Among the senior Ulama of this age is Hadhrat Mufti Taqi Uthmaani Saheb, the son of the illustrious Hadhrat Mufti Muhammad Shafi (rahmatullah alayh), who was also a very senior Khalifah of Hakimul Ummat Hadhrat Maulana Ashraf Ali Thaanvi (rahmatullah alayh). Hadhrat Mufti Taqi Saheb has propounded a view in favour of the legalizers of haraam copyright. In so doing he has come out in open refutation of the Fataawa of his illustrious father, Mufti Muhammad Shafi, and of all he senior Ulama of the recent generation preceding him.

In his summary of the copyright subject, Mufti Taqi Saheb, throwing in his lot with the liberals, comments:



“I have analysed the arguments of both sides in my Arabic treatise ‘Bay-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.”

The arguments which Mufti Taqi Saheb presents are similar to those of the Fiqh Academy Molwis. In this treatise, we have already answered these arguments which are also flimsy products of personal opinion lacking in entirety in any Qur’aanic or Hadith Nusoos. In fact, their arguments are all tailored and tuned by breaking down the Nusoos and the immutable principles of the Fuqaha-e-Mutaqaddimeen who have structured these principles on the sacred Nusoos.



We have not seen Hadhrat Mufti Taqi’s Bay-ul-Huqooq. When a copy becomes available we shall, Insha’Allah, subject it to scrutiny. If any ‘new’ arguments other than what the Fiqh Academy Molwis have presented, surface in his book, we shall respond thereto, Insha’Allah. Adding to his view, Hadhrat Mufti Taqi Saheb comments: “Coming to the question of restrictions imposed by the law, 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 the copyright holder, all the citizens must abide by this legal restriction. The reasons are manifold: 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.”



RESPONSE



The Shariah’s law pertaining to copyright and observance of the law of a country are two separate issues. Our discussion of copyright is in refutation of the opinion of the liberal Molwis. It has no bearing on observance or non-observance of the laws of the secular kaafir or faasiq Muslim state. In today’s age there are only two categories of government: Kaafir state and Faasiq state. There is no third classification.



Obeying the laws of such anti-Divine states of kufr and fisq is governed by different laws and principles of the Shariah, which are designed to save Muslims from the tyranny and oppression of the Dajjaals which rule these countries. Consider for example the oppressive haraam taxes which secular governments levy nowadays. They confiscate 75% or more of the earnings of people in the form of a host of direct taxes, a myriad of indirect hidden taxes and an avalanche of extortions described as levies of a variety of kinds.



Are these taxes permissible in Islam? Obviously, no Mufti who has an understanding of his profession can aver permissibility. The issue of taxation being haraam is one matter, while paying these taxes is entirely a different issue. When the Ulama advise Muslims to pay their taxes to avoid the imposition of greater tyranny and oppression of the secular authorities, such advice never means that these taxes are permissible in the Shariah. The advice and even the fatwa to pay the Islamically unlawful taxes are issued in the interests and safety of Muslims—to prevent them from going to jail, being humiliated and subjected to confiscation of their halaal assets. This fatwa to pay the taxes is thus dictated by circumstances, and it does not purport that taxes are halaal. Furthermore, if a Muslim refuses to abide by this advice and he escapes payment of taxes, he will not be committing a sin nor be held liable in Qiyaamah.



The arguments which we have presented in refutation of the baseless view of the liberal Molwis on copyright, present the law of the Shariah on this question. It has no relationship with observance or non-observance of the laws in secular states pertaining to the “restrictions imposed by the law”. If Hadhrat Mufti Taqi Saheb had desired to present his fatwa on this specific aspect, it was a simple issue which does not require first an exercise to prove the legality in the Shariah of copyright. Even on the basis of the impermissibility of copyright, he can still issue his fatwa of observance of the law. As mentioned earlier, that is an entirely separate question totally unrelated to permissibility or impermissibility of the deed.

In propounding his fatwa to observe the restrictions of the law on copyright, the first of the ‘manifold’ reasons tendered by Mufti Taqi Saheb is: “It violates the right of the copyright-holder which is affirmed by the Shariah principles also according to the preferable view.”



We have already shown in this treatise that publishing a book without the consent of the author in no way whatsoever violates any of his rights. We have shown that copyright is in fact not a right. It is a baatil concept which is tantamount to the usurpation of the rights of others and an idea crafted to fulfil the pecuniary cravings of heartless men who find the capitalist system to be conducive for expression and realisation of such despicable cravings.



The claim that this ‘right is affirmed by the Shariah principles’ has been averred without Shar’i substantiation. It is purely the product of opinion influenced by liberalism to satisfy western concepts. Far from this baatil ‘right’ being affirmed by Shariah principles, the latter are distorted and misinterpreted to produce a basis for legalizing this capitalist concept. Not a single principle of the Shariah upholds this concept as we have shown in this treatise.



