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. 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.