THE SHAR’I STATUS OF COPYRIGHTS AND PATENCY RIGHTS

By (Hadhrat Mufti Muhammad Shafi) – Rahmatullah alayh –

It is not permissible for an author or an inventor to register any book or invention respectively thereby preventing others from publishing the book and manufacturing the invented item. A person may be prevented from a permissible activity because of two reasons:



(1) The activity is carried out in the property of another person without his consent.

(2) The activity is harmful for others.

In the question under discussion both these factors are not to be found. With regard to the first factor, the publisher or the manufacturer does not operate in the property of the author or the inventor. On the contrary, he arranges all the ways and means for the publication of the book or for the manufacture of the invented item. The book which he prints has also been acquired lawfully Haqq-e-Tasneef (Copyright) is neither maal (tradable commodity) nor does it have the capability of mielkiyyat (becoming someone’s property). However, in the present age, the government has awarded it the status of a right just as it has decreed many other baseless things to be rights.



The second factor (mentioned above) is also non-existent because the publisher of the book does not prevent the author or anyone else from printing and distributing the book. The issue of dharar (harm) is not applicable. On the contrary, the publication by others closes the avenue for exorbitant prices charged by the author and the inventor. When others also publish the book or manufacture the product, the masses are not constrained to buy at the exorbitant prices fixed by the whim and fancy of the author and inventor. Thus, firstly, this (printing of the book by others) is not dharar. It is admun nafa’ (non-acquisition of profit). In fact it is taqleeun nafa’ or decrease in profit. The difference between dharar and admun nafa’ is quite obvious.



In Mabsoot of Shamsul Aimmah it is mentioned with clarity that it is not permissible to become a cause for dharar (harm) for others. However, if one’s (lawful) activity leads to a decrease in the profit of others, then one’s activity remains lawful. If a particular shopkeeper’s profit decreases or he makes no profit as a result of several shops selling the same wares opening up in the vicinity of his shop, it will not be said that the other shops have caused him dharar. There is therefore, no Shar’i nor rational reason for debarring others The only reason why an author is averse to others printing the book is to enable him to sell at a high price which he cannot do in the face of competition by others, or his desire is that he alone should derive the benefit of the trade while others are deprived of this lawful gain. This is in fact harm caused to the masses. Hence, instead of debarring others, the author/inventor should be debarred because the Shariah does not permit benefit of an individual at the expense of the masses.



There are many such examples in the authentic Ahaadith. In Bukhaari and Muslim is the narration of Hadhrat Abdullah Ibn Abbaas (radhiyallahu anhu): “Rasulullah (sallallahu alayhi wasallam) forbade that the caravans (of grain) be intercepted, and that the urbanite sells for the village-dweller.” Here Rasulullah (sallallahu alayhi wasallam) prohibited people of the town (traders and agents) from going to the outskirts to buy grain, etc. which farmers bring to the city. They should not be intercepted on the way and all their produce bought. They should be allowed to enter the city and sell directly to the public. Simarly, agents from the city should not sell the produce of the farmers. To avoid monopoly which will enable the agent or the handful of agents to fix high prices, Rasulullah (sallallahu alayhi wasallam) instituted this measure. The cheap prices at which the farmers will themselves sell their produce directly to the public will be eliminated by the monopoly of the agents. This will be harmful for the masses. Similarly, the Hadith prohibits hoarding of grain and essential foodstuff. In this practice the grain is hoarded in anticipation of higher prices. When the prices rise, the grain is then sold. This prohibition is also to save the masses from difficulty and hardship.

A salient fact in these examples is that these acts are tasarruf (operation) in one’s own mielk (property). Inspite of this, the Shariah has not given people the right to act in a way which will cause distress to the masses. Now what should be the ruling pertaining to something which is not even related to one’s mielkiyyat (ownership), and which constitutes a cause for distress to the public at large?



A person intends to operate in his own mielk, wanting to print the book or manufacture a product, then the author or inventor becomes an obstacle preventing him from this tasarruf in his own mielk. How can this be tolerable?



