Michael D. Moberly June 14, 2017 ‘The business intangible asset blog where attention span really matters!’
Introductory Note: This post represents the second in a series of posts intended to encourage, through explanation, professional service (business, law) firms to acquire operational familiarity with Islamic intellectual property and Sharia interpretations as preludes to attracting – engaging clients and negotiating and executing relevant transactions. Readers can be assured throughout these posts, the sovereignty of Islam is respected.
I am most hopeful this post favorably influences professional service firms serving clients in the IA (intangible asset) and IP (intellectual property) arenas to pursue engagements in which parties are guided by principles-beliefs of Islamic (Sharia) law as being a prudent inevitability and not a troublesome threat that prompts trepidation, fear, or concern for (firm) reputation risk.
Intellectual property is not alien to the Muslim religion. Islam is a religion uniting itself in both the spiritual and temporal aspects of life. Understanding of the sources of Islam is crucial to deducing the concepts that support protection of intellectual property. Muslims are obliged to ensure that everything he or she does is consistent with Sharia. Bashar H. Malkawi www.austlii.edu.au/au/journals/SCULawRw/2013/4.pdf
As readers know, there is an abundance of professional service firms with expertise in western IP (intellectual property) law, common to the G7’s, European Union, World Trade Organization member countries, and signatories to Trade Related Aspects to Intellectual Property Rights (TRIPS). On the other hand, it is challenging to identify practitioners and/or firms’ in the U.S.,
• with confidence of expertise and experience regarding the principles
and application of Islamic (Sharia) law.
• to effectively guide clients on IP matters and execute transactions
in which IP and other IA’s are in play, and
• one or more parties to the transaction, or the transaction itself
takes place in a Muslim nation.
An essential requisite to these circumstances, is for the relevant parties to exhibit knowledge and respect for and work toward achieving the point at which the principles of both western and Islamic (Sharia) IP law can respectfully fuse to effectively negotiate and execute the transaction.
Of course, some professional (business, law) service firms rationalize their reluctance to engage clients – projects in which Sharia law will be a factor, in-light-of periodic and public anti-Sharia rhetoric and protests, which, in some instances, materializes as intolerant legislation.
Of course, there are over-riding geo-strategic economic indicators for PSF’s (professional service firms) to acquire operational level familiarity about how Islamic law treats the development, ownership, value, and transfer of intellectual capital, i.e., products of one’s mind, be it in individual, entrepreneurial, and/or business-to-business (technology transfer) contexts. Doing so entails horizonal thinking-looking PSF’s, e.g., law firms, etc., to acquire current operational level familiarity with the foundations, principles, and interpretations upon which Islamic – Sharia intellectual property law is based and applied.
Certainly not for-the-purpose of challenging Sharia or destabilizing its influence. Rather, because it is a universal and irreversible economic fact that 80+% of most companies, organizations, and institutions’ value, sources of revenue, and foundations for growth, and sustainability lie in – emerge directly from intangible-IP assets.
This reality should be instructive to business services (law) firms in the form of obligations to achieve familiarity with Sharia interpretations of Islamic IP law. The rationale for doing so lies in the economic fact that all forms of IA’s, e.g., intellectual properties, are increasingly integral to every transaction outcome. Operational level familiarity of Islamic IP law and Sharia interpretations will lead to respectful and important insights and strategic guides for negotiating transactions in which win-win outcomes are obligatory.
Fortunately, there are new – current academic (legal) research papers that shed much needed and practical light on both the fundamentals and intricacies of Sharia influence on Islamic intellectual property law. Studying these papers closely guide parties to transactions to minimize reckless and misguided assumptions and making irreversible errors insofar as introducing, proposing, and negotiating a transaction without subordinating or disrespecting western IP law to Islamic IP law.
A particularly useful paper in this regard, and one which I frequently reference is authored by Silvia Beltrametti titled ‘The Legality of Intellectual Property Rights Under Islamic Law’.
A particularly beneficial aspect to Beltrametti’s work is that she does not intend for it to serve, in any way, as a basis to sort out the conventions and/or distinctions between western and Islamic IP laws, regulations, and standards for an imagined or presumed (future – eventual) convergence. Readers would be correct to assume that is my intent here as well.
That said, in my judgment, professional services (business, law) firms that purposefully take strategic initiative to acquire even a rudimentary understanding of and respect for Islamic (Sharia) law and its relevance and application to negotiating and executing transactions is a feature which firms can correctly promote in the context of being an ‘early adopter’ which in turn, elevates the bar for a firm’s competitiveness, reputation, goodwill, and foresightedness.
Sharia law today is often conceived and portrayed through extremely disturbing media visuals applied by its most extreme elements, i.e., Al Quaeda, ISIS, Taliban, etc. Reasonable persons recognize such horrific acts-behaviors are not representative of the whole of Islam. Similarly, some are inclined to suppose the volume of Islamic refugees migrating (escaping) throughout the EU since 2015 and variously to the U.S. and elsewhere, marks the onset of conspiratorial efforts to converge Islamic – Sharia law with western religiosity with dilution and subordination being a predictable outcome. It remains admirable for professional service firms to understand the distinctions and practicalities of Islamic (IP) law and the various Sharia influences and interpretations because doing so can lead to respectful insights and likely collaborations and transactions going forward.
Among other important aspects of Dr. Beltrametti’s work regarding Islamic intellectual property law, is that it is, in many respects, in its early stages of interpretation and promulgation in terms of modernity. Ms. Beltrametti, a JD from the University of Chicago with an emphasis/specialty in IP, states that intellectual property rights, per se, are not regulated by Islamic law and its jurisprudence. Rather, the question or issue, she posits, is whether the principles of Islamic law can be practiced in a manner that provide for IP rights enforcements and safeguards. Professor Beltrametti does this initially by presenting Sharia’s main sources; the Qur’an, the Sunna, Ijma and Qiyas. I should note that the term Sharia, as applied throughout Beltametti’s paper, is synonymous with Islamic law.
Appropriately, Beltrametti notes tensions remain between the predominantly Western, and Islamic (Sharia influenced) perspectives of intellectual property rights, as well as the economic role these intangibles play. Ms. Beltrametti subsequently offers an intriguing and somewhat surprising characterization, i.e., Sharia-based (legal, intellectual property rights) system is flexible and adaptable, characteristics which are not often associated. Perhaps such measured flexibility and elasticity can be exploited by all parties to reflect the economic fact that 80+% of most company’s value, sources of revenue, and foundations for growth and sustainability today reside in or evolve directly from intangible, often IP-based assets.
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