Islamic – Sharia (IP) Law…Professional Service Firms…

This post is intended to encourage U.S. business leadership and professional service firms to…recognize the importance of acquiring familiarity with key cultural, legal, and religious distinctions which embody Islamic law, and Sharia interpretations, regarding ‘intellectual property’ and intangible asset matters.

Most assuredly, there is no intent posited here to…challenge the tenants or sanctity of Sharia or destabilize its influence…in favor of western IP law.

Through my non-theologian lens…I can respectfully assume there is a percentage of adherents to the Christian, Jewish, Islamic, Catholic, and Hindu religions, respectively who prefer to be and are observant of their religion and it teachings. That is, engage life and its various circumstances in ways that reflect the interpretations of their religion’s original (current) thought and practice.

More specifically, observant’s are receptive – inclined…for various reasons, to interpret their religions’ historical teachings, i.e., rules, obligations, etc., as one should endeavor to faithfully practice and conduct one’s life, through literal interpretations.

Too be sure, such interpretations and subsequent life practices and culture…may be incompatible with tenants associated with other religions. For example, insofar as this post is concerned, recognizing – distinguishing the product of intellectual and structural capital and its potential for privatization – commercialization as intellectual property, i.e., patents, copyrights, trademarks, etc.

A perspective I hold about Sharia (law) in particular, which I have sought and acquired…from speaking with various Islamic scholars residing in the U.S. and studying their published papers, is that Sharia, not seemingly unlike other religious tracts, may respectfully be regarded on somewhat of a continuum.

  • negotiating and executing transactions within global Islamic business
  • communities.
  • Further, this post is intended to…mitigate professional service firms’ reluctance to actively pursue prospective engagements – clients…

  • configuration
    configuration

Perhaps some religious doctrine, be it Islam and Sharia (law)…or Catholicism or Judaism. Arguably, each is compatible with democratic institutions, that is, it periodically requires, or at least is subject to interpretation, which most would agree one prelude is, historical context and/or legal precedent.

In business transaction negotiations, those which I am familiar…it is important, if not essential, that all parties at the proverbial table, as well as those advising those seated at the table, have current clarity regarding the various ‘influencers’ which may be in play, i.e., personal and/or professional motivations, emotions, and religious. Certain influencers, as readers know, may precede, dominate, or serve as ‘tipping points or ‘hard lines’ to any negotiation. That said, I, rather strongly believe, when…

  • the right players are in the room, seated at the negotiating table, lucrative and competitive outcomes can prevail.

An important key to achieving this, in my judgment…is for the relevant negotiators (decision makers) to self-assume a professional obligation to bring negotiable clarity to aspects of a business proposal or transaction which can be amenably converged into win-win configurations…

  • this is a prudent inevitability, not a troublesome risk that will sustain FUD factors, i.e., fear, uncertainty, and doubt, or otherwise put a firm’s reputation at risk, and
  • with the sovereignty of Islamic business culture and practice, and adherents to Sharia law intact and respected, and
  • which the relevant parties may be guided by principles-beliefs of Islamic – Sharia law.

Admittedly, it is challenging to identify…practitioners of professional service firms’ in the U.S. who possess the historical expertise, confidence, and respect to distinguish the continuum of principles and guiding perspectives upon which Islamic (Sharia) law is founded.

Islam is a variously complex religion which espouses unity…in adherent’s spiritual and temporal aspects of their life. In this sense, intellectual property is not wholly alien to the Muslim religion.  Recognizing – respecting the sources – origins of Islam is essential to understanding the concepts that support safeguarding of intellectual property.  See Bashar H. Malkawi www.austlii.edu.au/au/journals/SCULawRw/2013/4.pdf

U.S. business leadership and professional services are obliged to give attention due to..the observant, i.e., adherents of Islamic – Sharia law and culture to elevate their attractivity to business client negotiations and/or transactions which can produce amenable outcomes…

  • especially when reasonable negotiators conceive, in this instance, that the respective laws – religious tenants governing a buy, sell, trade, transfer, or joint use of certain intangible assets, i.e., intellectual, structural, and/or relationship capital and intellectual properties, and
  • their valuation, competitiveness, and revenue generation capability.

Obviously, there are countless professional service (law) firms…with practice area expertise in western IP (intellectual property) law, common to the G8’s, World Trade Organization members, and signatories to the TRIPS Agreement (Trade Related Aspects to Intellectual Property Rights)…

  • but, to effectively guide clients on IP matters and execute transactions in which IP and other intangible assets are in play, and,
  • when one or more parties emerge from a nation which embody a continuum of Sharia law adherents may be dominant, that should be an action item on any firm’s agenda.

An essential requisite to business – transaction negotiations in these circumstances, is for the parties to…exhibit familiarity and respect, not solely for the other parties’ work product, but the religious drivers, when doing so is relevant.

And then, commence negotiating toward the point at which…the principles – tenants of western IP law and Islamic (Sharia) law may coalesce – converge to (a.) reflect each parties needs, and (b.) manifest as a lucrative, competitive, and win-win outcome.

I, and others, have found, some professional service firms rationalize their reluctance to...pursue – engage clients and/or projects when there is probability for Sharia law applications which may be pressumed to be insurmountable…

  • especially in-light-of anti-Sharia (Islam) rhetoric which has materialized in the U.S. and other countries and interpreted as being wholly intolerant of western practices,
  • which a professional service firm may interpret as exposing them to
    reputation risk.

