,
and if it does so by a specific legislation, its decision is binding even on
those scholars who have opposite view. It is an accepted position in the Islamic
jurisprudence that the legislation of an Islamic state resolves the juristic
dispute in a manner not expressly mentioned in the Holy Qur'an or in the Sunnah.
Therefore, if an Islamic state promulgates a law in favor of the concept of
"intellectual property" without violating any provision of the Holy Qur'an and
Sunnah, the same will be binding on all its citizens. Those who have an opposite
view can express their standpoint as an academic discussion, but they cannot
violate the law in their practice.
Thirdly, even if the government is not a pure Islamic government, every citizen
enters into an express or a tacit agreement with it to the effect that he will
abide by its laws in so far as they do not compel him to anything which is not
permissible in Shariah. Therefore, if the law requires a citizen to refrain from
an act which was otherwise permissible (not mandatory) in Shariah he must
refrain from it.
Even those scholars who do not accept the concept of "intellectual property" do
not hold that is mandatory requirement of Shariah to violate the rights
recognized by this concept. Their view is that it is permissible for a person to
publish a book without its author's permission. Therefore, if the law prevents
them from this "permissible" act, they should refrain from it as their agreement
of citizenship requires them to do so.
Therefore, it is necessary for every citizen to abide by the law of copyright
unless it compels a person to do an impermissible act, or to refrain him from a
mandatory act under the Shariah.
Source: Taken (with Thanks) from Albalagh.net
Shaykhul-Hadeeth Maulana Zakariyya Kandhalwi
(RA) (Against Copyright)
Shaykhul-Hadeeth Maulana Zakariyya
Kandhalwi (RA) answered many objections on his Fadhail compilations (i.e.
Fadhail-e-Aamaal) in writing during his lifetime and these letters were
published by his grand-son (Muhammad Shahid Saharunpuri) entitled, “Kutub-e-Fadhail
Par Ashkalat Aur Unkay Jawabaat”.
Specifically on the subject of
copy rights and registered trademarks it is written in the chapter
entitled, "Kutub-e-Fadhail Ki Taba’at Ki Aam Ijazat Aur Nashireen
Kayliye Khusoosi Hidayat (General permission for the printing of
Fadhail books and important instructions for Publishers)":
… Shaykhul-Hadeeth Maulana
Zakariyya Kandhalwi (RA) had the following announcement printed in the
newspapers on his behalf,
“The publications which this
worthless slave (of Allah) has authored i.e. Hikayat-e-Sahaba, Fadhail-e-Namaaz
etc or any other publications which have been written by this worthless
whether they be in Urdu or Arabic their copy rights have not been
reserved for anyone and no one has the right to have them registered.
This servant permits everyone (i.e. whoever intends) to get them
published as long as no changes are made, however it is requested that
every conceivable effort should be made in detection of errors and
Zakariyya Kandhalwi (RA)
28th of Rajab 1365 (AH)
Furthermore, in explanation to
the published announcement it is written that not only Shaykhul-Hadeeth
Maulana Zakariyya Kandhalwi (RA) didn’t reserve copy rights there is
absolutely no question of registered trademarks as Shaykh (RA) always
believed that the later isn’t permissible in Shariah (although other
senior Ulama have given a Fatwa for its permissibility due to certain
reasons) and this is also the opinion of Shaykh (Mufti) Rasheed Ahmed
Gangohi (RA) as given below.
Shaykhul (Mufti) Rasheed Ahmed Gangohi(RA) (Against Copyright)
Q) Is it permissible to sell or prohibit or
gift “Right to Author” or not?
A) “Right to Author” isn’t a
commodity which can be sold or gifted, therefore it is Baatil.
لا یجوز الاعتیاض عن الحقوق المجردۃ الاشیاہ (اشباہ)
واللہ تعالی اعلم