THE FATWA OF HADHRAT MUFTI SAYYID LAAJPURI

It is indeed surprising that a senior Mufti of the calibre of Hadhrat Mufti Sayyid Laajpuri (rahmatullah alayh) had failed to discern the incorrectness of buying and selling the imaginary copyright which is the product of the kuffaar system. The following interesting question and his surprising fatwa appear in Fataawa Rahimiyyah, Vo. 3, page 242:

QUESTION: What do the Ulama of the Deen say about the following ma’alah: Zaid is a very great Aalim of the Deen He authored an elementary Deeni kitaab in which children are taught by way of question and answer the basic, necessary masaail pertaining to aqaaid (beliefs) and a’maal (deeds). This kitaab gained such popularity that numerous Madrassahs included it in their syllabus. Many people among the Ulama and traders printed the book and widely distributed it. Zaid never objected to this (publication and distribution of his kitaab by others). Sometime after Zaid’s demise, Umar printed this kitaab with the intention of disseminating the Deen and also for trade purposes. The heirs of Zaid now claim that the publication by Umar has affected their trade. Since the kitaab was printed without the permission of Zaid’s heirs, they are demanding compensation of many thousands of rupees. They have threatened to institute legal proceedings if Umar fails to pay the compensation they are demanding. The questions in this regard are:



(1) Would it have been permissible for Zaid (the author) to have registered a copyright on his kitaab which deals with basic, necessary Deeni masaail thereby preventing others from printing and distributing it?



(2) Is it permissible for the heirs of Zaid o resort to this action after his death? Can they prevent us from printing the kitaab? (3) Was it permissible for Zaid or is it permissible for his heirs to sell all rights of printing to a publisher or trader? Is such a sale permissible according to the Shariah?

ANSWER: I speak with the taufeeq of Allah. This is a mas’alah pertaining to ijtihaad and qiyaas. In the first era (of Islam) the printing press did not exist nor did there exist the concept of monetary gain with printing. Hence, no explicit ruling on this issue has been narrated. Nevertheless, even if the right of printing is accepted to be an entity without monetary value and mubaahul asl, then too, it is not permissible for all and sundry to print without the permission of the author his book to which is related his monetary and business interests. Some acts are mubaahul asl (i.e. initially permissible). However, if adoption of these acts lead to violation of another’s right or the possibility of harm (monetary loss), then the permissibility is negated. It then becomes a Shar’i prohibition, e.g. It is permissible for every Muslim man to submit a proposal to a woman of the same social class. But, it is prohibited to send a proposal on another proposal (which is still under consideration). Until such time that the woman has not rejected the first proposal the permissible act of submitting a proposal is not permissible for another Muslim.



While a man is busy negotiating a price, it is not permissible for a third person to make an offer. Every person has the right to climb on top of his roof to enjoy the fresh air. However, if the purdah of the inmates of the adjoining houses is violated, then this permissible act no longer remains permissible. It is mubah (permissible) for any musalli to sit anywhere in the Musjid. No place is exclusive for any particular person. However, if someone arrives and occupies a place, and he leaves his cloth, etc. in that place, if he temporarily leaves it (to indicate that he will be returning), then it is prohibited for others to sit in his place.



Allamah Shaami (rahmatullah alayh) has explained in detail that when a person’s right is related to a mubah act, then that act does not remain permissible for others. The first right of printing a book belongs to the author who had applied his strenuous efforts night and day to prepare the book. Along with disseminating Ilm, the aim is also monetary gain for the author. Hence, as long as the right of the author is connected to the book, the right of others will not apply to it. Book sellers who print the book without the permission of the author, inspite of a considerable quantity having been already printed on behalf of the author, do so for the sake of monetary profit on the basis of the popularity the book has acquired. Their excuse of desiring the dissemination of knowledge is unacceptable. If they truly had in their hearts esteem for Ilm, they would have purchased the book in large quantities from the author and distribute it free to the poor. Thereby gaining thawaab.



Now remains the question of whether it is permissible or not for the author to accept monetary compensation for the right of printing? Among the Huqooq-e-Mujarradah are such huqooq in which there is no monetary benefit or they cannot be made a medium for the acquisition of wealth. These rights were awarded only for warding off harm (dafa’ dharar), e.g. haqq-e-shufa’ (the preamptive right of buying a property) has been granted for the sake of safety from an evil neighbour. Undoubtedly, it is not permissible to accept monetary compensation for such rights.



