Michael D. Moberly July 18, 2016 ‘A blog where attention span really matters!”
Among other things, I am most hopeful this piece prompts millennials educated – trained in IP (intellectual property) law to consider having engagements with companies and business persons operating in the conventions of Islamic (Sharia) law is an inevitability, not a distant or worrisome probability.
It’s easy to find law firms with current operational familiarity with G8 IP (intellectual property) laws. On the other hand, it is challenging to find firms’, particularly in the U.S., with IP practices that sense urgency to acquire comparable levels of (in-house) expertise with respect to Islamic (and Sharia) IP law. The rationales are obvious, but, to be sure, there are geo-strategic economic indicators aplenty that suggest acquiring even rudimentary familiarity how Islamic law treats intellectual capital, i.e., ownership – value of products of the mind in B to B (business) contexts. Through my lens, that’s precisely what horizonal thinking-looking IP law practices should consider preparing, especially in light of the universal economic fact that 80+% of most company’s value, sources of revenue, and ‘building blocks’ for growth, profitability, and sustainability globally lie in – directly emerge from intangible (IP-related) assets.
This globally universal and irreversible reality suggests there is prudence for law firms to achieve operational familiarity with Islamic IP and its Sharia interpretations. That’s because
IA’s (intangible assets) and their close cousins, IP, are now consistently integral and in play in overwhelmingly large percentages of transactions related to business development, operation, growth, profitability, sustainability especially when tactical, strategic, negotiation, and outcomes are critical.
Fortunately, there are a few academic papers that shed practical light on the fundamentals as well as the intricacies of Sharia influences on Islamic IP law. A particularly useful paper which I frequently reference is authored by Silvia Beltrametti titled ‘The Legality of Intellectual Property Rights Under Islamic Law’.
After studying Beltrametti’s paper, it is clear her work/research on these matters, was not intended to serve as an instrument to sort out the conventions of Islamic, western, and Asian IP (intangible asset) law for an imagined or presumed (future – eventual) convergence. There is little doubt in my judgment, law firms that choose to acquire a rudimentary understanding of Islamic (Sharia) IP law can, in an early adapter mode, set a high bar for (law firm) competitiveness.
I am confident there are few, if any, minds who believe a global convergence of IP law is an inevitable extension of (business) globalization. Of course, understanding the distinctions and practicalities of Islamic IP (Sharia influences and interpretations) law can lead to many useful and necessary insights going forward.
Among other important aspects of Dr. Beltrametti’s work is that Islamic IP rights are essentially, in their early stages of promulgation and/or regulation. Going forward, there are obvious issues that need to be resolved. A prominent issue is whether the current political and cultural-tribal turmoil, war, and rhetoric that envelope a significant percentage of the land mass – countries where Islam dominates can subside. At least long enough whereby relevant principles of Islamic (Sharia) and western WTO (World Trade Organization) IP law can find common ground intellectually, operationally, and legally to achieve a level convergence whereby IP and technology transfer can be accommodated on a routine basis.
To be sure, there are substantial challenges which, no doubt, will require time, trust, and political will to resolve, assuming of course, there will recognition at some point, perhaps born out of mutual economic – trade necessities to…
• ameliorate perceptions of dominance of western IP law.
• encompass Islamic perspectives regarding legal rights to outcomes of intellectual capital.
• incorporate interpretive flexibility and adaptability with respect to Sharia law’s primary sources; the
Qur’an, the Sunna, Ijma and Qiya, which are often applied synonymously with Islamic law.
It is conceivable, not Pollyannaish, to believe all could be respectfully achieved – applied, as it has in other countries – regions, as a reflection of global business – trade – technology transfer realities. And, recognition of the economic fact that 80+% of most company’s value, sources of revenue, and ‘building blocks’ for growth, profitability, competitiveness, and sustainability today reside in or emerge directly from intangible and IP-based assets.
Silvia Beltrametti, (The Legality of Intellectual Property Rights Under Islamic Law, The Prague Yearbook of Comparative Law 2009. Mach, T. et al. (Eds). Prague, 2010. pp. 55-94).