On the upside, there are numerous geo-strategic (economic, competitive) indicators which suggest…professional service firms would find it horizonally prudent to pursue – acquire sufficient familiarity with distinctions between the progressive and conservative-observant continuums of Islamic – Sharia law and their respective treatment of…

  • the development, ownership, safeguards, valuation, and transfer of intellectual, structural, and relationship capital, i.e., products of one’s mind…
  • individual, entrepreneurial, business-to-business and forms of technology transfe

Doing so entails horizonal thinking-looking leadership to… acquire the necessary level of operational level familiarity with the foundations, principles, and interpretations upon which privately developed innovation occurs in Sharia contexts.

Instead, the validity of this post should it be interpreted as…emanating from the globally universal, irrefutable, and irreversible economic fact that…

  • 80+% of most companies, organizations, and institutions’ value, sources of revenue, and foundations for competitiveness, growth, and sustainability lie in – emerge directly from intangible assets.
  • all forms of intangible assets and there intellectual property cousins, are now integral to every transaction outcome

This economic fact should be horizonally instructive to…professional services firms, especially when considered in the context of a fiduciary obligation to secure familiarity with Sharia interpretations (ala culture, practices) of Islamic (intellectual property) law because…

  • it will lead to important insights and strategic guides for negotiating transactions when intangible asset development, value, and ownership are in play along with the desire to achieve a win-win outcome.

Fortunately, there are new – current academic (legal) research papers that…shed much needed light on both the fundamentals and intricacies of Sharia interpretations – influence on Islamic (intellectual property) law matters.

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’.

Close study of these papers can serve as prudent guides for the parties to business negotiations and transactions to…minimize reckless (biased) assumptions and/or making irreversible errors insofar as introducing, proposing, and negotiating a transaction without wholly subordinating western IP law. 

An especially beneficial aspect to Beltrametti’s work…is that she does not intend for it to serve 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 are reminded this is my intent here as well. 

That said, in my judgment, professional services firms that take strategic initiatives to acquire even a rudimentary understanding of and respect for Islamic (Sharia) law, and

Doing so, of course, is frequently recognized – interpreted as a respectful and professionally courteous gesture – prelude to, in this instance…(a.) attracting – engaging prospective business clients representing the Islamic faith, and (b.) negotiating and executing transactions within global Islamic business communities, e.g.,

  • a religions’ relevance and application to negotiating and executing transactions in which intangible assets are in play.
  • can become a practice area skill set that has ‘cross over’ relevance to other practice areas which firms can correctly promote – market in the context of being an ‘early adopter’ which in turn, is influential insofar asa firm’s competitiveness, reputation, goodwill, and foresight.

Among other important aspects of Professor Beltrametti’s work regarding Islamic intellectual property law…is that, by her admission, it remains in early stages of interpretation and promulgation in terms of application to modernity.  That said, it is certainly a very good start!

  • even though, as Professor Beltrametti appropriately points out that IP rights, per se, are not regulated by Islamic law and/or its jurisprudence.

Some of the questions – issues Professor Beltrametti, and I, still pose, are…whether and how the principles of Islamic law can be practiced in a manner that provide for IP rights enforcements and safeguards?

  • Please Note: Professor Beltrametti does this initially by presenting Sharia’s main sources, i.e., the (a.) Qur’an, and (b.) the Sunna, Ijma and Qiyas. 
  • I should note also that the term Sharia, as applied throughout Beltametti’s work, and my post now, is synonymous with Islamic law.

It remains admirable for professional service firms to…understand the distinctions and practicalities of Islamic (IP) law and the various Sharia influences and interpretations. That’s because doing so, can lead to respectful insights and likely collaborations and transactions going forward.

Unfortunately, Sharia law is often conceived and portrayed through… extremist visuals – contexts, i.e., Al Quaeda, ISIS, DASH, Taliban, etc., which reasonable persons recognize are not wholly representative of Islam.

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. 

To this, Professor Beltrametti offers an intriguing and somewhat surprising characterization, i.e.,

  • perhaps it’s not much of a stretch that such measured flexibility and elasticity canbe exploited by all parties to a negotiation – transaction that indeed reflects 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.

My proposition here is to challenge conventional perceptions – arguments…that Islamic law and (conventional, western) intellectual property law and practice cannot coexist…

  • that is not to suggest one religion is-will be superior – subordinate to the other.
  • instead, it simply implies there are strategies to respectfully ameliorate – converge both.
  • Sharia-based (legal, intellectual property rights) system is flexible and adaptable, characteristics which are not often associated!

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 are various latitudes that 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 some Islam dominant countries are variously unenforced is due…at least in part, to inherent complexities embedded in the collective nature and community values of Islamic culture…

  • which presents various challenges insofar as introducing (conventional) IP concepts of propriety, individual ownership, control, and remuneration emanating from 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 Islam dominant 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-may be entitled to recoup their initial investment and beyond…providing that amount is deemed fair and balanced relative to the time and effort exerted to produce same.

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, according to 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 agreement 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 which is a 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, perhaps accommodate 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 of 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 nor widespread.

What influences people-cultures to interpret this perspective-belief...in that manner? It likely produces reluctance – hesitancy to fully adopt (accept) broader recognition of conventional intellectual property rights in some sectors of Islam.

That is, a percentage of nations – communities with substantial observance – adherence to the Islamic faith...support for conventional IP has not been widespread.

This is due, in part, to the belief – reality…that large percentages of innovation that emerge from IP and proprietary intangible assets, i.e., intellectual, structural capital particularly, and advanced technologies, etc., originate predominantly in the West, and not from Islamic sources. 

Michael D. Moberly April 22, 2019 [email protected] St. Louis ‘Business Intangible Asset Blog’ since May 2006, 650+ posts published, read in 137+ countries, ‘where attention span, intangible assets, and solutions converge’.

Readers are invited to explore other published blog posts, position papers, video, and books published by Mr. Moberly at https://kpstrat.com/bloge



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