The statement about “the preferred view” is highly misleading. This “preferred view” is actually Hadhrat Mufti Taqi’s personal opinion and preference. He has ‘analysed’ the view of the senior Ulama headed by Hadhrat Maulana Ashraf Ali Thanvi on the one side, and the view of the juniors of this age headed by Qadhi Mujaahidul Islam. Setting aside the fatwa of categoric impermissibility of our and his illustrious Akaabireen, at Mufti Taqi Saheb preferred the view of the contemporary Molwis. Presenting his second reason for his preference, Hadhrat Mufti Taqi Saheb comments: “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’aan and the Sunnah. In such situations, an Islamic state can prefer one view over the other, and if it does so by a specific legislation, its decision is binding even on those scholars who have an opposite view.”



We hold a diametric opposite view which we claim is based on the principles of the Qur’aan and Sunnah while the opposite view is utterly baseless having absolutely no basis on any principle of the Qur’aan and the Sunnah. Hadhrat Mufti Saheb has opened up the superfluous and futile dimension of an Islamic state. What relationship does this western concept of copyright have with an Islamic state? In this age an ‘Islamic state’ is utopia. There exists not a single Islamic state anywhere in the world. All Muslim countries are in the grip of either murtadd or fussaaq rulers. These states have a host of kufr laws which they impose on Muslims. In relation to the present scenario, it is most despicable for Hadhrat Mufti Saheb to bring up the topic of an Islamic state and issue a fatwa that it is binding on Muslims to follow all the haraam scrap laws of these dajjaals.



Muslim countries, almost without exception, have cancelled the Qur’aanic laws of Talaaq, to mention just one. Three Talaaqs issues, whether in one or three different sessions are not valid if executed without secular court intervention in some countries. Such kufr cannot be binding on Muslims in general, leave alone the Ulama-e-Haqq. Really, this is a truly superfluous argument. A separate book has to be written to refute what Hadhrat Mufti Taqi Saheb has averred in regard to the binding nature of haraam and kufr laws imposed by Muslim states, erroneously dubbed ‘Islamic’ states.



Imaam Ahmad Bin Hambal (rahmatullah alayh) preferred to be flogged mercilessly by the executioner of the Islamic state, rather than submit to the baatil legislation of the state. If the Islamic state enacts legislation to the effect that meat which is Matrookut Tasmiah Aamidan, i.e. the Tasmiah has been intentionally deleted when slaughtering animals, is halaal, it will NEVER be binding on even the Hanafi masses to accept such a law even though this law has validity according to the Shaafi Math-hab. The Ulama-e-Haqq will continue to proclaim the Haqq and say that such meat is haraam. These are merely two examples which we mention in passing.



The third reason advanced by Mufti Taqi Saheb for submission to the impositions of a secular state is as follows: “Thirdly, even if the government is not a pure Islamic government, every citizen enters into an express or tacit agreement with it to the effect that he will abide by its laws insofar 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 (no mandatory) in Shariah he must refrain from it.”



In the first place, there is no such express or tacit agreement with the secular state. The only tacit agreement is that Muslims living in dajjaal states will submit to the laws of the country. The only option available to concerned Muslims is to circumvent discriminatory and oppressive laws by working around these very laws, and exploring loopholes in these laws and in the constitution of the country. In this way, the Muslim is forced to conduct his life in both kaafir and faasiq states.



This argument too is unrelated to the actual mas’alah of the permissibility or impermissibility of copyright. In passing we have to say that this argument has its flaws, and can be refuted thoroughly. Hadhrat Mufti Saheb conditions obedience to the secular government with “insofar as they do not compel him to anything which is not permissible in Sharih.”

But, this condition is practically neither observed by Muslims nor accepted by any secular government. There are many acts which are not permissible in the Shariah, but which are imposed on the Muslim citizens of the faasiq/kaafir state. Pictures of people are haraam. However, all Muslims are compelled to observe this haraam act, and all Muftis condone and accept the permissibility of Muslim submission to this impermissibility.



Post-mortems are haraam. But this haraam act is imposed on all Muslims who submit, and all Muftis decree that such submission to the kaafir/faasiq state is permissible.

The Hijaab of Muslim ladies is totally violated when they have to deal with males in governmental offices. All Muftis rule that such violation of Purdah which is haraam, is permissible in the secular state. Similarly, there are other incidents of impermissibilities which are compulsorily imposed on Muslim citizens of the secular states. Thus, the averment of Mufti Taqi Saheb is bereft of substance. With regard to permissibilities – acts which are not mandatory in the Shariah – it goes without saying that Muslims should not contravene the laws of the land unnecessarily and invite criminal charges and problems for themselves. But this issue is not contested and does not form part of the discussion pertaining to permissibility or impermissibility of copyright.

THEIR BAATIL FATWAS



“O People of Imaan! Verily, numerous Ulama and Mashaaikh devour the wealth of people unlawfully, and (thereby) prevent (people) from the Path of Allah”. (Surah Taubah, aayat 34)