Archive for 'Islamic IP'

Islamic – Sharia Intellectual Property Professional Service Firms (part 1)

June 15th, 2017. Published under Islamic IP, Law Firms, Transaction negotiations and intangible assets.. No Comments.

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.

Comments and questions regarding this post may be directed to m.moberly@kpstrat.com.

Islamic – Sharia Intellectual Property Law Professional Service Firms (part 2)

June 15th, 2017. Published under Intellectual Property Rights, Islamic IP. No Comments.

Michael D. Moberly June 15, 2017 ‘The business IP and intangible asset blog where attention span really matters!’ (m.moberly@kpstrat.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

Comments and questions regarding this post are welcome and may be directed to m.moberly@kpstrat.com.

Islamic Intellectual Property Law

July 18th, 2016. Published under IP strategy., Islamic IP, Looking Forward. No Comments.

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).

Islamic Intangible Asset and IP Law

January 19th, 2015. Published under Islamic IP, Uncategorized. No Comments.

Michael D. Moberly    January 19, 2015    ‘A blog where attention span really matters’!

It’s easy to find law firms with operational familiarity with G8 intellectual property laws, but, quite challenging to find firms’, particularly within the U.S., with IP practices that are attaching – sensing much urgency for acquiring a comparable level of (in-house) expertise with respect to Islamic (and Sharia) IP law. The underlying rationale for such initiatives lie in…

  • numerous geo-strategic and historical indicators that suggest that’s precisely what horizonal thinking-looking IP practices should be doing.
  • IP (and other forms of intangible asset) law inevitable requisites to enhancing – expanding IP practice space.
  • 80+% of most company’s value, sources of revenue, and ‘building blocks’ for growth, profitability, and sustainability globally lie in – directly emerge from intangible assets such as IP.

Collectively, these realities make it prudent for law firms’ to achieve business operational familiarity with non-western IP.

In other words, IP and other forms of intangible assets are now routinely – consistently in play, i.e., tactically and strategically integral to negotiation and outcomes of business development, operation, growth, profitability, sustainability, and most transactions.

Fortunately, there are a few academic papers that describe the foundational intricacies of Islamic IP and Sharia influence. A particularly useful paper which I frequently reference is authored by Silvia Beltrametti, titled ‘The Legality of Intellectual Property Rights Under Islamic Law’. religious

While I am confident Beltrametti paper was not intended as an instrument to sort out conventions of Islamic, western, and Asian IP (intangible asset) law for inevitable convergence, her work does provides countless definitions, explanations, and otherwise extraordinary useful insights,

Among other important aspects Dr. Beltrametti conveys is that Islamic IP rights are in their earliest stages of promulgation and/or regulation. A crucial question which I wonder is whether political turmoil and vitriolic rhetoric will subside at some point whereby the devout principles underlying Islamic (Sharia) law, particularly IP and other forms of intangible assets, can reach a point of intellectual, operational, and respectful convergence.

Some significant challenges are embedded in Sharia law’s primary sources; the Qur’an, the Sunna, Ijma and Qiya which are often applied synonymously with Islamic law as a whole.

Still, what I and I suspect many readers would agree, there are substantial challenges that will require time, trust, and commitment to resolve, assuming of course, there will, at some point be the political will, perhaps born out of mutual economic necessities, for the firmly embedded historical and spiritual perspectives to…

  • ameliorate the dominance of Western IP law
  • respectfully encompass Islamic perspectives of intellectual property rights, and
  • incorporate its interpretive flexibility and adaptability..

Conceivably, either could be respectfully applied to reflect global realities such as 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.

As always readers comments are most welcome.

Islamic Law and Intellectual Property

January 24th, 2014. Published under Intellectual Property Rights, Islamic IP. 2 Comments.

Michael D. Moberly    January 24, 2014    ‘A blog where attention span really matters.’

Admittedly, I am not an expert in Islamic law, particularly those aspects which pertain to intellectual property and other intangible assets.  I do however, possess a very genuine desire to learn key practicalities of Islamic (and Sharia) law insofar as it relates to engaging in and/or endeavoring to conduct (business) transactions in which intellectual property and other intangible assets are in play, which I presume they are in Islam as they are in non-Islamic  sectors.

After reading and studying numerous, primarily academic, papers on what I respectfully refer to as an emerging business necessity, much of this post, I defer to an excellent paper authored 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 to the practical questions I was seeking, I concluded however, numerous questions remain 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/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 construed in a manner that actually provides for or supports intellectual property rights  protections in a conventional context.

Beltrametti’s paper further discusses the extent to which Islamic law has an impact on the protection of intellectual property (rights).  She 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.

Very appropriately, Beltrametti points out, tensions and challenges remain between (a.) the predominantly Western, and (b.) Islamic perspectives regarding intellectual property rights, as well as (c.) the role economics plays within Islamic law and society.  To that,  Ms. Beltrametti offers an  intriguing suggestion in which a Sharia based (legal, intellectual property rights) system, is flexible and adaptable.  Such flexibility, she suggests, can be used to address current economic facts/realities, for example,  80+% of most company’s value, sources of revenue, and ‘building blocks’ for growth, profitability, and sustainability today reside in or evolve directly from intangible, often IP-based assets.

