Michael D. Moberly June 15, 2017 ‘The business IP and intangible asset blog where attention span really matters!’ (email@example.com)
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.
The proposition here is to challenge arguments that Islamic law and (conventional, western) intellectual property law and practice cannot coexist. That is not to suggest one will be superior – subordinate to the other. Instead, it simply implies there are strategies to respectfully ameliorate both.
So, another informative paper titled ‘Can TRIPS Live in Harmony with Islamic Law: An Investigation of the Relationship between Intellectual Property and Islamic Law?’ authored by Chad M. Cullen (Fall, 2010 SMU Science & Technology Law Review 14 SMU Sci. & Tech. L. Rev. 45) also provides relevant insights to the Islamic faith especially insofar as pointing out that…
• intellectual property (rights) are not new concepts to Islamic rule
of law. In fact, some IPR’s are strengthened by Islamic law, while
others were never explicitly formulated (as law), instead, they
evolved as accepted social-business norms.
• the concept of intellectual property (rights) in Islam has expanded
to include trademarks, patents, and certain forms of copyright.
• granting limited exclusive rights to commercialize such works to
benefit society collectively.
• originators-holders have remedies to stop overt – unauthorized use
of their ‘product of the mind’, presumably acts such as
counterfeiting, infringement, and misappropriation, etc.
• Sharia does not refer to Islamic legal rules only, rather Sharia
serves as an enduring and timeless concept to reflect justice and
fairness, and constitutes a rule of law with a divine connection.
It’s reasonable to conclude from Cullen’s work regarding the relationship between intellectual property and Islamic Law that there is various latitudes exist insofar as how IP and intangible asset matters (under Islamic – Sharia law) can be interpreted and applied. For example, by many accounts, laws intended to deter, prevent, stop, and/or mitigate theft, misappropriation, and infringement of registered IP and/or proprietary intangible assets, i.e., intellectual, relationship, and structural capital in particular, are not consistently or aggressively enforced.
One reason IP laws and safeguards enacted by Arab countries are variously unenforced is due, at least in part, to inherent complexities embedded in the collective nature and community values of Arab culture which presents various challenges insofar as introducing (conventional) IP concepts of propriety, individual ownership, control, and remuneration emanating as products of one’s mind. These important concepts, rooted in religious belief and societal culture, variously affect government or individual inclinations to safeguard IP in Arab countries. In part, that’s because some still hold to the belief that ‘property’, be it spiritual or temporal, is communal, and therefore owned by Allah. However,sharing same is generally not considered to be a violation because some Sharia schools of law permit one to gain profit from their individual efforts. For example, an author or inventor can be entitled to recoup their initial investment and beyond, as-long-as that amount is deemed fair and balanced with the time and effort exerted. Paradoxically, some followers of the Muslim faith draw attention to the fact that intellectual property safeguards are traceable to concepts found in Sharia and are not exclusively a Western phenomenon. (Bashar H. Malkawi)
The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization (WTO). The TRIPS agreement introduced intellectual property law into the international trading system for the first time and arguably is the most comprehensive international agreements on intellectual property matters and safeguards to date. TRIPS was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994.
Both Cullen and Beltrametti, in their respective research, note that every Islamic nation signatory to TRIPS, is obliged to adhere to – uphold the provisions of the TRIPS agreement. Presumably TRIPS influenced some Islam dominant nations to enact their own IP laws to, at least, reflect TRIPS minimums. In that context, it’s reasonable to assume that countries that are principally guided by the Islamic faith and are also signatories to TRIPS, believe that intellectual property rights are – can be compatible with Sharia principles, interpretations, and practices.
But, in 2001, groups of developing countries (signatories to TRIPS) expressed concern that developed countries were asserting a particularly narrow interpretation of TRIPS regarding ‘promoting access to medicines for all’. Public airing this concern resulted in what is referred to as the Doha Declaration which is a WTO pronouncement that clarifies the scope of TRIPS.
In actual practice, however, passage of intellectual property rights (laws) in predominantly Islamic faith countries, whether sparked by TRIP’s, or other factors, such as WTO requisites, have not been particularly well-received. That is, a percentage of nations – communities with substantial adherence to the Islamic faith, support for conventional IP has not been widespread, in part due to the belief – reality that large percentages of innovation that emerge from IP and proprietary intangible assets, i.e., advanced technologies, etc., originate predominantly in the West, and not from Islamic (religious) sources.
However one may elect to interpret this perspective, it does variously produce reluctance – hesitancy to fully adopt (accept) broader recognition of conventional intellectual property rights in some sectors of Islam
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