Michael D. Moberly August 15, 2012
I certainly do not consider myself an expert in Islamic law pertaining to intellectual property and other intangible assets. However, I do possess a very genuine desire to learn key practicalities of Islamic (and Sharia) law related to engaging in – conducting transactions in which intellectual property and other intangible assets are in play.
In an excellent paper by 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), while I did find many answers, I also concluded there are numerous questions remaining insofar as the actual application of Islamic law to IP (intangible asset) conventions.
Ms. Beltrametti, a JD from the University of Chicago with an emphasis in IP, states that intellectual property rights are not regulated by Islamic law and jurisprudence per se. Rather, the issue, she says, is whether the principles of Islamic law can be constructed in a way to provide support for such protection?
Beltrametti’s paper further discusses the extent to which Islamic law has an impact on the protection of intellectual property. She does this initially by presenting Shar?’a’s main sources; the Qur’an, the Sunna, Ijma and Qiyas. I should not that the term Shar?’a, as applied throughout Beltametti’s paper, is synonymous with Islamic law.
Very appropriately, Beltrametti points out, tensions and challenges remain between (a.) the predominantly Western, and (b.) the Islamic views on intellectual property, as well as (c.) the role of economics within Islamic law and society. That said, an intriguing suggestion Ms. Beltrametti offers is that a Shar?’a based system is flexible and adaptable, and such flexibility can be used to address economic realities of the day, e.g. 65+% of most company’s value, sources of revenue, and ‘building blocks’ for growth and sustainability reside in – evolve from intangible (IP) assets.
Another equally good paper, titled ‘Can TRIPS Live in Harmony with Islamic Law: An Investigation of the Relationship between Intellectual Property and Islamic Law?’ written by
Chad M. Cullen (Baker Botts) provides much additional insight and is certainly worth one’s time to read and study.
Both authors/researchers, in their respective style…
- agree that intellectual property (rights), per se, are not particularly new concepts to Islamic rule. Some IPR’s were actually strengthened by Islamic rule, others were never explicitly formulated (as law), instead, they evolved as accepted social norms.
- point out that since the advent of Islam, the concept of intellectual property has expanded to include trademarks, patents, and forms of copyright. A commonality is that they grant limited exclusive rights in exchange for the commercialization of original creations that benefits society. They also allow the owner (presumably the originator) to stop any unauthorized use, e.g., presumably acts such as counterfeiting, piracy, infringement, etc.
- agree that Shar?’a does not refer to Islamic legal rules only. Rather, Shar?’a encompasses a timeless concept of justice and fairness that is best understood as constituting a higher rule of law with a divine connection.
After reviewing numerous (other) sources, it’s reasonable to conclude, in my view, that (a.) there is latitude insofar as interpretation and application of IP and intangible asset matters under Islamic (Sharia) law, and (b.) such laws are not being aggressively enforced, i.e., infringement and product piracy in the Middle East contributes to substantial losses of revenue for major companies relying on such (IP) rights. It’s important to point out that such transgressions pose significant problems globally, not just in the Middle East.
Cullen, as well as Beltrametti note that an Islamic WTO member state is obligated to uphold the requirements of TRIPS. Under Shari’a, this has led many Islamic states to enact intellectual property laws meeting the minimum standards of TRIPS. Thus, being a signatory to TRIPS essentially verifies (operationalizes) the belief that IPR’s are compatible with Shari’a and related Islamic notions and concepts.
In practice, however, intellectual property laws have not been well-received in Islamic states in that a percentage of Muslims believe the concept of intellectual property itself, particularly innovations (IP) associated with advanced technologies, originates in the West, and not from their religious sources. This perspective serves to elevate reluctance for broader acceptance of IP.
Too, while many Islamic states have stringent IP laws and regulations in place, some remain ineffective or experience particular problems related to enforcement. Appropriately, one question is whether this is a governmental choice rather than enforcement issue. Taking this perspective several steps further, some assume that forcing WTO membership and TRIPS upon Islamic states through threats of import/export restrictions and high tariffs, the perception of intellectual property rights as constituting another facet of Western oppression, has grown so strong that many Muslims perceive intellectual property infringement not as a legal wrong, but instead as a means of seeking revenge against the West.
So, how should all of this be interpreted by businesses wishing to engage in business transactions in predominately Muslim countries when there is significant IP and other intangible assets in play? In my judgment, the best course of action is to closely examine the various posts made to my blog that encompass intangible asset due diligence and risk assessments.
(I am very grateful for the work/research produced by Silvia Beltrametti and Chad Cullen in the development and writing of this blog post and I encourage readers to read their respective papers.)