However, there are some such rights to which is related the monetary gain of the person concerned, either in the present or the future, e.g. haqq-e-wazaaif (the right of occupying a governmental position). It is permissible to accept monetary compensation in lieu of abdicating this right. Hadhrat Hasan (radhiyallahu anhu) had compromised his right to the khilaafat and had abdicated in favour of Hadhrat Muaawiyah (radhiyallahu anhu). He had accepted monetary compensation in lieu of giving up his right to the khilaafat. ……..



Similarly is the right of printing a book when it is related to the monetary benefit of the author, whether presently or in the future. This right is established for him from the very inception. Hence it is permissible for him to accept monetary compensation (i.e. sell his right) and transfer it to another person (who pays him for this right). In the present age, in view of the abundance of means of dissemination, printing and publication, and the ways of patronage for authors, as well as the lack of sufficient capital (for an author), it is not an act of ilmi bukhl (to be miserly with knowledge) to have copyrights reserved for the author. In fact, this is in the interests of the preservation and progress of good literature. In this case (stated in the question) the loss is a loss of a benefit and that too is not fixed and is unknown, hence it does not occasion liability.” (Translated from the Urdu.)

Apart from the Fiqhi (Juridical) Ruling and the technicalities of the Shariah’s law pertaining to this question, Hadhrat Mufti Abdur Raheem Laajpuri Saheb (rahmatullah alayh) has inexplicably overlooked some vital issues stated in the question. These are:



• The author of the book, who was a great Aalim and a man of Taqwa had written the book for the Deeni benefit of the Ummah.

• He had not reserved any copyright for himself nor did he sell any such rights to anyone.

• During his lifetime many people, Deeni personnel (such as organisations and Ulama, as well as traders) had printed, published and disseminated the book.

• The Honourable Aalim never prevented anyone from printing and distributing the book, whether free or by selling.

• The book was introduced into the syllabus of many Madaaris. Most probably tens of thousands of Muslim children derived substantial Deeni benefit from this book. In addition, innumerable Muslims benefited from the book.

Indeed, we can safely say that this great Aalim had built up a great and wonderful capital for his Aakhirah. Now even if it has to be assumed that copyright is a valid Shar’i right

(but which it is not), then it is confirmed beyond every shadow of doubt that during his very lifetime, the Aalim had allowed all and sundry to assist him in piling up his capital for the Aakhirah. He had allowed everyone to print and publish his book. By the wholesale permission he had given all and sundry to print and distribute the book, he had effectively transferred his right (on the assumption that it is indeed a right) to others.



Taking advantage of this transferred right, which is Mubaahul Asl for all those who desire to print and sell the book because the author had allowed them to do so, Umar had printed and distributed the book in fulfilment of the conspicuous desire of the author. After Umar had made use of his Mubaahul Asl right, the Aalim’s heirs, having no feeling for the deceased, unconcerned with the aspect of Thawaab-e-Jaariyyah for the marhoom author, and concerned with only fulfilment of the dictates of their pecuniary craving, threaten to institute legal proceedings in a kaafir court against Umar who in actual fact is a benefactor of the deceased Aalim.



Every Muslim understands or should understand that according to the Hadith, the dead man’s deeds come to an end, except for acts of perpetual reward (Thawaab-e-Jaariyyah) which he had left behind in this dunya.). In pursuance of this lofty and beneficial goal of the Aakhirah, the Aalim Saheb who most certainly was adorned with Noor- e-Fahm, had written the simple Deeni book for the Ummah at large, not for the pecuniary gratification of his selfish, heartless heirs who are so miserably unconcerned with the Aalim’s benefits of the Aakhirah. They are concerned with only self-gratification by satisfying their own pecuniary lust to the detriment of the one in Aalam-e-Barzakh whose wonderful avenue of Thawaab they have effectively blocked by means of their hirs (greed).



True benefit is the benefit of the Aakhirah, not the material crumbs which people lick up despicably from their pecuniary plates regardless of whether such crumbs come their way in halaal or haraam ways. Instead of being the sympathisers of their deceased relative (the Aalim), they have turned into his enemies by plundering and pillaging his wealth of the Aakhirah which Umar was engaged in dispatching ahead regardless of his intention.



It staggers our imagination to observe that Hadhrat Mufti Abdur Rahim Saheb, has overlooked all these salient facts and truths. Instead of offering naseehat to the gluttonous heirs intoxicated by their lust for money, he summarily in haste without pausing goes to the defence of those who are depriving the author who had transferred his right or simply allowed all and sundry to disseminate his book which he had intended for the Ummah and for his success and salvation in the Aakhirah.