Another equally 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 (Baker Botts) provides additional insight and is certainly worthy of 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 of law. Some IPR’s are actually strengthened by Islamic rule, while 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 (rights) has expanded to include trademarks, patents, and certain forms of copyright by granting limited exclusive rights to works, in exchange for the commercialization of original creations that benefit society, while also allow the owner (presumably the originator) to stop overt – unauthorized use, e.g., presumably acts such as counterfeiting, piracy, infringement, misappropriation, etc.
  • agree that Sharia does not refer to Islamic legal rules only, rather, Sharia encompasses a timeless concept of justice and fairness that may be best understood as constituting a higher rule of law with a divine connection.

After reviewing numerous (other) sources, I concluded, correctly and reasonably I trust, that…

  • there are varying degrees of latitude insofar as interpreting and applying IP and intangible asset matters under Islamic (Sharia) law, but
  • such laws are not being aggressively enforced, at least at the present time.  In other words, infringement and misappropriation, etc., in the Middle East, contributes to substantial losses of revenue for companies and/or individual business persons who rely – are dependent on intellectual property rights.

Obviously, it’s important and necessary to point out that such transgressions pose significant problems globally, not just in countries which practice Islamic law.

Both Cullen and Beltrametti note however, that an Islamic World Trade Organization 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 intellectual property rights are compatible with Shari’a and related Islamic legal concepts and practices.

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization (WTO) that sets down minimum standards for many forms of intellectual property (IP) regulation as applied to nationals of other WTO Members.[2] It was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994.

The TRIPS agreement introduced intellectual property law into the international trading system for the first time and remains the most comprehensive international agreement on intellectual property to date. In 2001, developing countries, concerned that developed countries were insisting on an overly narrow reading of TRIPS, initiated a round of talks that resulted in the Doha Declaration. The Doha declaration is a WTO statement that clarifies the scope of TRIPS, stating for example that TRIPS can and should be interpreted in light of the goal “to promote access to medicines for all.”

Specifically, TRIPS requires WTO members to provide copyright rights, covering content producers including performers, producers of sound recordings and broadcasting organizations; geographical indications, including appellations of origin; industrial designs; integrated circuit layout-designs; patents; new plant varieties; trademarks; trade dress; and undisclosed or confidential information. TRIPS also specifies enforcement procedures, remedies, and dispute resolution procedures. Protection and enforcement of all intellectual property rights shall meet the objectives to contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.  (Wikipedia)

In practice, however, intellectual property rights, be they TRIP’s initiated or otherwise, have respectfully, not been particularly well-received in some Islamic states.  That is, a percentage of the Islamic community believe the concept of intellectual property and the associated rights and responsibilities, particularly intellectual property-based innovations associated with advanced technologies, etc., originate predominantly in the West, and not from (their) religious sources.  This perspective. many agree, serves to elevate reluctance for a broader acceptance of intellectual property rights.

That said, numerous Islamic states have stringent intellectual property laws and regulations in place.  However some, not unlike other non-Islam countries, remain ineffective or experience particular challenges related to actual enforcement of intellectual property rights.

Appropriately then, one question to pursue further is whether this is a government influenced choice or mandate, or an enforcement resource 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 underlie a perception that intellectual property law, with provisions for the enforcement of intellectual property rights, constitutes another facet or form of Western oppression.  This perception has gained varying levels of strength within some sectors of the Islamic community.  In other words, infringement and/or misappropriation of intellectual property (rights) may not characterized so much as a legal wrong per se, rather a means for seeking revenge against the West.

So, how should all of this be interpreted by businesses wishing to engage in transactions in countries practicing Islamic law where in most instances, there is significant intellectual property and other intangible assets integral to a transaction and its outcome.  Admittedly, having not engaged in or consulted with companies engaging in business (transactions) is Islamic countries, I presume, as in any transaction occurring elsewhere, intellectual property and other forms of intangible assets will play a significant role.  Perhaps readers who are engaging in such transactions, they will find various other posts made at this blog to be relevant particularly those that address 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.

Islamic Law and Intellectual Property

August 17th, 2012. Published under Intellectual Property Rights, Islamic IP. No Comments.

Michael D. Moberly    January 24, 2014    ‘A blog where attention span really matters.’

Admittedly, I am not an expert in Islamic law, particularly those aspects which pertain to intellectual property and other intangible assets.  I do however, possess a very genuine desire to learn key practicalities of Islamic (and Sharia) law insofar as it relates to engaging in and/or endeavoring to conduct (business) transactions in which intellectual property and other intangible assets are in play, which I presume they are in Islam as they are in non-Islamic  sectors.

