By Jamaal al-Deen Zarabozo
Obviously, there are works other than these three available but these three references are comprehensive in the sense that they cover both sides of the issue in detail. Again, the goal here is to be brief and therefore the interested individual may consult the following three works:
Bakr Abu Zaid,
Fiqh al-Nawaazil (Beirut: Muassasah al-Risaalah, 1996), volume 2. This work is very informative in that it describes precedents set by early hadith scholars in both protecting works and receiving wages for works.
Hussain al-Shahraani,
Huqooq al-Ikhtiraa’ wa al-Taleef fi al-Fiqh al-Islaami (Riyadh: Dar Taibah, 2004). This is the author’s master thesis presented to Muhammad ibn Saud Islamic University; hence, it is inclusive of all sides of the issue.
Majallah Majma’ al-Fiqh al-Islaami, (Session 5, 1988), vol. 3, pp. 2267-2581. This includes a series of articles and voiced opinions, some justifying copyright and some arguing that it is not justified. Hence, it is a valuable reference.
Basically, there are three opinions among the scholars concerning the question of copyrights. One opinion says that such a practice is an Islamically acceptable practice and that the implications of copyright laws are to be respected by Muslims. This opinion is definitely the opinion of the majority of the scholars who have discussed this issue in detail. This is, for example, the view of Bakr Abu Zaid, Taqi al-din Usmani, Abdullah ibn Manee’, Wahbah al-Zuhaili, ibn Uthaimeen, Salmaan al-Audah and numerous others. In addition, it is the view upheld by the Majma al-Fiqhi of the OIC and the Standing Committee of Religious Scholars of Saudi Arabia (Abdul-Azeez ibn Baaz, Abdul-Azeez Aali-Shaikh, Saalih al-Fauzaan and Bakr Abu Zaid). The Majma al-Fiqhi (of the OIC) came to the following conclusion: “Writing or inventing something is a private write that belongs to the individual. In today’s contemporary world’s practices, it actually has a material value to it that people can make money from. These rights are to be respected from a Shareeah perspective and it is impermissible to transgress them” (Majallah Majma al-Fiqh al-Islaami, volume no. 5, part 3, p. 2267.)
Those who oppose the concept of copyright include Muhammad Shafee (the former mufti of Pakistan), Abdul-Razzaaq Afeefi and Muhammad Mukhtaar al-Shinqeeti.
The third opinion is that copyright laws and principles are to be upheld and respected except with regard to material related to the religion. This is the view of Abdullah ibn Bayyah and Muhammad Abdul-Lateef al-Furfoor.
Numerous arguments have been given by the scholars in favor of the issue of copyright. It would be well beyond the scope of this response to cover all of the different points. (Al-Shahraani, for example, mentions thirteen points supporting the concept of copyright in Islamic Law.) Therefore, only some of the more important points will be touched upon here.
Thus, for example, The Standing Committee of Religious Scholars of Saudi Arabia was asked about the permissibility of copying software which had been copyrighted (Fatwa #18453). They were also asked if it would make any difference if it were from a Muslim or non-Muslim company. Their response was that it is not permissible to make a copy of a program if its provider prohibits it, unless they explicit permission to do so. They then quoted the hadith of the Prophet,
الْمُسْلِمُونَ عَلَى شُرُوطِهِمْ
“The Muslims must abide by conditions that they lay down.”
[1] (The essence of the argument here is that when a person buys a book or software which is copyrighted, they are essentially agreeing to the conditions of that copyright which is clearly stated on the product that they are purchasing and which is not something new or strange to the purchaser. Hence, the purchaser must fulfill the condition that he has agreed to.) They then quoted the hadith,
لَا يَحِلُّ مَالُ امْرِئٍ إِلَّا بِطِيبِ نَفْسٍ مِنْهُ
“No wealth of a Muslim can be taken except with his approval.”
[2] It does not matter whether the producer of that software were a Muslim or a non-harbi non-Muslim, as the rights of a non-harbi non-Muslim are to be respected like that of a Muslim. The signatories to this fatwa were Abdul-Azeez ibn Baaz, Abdul-Azeez Aali-Shaikh, Saalih al-Fauzaan and Bakr Abu Zaid. In Fatwa #18845, they concluded the same regarding tapes and books.
In addition, some scholars quoted the following hadith from Sahih al-Bukhari,
إِنَّ أَحَقَّ مَا أَخَذْتُمْ عَلَيْهِ أَجْرًا كِتَابُ اللَّهِ
“That which you have the most right to take wages/reward for is the Book of Allah.” This was stated by the Prophet (peace and blessings of Allah be upon him) in response to some Companions who objected to another Companion receiving a sheep as wages for reciting the Quran as an incantation. Further note that the wording used by the Prophet (peace and blessings of Allah be upon him) is both general and unconstrained. This hadith is quoted in response to those who argue that one cannot benefit from religious knowledge in any way and, thus, copyright on books or other material related to the religion is forbidden.
In another hadith, the Prophet (peace and blessings of Allah be upon him) was speaking to a man who had virtually nothing to offer as a marriage dower. The Prophet (peace and blessings of Allah be upon him) finally asked him if he knew any of the Quran. When he answered in the affirmative, the Prophet then said,
قَدْ أَنْكَحْتُكَهَا بِمَا مَعَكَ مِنْ الْقُرْآنِ
“I marry her off to you for what you have of the Quran.” (Recorded by al-Bukhari and Malik.) This demonstrates that this knowledge is a type of wealth and can be treated as such.