Hadhrat Mufti Abdur Rahim Laajpuri Saheb, undoubtedly was a great Aalim. But the errors of the Ulama are not daleel in the Shariah. Their errors should be overlooked, not cited as proof. Let us now revert to the Fiqhi discussion and address some of the other comments which are unrelated to the Fiqhi dimension of this issue.



(1) Hadhrat Mufti Saheb says that on the assumption that the right of printing is Mubaahul Asl, i.e. permissible for all and sundry to print a book authored by a person, then too it is not permissible for anyone to print it without the author’s consent in view of the fact that the monetary benefit or trade benefit of the author is related to the book. When such benefits are related to the book, then inspite of the Mubaahul Asl rule, no one is allowed to print it without the consent of the author.

The rationale for this is that inspite of something being Mubaahul Asl, the permissibility is negated if it leads to violation of another person’s right and the possibility of dharar (loss/harm).The Mubaahul Asl act then becomes prohibited for others.



In response to this, we say: In his answer, Hadhrat Mufti Saheb has acknowledged that rights which exist for the purpose of dafa’ dharar cannot be bought or sold nor may monetary compensation be taken for it. Yet, he avers that the author may sell this right. The conflict is conspicuous. Since this imaginary copyright has been assigned to the dafa’dharar category of Huqooq by the votaries of copyright themselves, as well as by Hadhrat Laajpuri (rahmatullah alayh), and since they do concede the ruling of prohibition applicable to rights in this category of Huqooq, it is illogic for them to arbitrarily insist that copyright may be traded in and money accepted in lieu. There is, therefore, no substance in this argument of Hadhrat Mufti Laajpuri (rahmatullah alayh).

(2) The relationship of monetary benefit for the author is restricted to the manuscript which he has prepared. The author’s monetary benefit is not related to the book which is owned by someone else who had lawfully acquired it for the simple reason that this other book is not the author’s property. It is the property of the one who has lawfully acquired it. Since tasarruf (operation and use) in one’s own property is permissible, the owner of the book is not violating any of the rights of the author who is free to act in his own property as he deems appropriate. On the contrary, the copyright which the author reserves for himself is an interference in the rights of the owner of the book. The author by virtue of this right is preventing the owner of the book from executing what is lawful for him – what is Mubaahul Asl for him

Instead of the other person violating the right of the author, the opposite is true. There is absolutely no Shar’i basis for the claim that the monetary benefit of the author is related to the book which happens to be the property of another person. His monetary agenda is related to his own manuscript or book which is his property. He has to utilize his Mubaahul Asl right in relation to his own manuscript. He has no Shar’i basis for the extension of his right of monetary benefit to the property of others.

Similarly, there is no Shar’i basis for claiming that the Mubaahul Asl right of others to act in their own property is cancelled simply because the author was the first person who had written the book. This claim is simply an opinion minus a Shar’i basis.



Hadhrat Mufti Laajpuri (rahmatullah alayh), like others, have sought to justify this opinion with examples such as a place in the Musjid occupied by a person. The occupation of one person cancels the Mubaahul Asl right of another person to occupy the same spot. The analogy is baseless because in the Maqees Alayh (Basis of Deduction) the right pertains to only ONE specific spot which has been occupied. This one specific spot which is occupied may not be usurped by another person while the first occupier is still occupying it.

But in the case of printing a book, the printer who is not the author, is utilizing his own property—that what is in his possession. Hence, he is like the person who is already in occupation of a specific spot in the Musjid while the author who seeks to restrain him from printing the book is in the category of the second person who enters the Musjid after the first person has staked his occupation of the specific spot. This is ample for dispelling the haze which has been spread around Mubaahul Asl with the aspect of relationship of monetary benefit. The monetary benefit relationship applies to only the book/manuscript which is in the ownership of the author. The other publishers are not in any way whatsoever interfering with the author’s right to print and distribute his book.

(3) Hadhrat Mufti Laajpuri (rahmatullah alayh) avers that the author who has expended so much effort, has the first right to print his book.

This is conceded. It never was contended by opponents of copyright, that the author enjoys no such right. The only thing which the Ulama who are against copyright, are saying is that the author has no right of preventing them from taking advantage of their Mubaahul Asl right to print the book from their own property—from the book which they had lawfully acquired.



The author is the only one who has possession of the work he has written. No one prevents him from proceeding with printing his book. He is free to enter into any commercial arrangement or agreement with anyone to print and sell his book. If he is by the means, he may print it himself. Others will acquire copies of the book only after the author has arranged to have it printed. Thus, he always remains the first person to print his book. The averment of Hadhrat Mufti Saheb is therefore devoid of substance because the author is always the first one to print it. The other printers follow subsequently, after having acquired a copy of the already printed book.