The noble Fuqaha have formulated a special principle on the basis of the Qur’aan and Hadith for eliminating dharar, and they have narrated many examples of this in Ashbaah wa Nazaair under the heading, Adhararu Yuthaalu. In brief, sometimes the Shariah tolerates shakhsi dharar for the sake of eliminating dharar aammah. (Shakhasi dharar is harm for an individual. Dharar Aammah is harm suffered by the public or the masses.). On the basis of this principle the ruler has the right to fix prices of necessities when there develops a need for this.



It is inconceivable that the Shariah would accept a dharar aammah whose elimination does not harm anyone. In fact, this cause of dharar aammah is not even admun nafa’ (not making any profit). It is only an imaginary decrease in profit (which has yet to be acquired). (Hadhrat Mufti Shafi – rahmatullah alayh – here is saying that the Shariah does not tolerate the public-harm which is caused by the author’s monopoly. In safeguarding the interests of the public at large in relation to printing and publication, harm and loss are not caused to the author. If there is any such harm, it exists in only the imagination of the author – Mujlisul Ulama)



Let us ponder on the scenario universally prevalent in the present age. Neither the poor nor the wealthy, nor the high and the low, feel safe in the state of the all-pervading unrest of the world. Innumerable lawful and unlawful ways for the acquisition of wealth have been introduced and are being fabricated. One of the prime causes for the universal state of strife and unrest is that the capitalist governments, their collaborators and helpers have either captured for themselves or transformed into market commodities the ways of earning which the Shariah of Islam has ordained as public property in which all people have a common right. However, those who pay taxes become the owners of such means and ways. (Or governments have by legislation claimed all public land and the ways and means of earning which the Shariah has set aside for free public use and to be acquired as private property by any individual who desires to own such land or public assets.—Mujlisul Ulama) This was the starting point of the conflict between the capitalists and the workers—a conflict which spawned the unnatural insane system of socialism. Different types of calamities followed in the wake of this system.



With certitude it can be said that as long as the straight, clear and just social system of Islam is not accepted the present state of unrest will not end, and public safety will not be achieved. In terms of this (Islamic) system, whatever Allah Ta’ala has made waqf for the masses (i.e. ordained as public property in which everyone has a share) should be released from the grip and domination of individuals (the capitalists who have grabbed all such means). Similarly, whatever is lawfully the property of individuals, others should not be allowed to even cast their gaze on it.



Examples of public property made waqf for the entire population are the oceans and whatever they yield, the mountains and whatever they yield, the forests, natural fountains, springs, dams, etc., and their yield. All these should be freed and restored for public use. Similary, the unjust ‘right’ of authorship (copyright) should be eliminated and every entrepreneur should be given the opportunity to derive profit from his enterprise and labour.



It is only this (Islamic) system of justice and moderation which can guarantee public safety and peace. The summary of this discussion is: In reality copyright and patency right are not things which can become the property of individuals. To prevent a person from applying his effort and capital in the process of printing a book and manufacturing a product which he has seen, is in fact to prevent him from something which is lawful for him and to which he is entitled. It is obvious that such prevention is zulm (oppression) which is not permissible.

Some people present the argument that a benefit of registering copyright is to prevent publishers from printing mutilated and erroneous versions of the books. They do so merely for the sake of gaining more profit. Thus, the true aim of the author is not realised. The response: In such cases the author has the Shar’i right to institute legal proceedings against the publisher because he has attributed to the author a version which is false. In this manner the publisher could be restrained or compelled to rectify the wrong. But there is no Shar’i permission for imposing a general ban on publications.



When it is now understood that the author and the inventor have no right whatsoever of exclusively printing and manufacturing their book and product respectively, then it will be understood that according to the Shariah it is not permissible to trade in these ‘rights’. Maal (tangible asset) is a condition for the validity of buying and selling while haqq-e- mujarrad (an abstract right) is not maal even if it is a means for the acquisition of wealth. And Allah Subhaanahu Wa Ta’ala knows best. (Jawaahirul Fiqh, Vol. 2, page 329)

The penultimate ruling stated by Hadhrat Mufti Shafi (rahmatullah alayh) applies when the right is a true haqq recognized by the Shariah. Notwithstanding the validity of a true right, the Shariah prohibits its buying and selling because it is not a tradable asset. In so far as the imaginary copyright, patency right and similar other kuffaar-concocted

‘rights’ are concerned, the prohibition will have greater emphasis.