Copyright in Islamic Law

by Mohamed Ali Ahdash

Overview

Copyright in Islamic Law is the first work in English to discuss systematically the ideas of intellectual property and copyright from an Islamic perspective. In so doing, the author, Dr Mohamed Ahdash, adopts the discipline of usul al-fiqh (principles of Islamic jurisprudence) to see if key terms associated with one's legal rights—such as the right to ownership (milkiyya), wealth (mal) and utility (manfa'a)—can be applied to copyright. Dr Ahdash then seeks evidence for copyright in the primary sources of Islamic law—the Qur'an and the Hadith—before looking at how the secondary sources of analogy (qiyas), public interest (maslaha), custom ('urf) and legal maxims (qawa'id fiqhiyya) can be applied to copyright. The result of this study is a framework wherein the concept of copyright is defined and understood according to Sharia law. This gives a consistent approach from which specific legal rulings can be derived. Copyright in Islamic Law is both a ground-breaking study in Shari'a law and a valuable contribution to the ongoing debates on copyright in general.

Product Details

ISBN-13:	9781903682913
Publisher:	Islamic Texts Society
Publication date:	09/01/2016
Edition description:	None
Pages:	300
Product dimensions:	6.00(w) x 8.90(h) x 0.70(d)

About the Author

Dr Mohamed Ali Ahdash is a lawyer and an expert in Islamic law.

Read an Excerpt

Since copyright has been located within the broader Islamic framework of right, ownership and wealth, as stated before, it can be viewed within the context of honesty. The primary sources contain many unequivocal statements about the importance of honesty or keeping a trust (amana).
   The main Qur'anic verse in relation to trust is: 'God commands that you render back trusts to those to whom they are due; and when you judge between man and man, judge with justice.' Tabari (d. 310/922) stated that the verse was revealed when the Prophet took the keys of the Ka'ba from its custodian 'Uthman b. Talha (d. 41/661). The verse commanded him to return the keys, which the Prophet then duly did. Although the verse came in response to the specific issue of the keys of the Ka'ba, its actual wording is general, without any wording therein implying that its meaning is restricted. A commonly held position of Islamic jurisprudence is that a text should be interpreted and determined by its comprehensive wording and not by the occasions of its revelations (asbab al-nuzul). Therefore Razi is correct in confirming that the occasion of the revelation of this verse should not restrict its application; and that God instructs the believers to honour all of their responsibilities, whether they are religious or worldly. In addition, the general applicability of this verse is supported by the scholarly consensus (ijma')—one of the main sources of the Law—that stipulates that the command in the verse is to return trusts to their owners, whether they are righteous or sinful. The reaching of scholarly consensus removes any doubt about the broad interpretation of the verse or its continuous applicability.
   In fact, the principle of honesty occupies a significant position in the Law and is emphasised in many verses of the Qur'an and numerous hadiths. For example, one verse praises the Prophet Moses by saying: 'Truly, the best of men for you to employ is the man who is strong, trustworthy.' A further verse praises believers who 'faith-fully observe their trusts and their covenants', and another verse says: 'God does not love the treacherous.' Indeed, the believers are exhorted: 'O you that believe, betray not the trust of God and the Messenger, nor misappropriate knowingly things entrusted to you.'

Table of Contents

Acknowledgements vii

Abbreviations ix

Preface xi

Introduction xvii

The General Characteristics of Copyright xvii

Copyright as a Modern Form of the Traditional Method of Conveying Knowledge xx

A Summary of Prominent Modern Views on Copyright in Islamic Law xxii

Chapter 1 Classification of Right in Islamic Law

Defining 'Right' 1

Definition of Right with Reference to Exclusivity 4

Definition of Right with Reference to Interest 6

Definition of Right with Reference to Exclusivity and Interest 7

The Linguistic Approach 8

Classifications of Rights in Islamic Law 10

Conclusion 19

Chapter 2 Classification of Terms Related to Right 24

Ownership 24

Wealth 31

Utility 37

Conclusion 41

Chapter 3 Evidence For Copyright in the Primary Sources 47

The Divine Command to Be Honest 49

The Divine Command to Be Just 52

The Divine Command to Give People their Due 54

The Divine Command to Respect People's Property 55

The Prohibition of Falsely Claiming Authorship 56

Possession Entails Ownership 58

The Right to the Fruits of One's Labour 59

Risk Bequeaths Benefit 60

The Duty not to Cause Enmity 61

Chapter 4 Evidence For Copyright in the Secondary Sources 66

Evidence for Copyright in Legal Analogy 66

Evidence for Copyright in Public Interest 77

Evidence for Copyright in Custom 80

Evidence for Copyright in the Legal Maxims 83

Chapter 5 Conditions for the Recognition of Copyright in Islamic Law 96

Legality 96

The Work Must Be Original 99

Consideration of Public Interest 101

Duration 107

Chapter 6 Objections Against Copyright and Responses to Them 115

Conclusion 137

Bibliography 139

Index 151