(4) Castigating the publishers, Hadhrat Mufti Laajpuri (rahmatullah alayh) says in his fatwa that the motive of these publishers who print without the consent of the author, inspite of the author having substantial stocks of the book, is only monetary gain Their ‘excuse’ of the desire to disseminate Ilm is unacceptable because if they were genuine, they would have purchased the books directly from the author and distribute free to the poor.



This criticism is unrelated to the Fiqhi issue. It has totally no relationship with the permissibility or impermissibility of copyright and the right of others to publish the book. Hadhrat Mufti Saheb made an inexplicable criticism of the publisher while refraining from even offering naseehat to the heirs motivated by pecuniary craving. They threatened to commit the haraam act of instituting legal action in the kuffaar court against Umar (the publisher) who had acted in fulfilment of the desire of the deceased author. Hadhrat Mufti Saheb has unjustifiably assailed the intention of the publisher in this case. His niyyat is known to only Allah Ta’ala. Anyhow, even if his intention in printing the book was only monetary gain, he did not violate the Shariah in embarking on the printing of the book for monetary gain. Just as all traders engage in halaal trade for a halaal earning, so too is it the publisher’s right to print the book and acquire halaal income. The criticism of Hadhrat Mufti Saheb is both unjust and incorrect, and perhaps totally unfounded because the state of a man’s heart is known to only Allah Ta’ala.



Furthermore, the Mubaahul Asl right which the deceased possessed, is not transferred to his heirs. With his demise, he has taken his right with him into his grave. The heirs have absolutely no right to claim anything from the publisher who was operating in his own mielk (property). He was not violating any of their rights. For some inexplicable reason the heirs escaped criticism by Hadhrat Mufti Laajpuri (rahmatullah alayh). Regarding purchasing the books from the author who has reserved all rights of printing and publication, there is a valid reason to deter prospective bulk buyers from buying from the author or a publisher who has sole rights over the book. Since the author or his agent is the sole publisher, the price is fixed very high. He holds the monopoly. The excessively high price which sole publishers charge deters many bulk- buyers.



Since Hadhrat Mufti Saheb appears to have lacked expertise and experience in this field, he unhesitatingly criticized the publisher and misunderstood the reason for not purchasing from the author or his agent. We are well-experienced in the field of publishing and distributing books. Over the past few decades we have by Allah’s fadhl and karam distributed free of charge millions of rands of Deeni books. Fortunately we do our own writing, printing, publishing and distributing. If we had been reliant on other authors who have reserved their copyrights, it would have cost ten times more than what has already been invested in the books. Ten times less people would have received the book.



In our experience over the past few decades we have learnt that there are many Muslims who contribute large sums of money for printing and for free distribution of Deeni books with the niyyat of Thawaab for themselves and their deceased. There are also many Muslim organisations who distribute books free. Why should we pay R20 for a book when we can print it ourselves for R5? Why pay the author or his agent R50 for a book when we are able to print the same book for R10 and distribute it free to the Ummah? Tens of thousands of Muslims who would not have received the book if it had to be purchased at the high prices fixed by the monopolising authors and their sole agents, obtain the book when the organisation of the Deeni-conscious man prints the books for the Pleasure of Allah Ta’ala.



The blanket attack against the niyyat of everyone who prints Deeni books without the consent of the author is totally unjustified. It is a futile attempt to acquire the books at a very low price from those who have a monopoly. We print and distribute books, the bulk free, throughout the world. We are, therefore, in a better position to comment on this issue. While the motivation of the Muslim organisations and numerous Muslim individuals in their desire to print books and distribute as widely as possible, is Deeni and altruistic, the authors and sole publishers are generally driven along by pecuniary greed, hence their vehement objection against anyone printing the book. The stated reason for their annoyance and their desire to resort to kuffaar courts to acquire haraam ‘relief’ in the form of monetary gain usurped from Muslims with the aid of the legal system, is decrease in their sales and profits as a consequence of the competition by other publishers. But the Shariah rejects the basis of their annoyance and does not accept decrease in sales and profit a valid reason for preventing others from taking advantage of their Mubaahul Asl right.