After reading and studying numerous, primarily academic, papers on what I respectfully refer to as an emerging business necessity, much of this post, I defer to an excellent paper authored 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 to the practical questions I was seeking, I concluded however, numerous questions remain 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/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 construed in a manner that actually provides for or supports intellectual property rights  protections in a conventional context.

Beltrametti’s paper further discusses the extent to which Islamic law has an impact on the protection of intellectual property (rights).  She 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.

Very appropriately, Beltrametti points out, tensions and challenges remain between (a.) the predominantly Western, and (b.) Islamic perspectives regarding intellectual property rights, as well as (c.) the role economics plays within Islamic law and society.  To that,  Ms. Beltrametti offers an  intriguing suggestion in which a Sharia based (legal, intellectual property rights) system, is flexible and adaptable.  Such flexibility, she suggests, can be used to address current economic facts/realities, for example,  80+% of most company’s value, sources of revenue, and ‘building blocks’ for growth, profitability, and sustainability today reside in or evolve directly from intangible, often IP-based assets.

Another equally 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 (Baker Botts) provides additional insight and is certainly worthy of 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 of law. Some IPR’s are actually strengthened by Islamic rule, while 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 (rights) has expanded to include trademarks, patents, and certain forms of copyright by granting limited exclusive rights to works, in exchange for the commercialization of original creations that benefit society, while also allow the owner (presumably the originator) to stop overt – unauthorized use, e.g., presumably acts such as counterfeiting, piracy, infringement, misappropriation, etc.
  • agree that Sharia does not refer to Islamic legal rules only, rather, Sharia encompasses a timeless concept of justice and fairness that may be best understood as constituting a higher rule of law with a divine connection.

After reviewing numerous (other) sources, I concluded, correctly and reasonably I trust, that…

  • there are varying degrees of latitude insofar as interpreting and applying IP and intangible asset matters under Islamic (Sharia) law, but
  • such laws are not being aggressively enforced, at least at the present time.  In other words, infringement and misappropriation, etc., in the Middle East, contributes to substantial losses of revenue for companies and/or individual business persons who rely – are dependent on intellectual property rights.

Obviously, it’s important and necessary to point out that such transgressions pose significant problems globally, not just in countries which practice Islamic law.

Both Cullen and Beltrametti note however, that an Islamic World Trade Organization 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 intellectual property rights are compatible with Shari’a and related Islamic legal concepts and practices.

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization (WTO) that sets down minimum standards for many forms of intellectual property (IP) regulation as applied to nationals of other WTO Members.[2] It was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994.

The TRIPS agreement introduced intellectual property law into the international trading system for the first time and remains the most comprehensive international agreement on intellectual property to date. In 2001, developing countries, concerned that developed countries were insisting on an overly narrow reading of TRIPS, initiated a round of talks that resulted in the Doha Declaration. The Doha declaration is a WTO statement that clarifies the scope of TRIPS, stating for example that TRIPS can and should be interpreted in light of the goal “to promote access to medicines for all.”

Specifically, TRIPS requires WTO members to provide copyright rights, covering content producers including performers, producers of sound recordings and broadcasting organizations; geographical indications, including appellations of origin; industrial designs; integrated circuit layout-designs; patents; new plant varieties; trademarks; trade dress; and undisclosed or confidential information. TRIPS also specifies enforcement procedures, remedies, and dispute resolution procedures. Protection and enforcement of all intellectual property rights shall meet the objectives to contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.  (Wikipedia)

In practice, however, intellectual property rights, be they TRIP’s initiated or otherwise, have respectfully, not been particularly well-received in some Islamic states.  That is, a percentage of the Islamic community believe the concept of intellectual property and the associated rights and responsibilities, particularly intellectual property-based innovations associated with advanced technologies, etc., originate predominantly in the West, and not from (their) religious sources.  This perspective. many agree, serves to elevate reluctance for a broader acceptance of intellectual property rights.

That said, numerous Islamic states have stringent intellectual property laws and regulations in place.  However some, not unlike other non-Islam countries, remain ineffective or experience particular challenges related to actual enforcement of intellectual property rights.

Appropriately then, one question to pursue further is whether this is a government influenced choice or mandate, or an enforcement resource 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 underlie a perception that intellectual property law, with provisions for the enforcement of intellectual property rights, constitutes another facet or form of Western oppression.  This perception has gained varying levels of strength within some sectors of the Islamic community.  In other words, infringement and/or misappropriation of intellectual property (rights) may not characterized so much as a legal wrong per se, rather a means for seeking revenge against the West.

So, how should all of this be interpreted by businesses wishing to engage in transactions in countries practicing Islamic law where in most instances, there is significant intellectual property and other intangible assets integral to a transaction and its outcome.  Admittedly, having not engaged in or consulted with companies engaging in business (transactions) is Islamic countries, I presume, as in any transaction occurring elsewhere, intellectual property and other forms of intangible assets will play a significant role.  Perhaps readers who are engaging in such transactions, they will find various other posts made at this blog to be relevant particularly those that address 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.