(5) In justification of buying and selling copyright, Hadhrat Mufti Laajpuri (rahmatullah alayh) presented in his fatwa the example of a governmental post. The officer in this post can accept monetary compensation in lieu of stepping down or abdicating in favour of another person. In substantiation of this permissibility, he cited the act of Hadhrat Hasan (radhiyallahu anhu) who had abandoned his claim to the Khilaafat in lieu of monetary payment to him by Hadhrat Muaawiyyah (radhiyallahu anhu) who had henceforth become the undisputed Khalifah of the Islamic Empire



The analogy is untenable. It is extremely far-fetched. What resemblance is there between a government officer stepping down from his post in lieu of monetary compensation, and trading with copyright as if it is material commodity? The Shar’i institution of Sulh (Compromise settlement) is well-known in the Shariah. In disputes, a compromise between the parties in lieu of money is valid in the Shariah. Such payment is not by virtue of a sale transaction.



When a compromise is effected regarding rights, the one of the right abandons his haqq. The Shariah does not assign this type of agreement into the category of sales. It is termed Sulh (Settlement by Compromise). This is an independent institution of the Shariah apart from sales—buying and selling. The proponents of copyright regard this imaginary right to be a valid, tradable asset in exactly the same way as a loaf of bread is tradable. Yet they attempt to justify it with examples drawn from the department of Sulh. There is a total lack of precedents in Kitaabul Buyoo’ (The Book of Sales) for a basis to justify and validate the imaginary right fabricated by the kuffaar legal and commercial systems.

In view of the absence of any basis for the sale of rights in the Shariah’s Department of Buyoo’, the votaries of copyright turn to the Department of Sulh. This is their fundamental error in the quest for a Shar’i basis to justify and validate the buying and selling of the imaginary copyright which is totally foreign to Islamic teaching, and it violently militates against the spirit of Islam which has come to secure man’s salvation in the Aakhirah. It is an obstacle in the Path of Da’wat and Tableegh.



The only examples which have been presented from Kitaabul Buyoo’ to justify copyright are haqqul muroor (the right of thoroughfare), haqq- e-shirb (the right of drinking water from a dam, etc.) and one or two other similar examples. But, these rights accompany the fixed property with which they go. They are not tradable entities independent of the fixed property. They are subservient to the property. On the contrary, the Fuqaha have categorically ruled that the sale of rights is prohibited. The plethora of interpretations, far-fetched and baseless, at times make the whole exercise of the votaries of copyright amusing and laughable. They have descended to ludicrous levels of interpretation in their desperation for producing a valid basis to justify the buying and selling of copyright, and for the injustice of preventing others from the utilization of their Mubaahul Asl right.



(6) The example of the compromise settlement between Hadhrat Hasan (radhiyallahu anhu) and Hadhrat Muaawiyyah (radhiyallahu anhu) in which the former abandoned his claim to the Khilaafat in favour of the latter, has also been tendered to justify buying and selling of the imaginary copyright. The analogy is truly ridiculous. What resemblance is there between copyright and the Institution of Khilaafate?



The two armies of Islam were marching on a course of head-on collision. A life and death struggle was in the making between the two Camps of Islam, threatening the very existence of the Islamic Empire. The Christian world was looking on with high hopes of reclaiming the lands it had lost to Islam. A grave conflict developed in the ranks of the Islamic Empire. There were two adversaries laying claim to the Khilaafate. The two armies of the adversaries were marching against each other to decide their respective fates on the battlefield. In this scenario, a compromise settlement was reached in which Hadhrat Hasan (radhiyallahu anhu) abandoned his claim to the Khilaafate. There were two claimants to the same right of Khilaafate. The impending battle between the two armies was averted by the Sulh (Compromise Settlement). Among the terms was that the revenue of an entire region would be handed to Hadhrat Hasan (radhiyallahu anhu). Obviously, this revenue was not claimed for his personal self. He had his charitable projects to attend to. Whatever the case was, this episode can never constitute a basis for the lousy copyright concept introduced by the kuffaar and accorded the status of wealth or saleable commodity. The example of accepting monetary benefit for stepping down from an official post is itself flawed and in conflict with qiyaas. It cannot constitute a basis for formulating a ruling for the imaginary copyright concept of the kuffaar. Earlier, in this book, there is a discussion on this issue. See page 35.



The votaries of copyright have assigned undue emphasis and preference for the exception of accepting monetary compensation for abdicating an official post. In fact, they are according this peculiar and irrational exception the status of a principle, and on the basis of this baseless ‘principle’ the actual Principle of the Shariah is being abrogated. Instead of viewing copyright in the light of the Shariah’s Principle of Trading in Rights, and seeking an answer on its basis, they argue its (copyright’s) permissibility on the basis of the irrational and untenable exception of abdication in lieu of monetary compensation.