When the Prophet (peace and blessings of Allah be upon him) was asked about the best of earnings, he replied,
عَمَلُ الرَّجُلِ بِيَدِهِ وَكُلُّ بَيْعٍ مَبْرُور
“What a person earns by his hand and every honestly executed sale transaction.” (Recorded by Ahmad and others.
[3]) Obviously, the production of a book or a lecture or anything of that sort falls under what a person earns by his hand and is one of the best means by which one can support himself and earn a living.
Ibn Uthaimeen further argues that if the country has accepted the concept of copyright and has made transgressions against copyrights illegal, then one must obey such laws. He stated, “If the country prohibits that, then it is not allowable, as Allah has ordered that those in authority are to be obeyed in any matter that is not disobedience to Allah and this is not disobedience to Allah…” (alLiqaa al Maftoohah, session #178).
Finally, this has become the convention or urf when it comes to dealing with books and other such material, in order to protect the work of the original individual and to distribute that work and to make it available to the public. Such urf or convention, unless it can be proven to violate a clear command of the Quran and Sunnah, has its place in Islamic Law as a basis for law and practice.
A smaller number of arguments are advanced against the practice of copyright. Perhaps the strongest among them are three: (1) there are no texts in the Quran and Sunnah that clearly support this practice; (2) copyright is a form of “concealing knowledge”; (3) no one possesses knowledge from an Islamic perspective and hence copyright must be forbidden. Without going into great detail, each of these arguments shall be responded to.
The first point concerns issues that are not explicitly mentioned in the Quran or Sunnah. Concerning many issues, I have heard numerous people make statements like, “It is not found in the Quran or Sunnah and therefore you cannot do it.” Many times, people who make these statements are quick to point out that they themselves are not scholars. In fact, this is one of the issues that truly distinguishes a scholar from a student of knowledge or lay person. The scholar is able to derive laws based on the general and specific guidance of the Quran and Sunnah. In particular, new issues may arise that are not covered explicitly by the texts of the Quran and Sunnah. The scholar must then derive the proper conclusions in the light of the Quran and Sunnah. The lay person or student of knowledge is many times limited to the clear texts of the Quran and Sunnah, which does not require in-depth knowledge and inquiry. In sum, simply because something is not directly mentioned or alluded to in the texts, it does not necessarily mean that it is either prohibited or permissible. Some further study needs to be done and that requires a scholar who is familiar with the tools and methodology of deriving conclusions from the Quran and Sunnah.
[4]
Second, concerning the issue of whether copyright is a form of “concealing knowledge,” the reality is virtually the exact opposite. Copyright is a means of providing for the means of spreading of knowledge. Without such a law and protection for the work of an individual, whereby he can earn an income via such work, the individual would not have the means and wherewithal to do research. This is especially true in contemporary times where the cost of living can be very great. One certainly cannot expect all individuals to work forty hours—driving a cab or whatever—and then expect to produce quality Islamic material for the remainder of the Ummah to benefit from. There may be some who have been blessed with such great skills by Allah but, in general, that is a very unrealistic and impractical approach to spreading knowledge and producing scholars, which is at a premium in today’s world. Furthermore, even in the past scholars received stipends and support for teaching and producing works. Outside of the Muslim world, obviously, the mechanisms that would support scholars in the Muslim world are simply not present. Hence, other mechanisms must be resorted to.
Third, concerning the claim that no one “owns knowledge” from an Islamic perspective and therefore copyright could not possibly be valid, it must be realized that this is now what copyright is about at all. Copyright provides knowledge and allows people to use such knowledge but it does not allow them to use the knowledge in the same format (by simply copying, for example) or without attributing the works and results to its doer. Furthermore, if one is using exactly what the originator produced, then one is obliged to pay the originator for what he has produced.
Since there is nothing specific about the concept of copyright in the Quran and the Sunnah nor is it something directly analogous to a principle of any text, the issue of copyright must be seen in the light of the bigger picture of the overall goals of the Shareeah. It is well-established among the scholars that the five major goals of the Shareeah are the preservation of religion, life, familial relations, mental capacity and wealth. Again, when seen in the larger picture, copyright aids in the protection of religion (by preserving knowledge, encouraging research, allowing for the publication of books and lectures and so on) as well as wealth (what a person or company invested in a work is protected and he has the right to demand his remuneration for his work).
Copyright is not about harming other Muslims or preventing them from any knowledge but it is about supporting the infrastructure of developing Islamic research and Islamic products, making them more available to all and more beneficial to all. The goal is that no one profits unfairly from exploiting the work that others have done and concerning which they may need some remuneration.Finally, if a person is well-off and decides to forego any financial benefit from his work, then this must be considered a very charitable act on his part and it is hoped that he would be rewarded greatly by Allah. Similarly, if a publisher has the means to do something of that nature or if someone can be found to cover all of the costs, that would be great and wonderful. However, such commendable acts cannot be forced on an individual if the Shareeah accepts such a practice as copyright law
[1] It should be noted that this hadith that they quote is recorded by Abu Dawood and al-Haakim. According to al-Albaani, it is authentic. See al-Albaani, Saheeh al-Jaami al-Sagheer #6714.
[2] This hadith they quote is recorded by Abu Dawood. According to al-Albaani, it is authentic. See al-Albaani, Saheeh al-Jaami al-Sagheer #7662.
[3] According to al-Albaani it is authentic while according to al-Arnaaoot, et al. it is a good hadith due to supporting evidence. See, respectively, Muhammad Naasir al-Deen al-Albaani, Saheeh al-Jaami al-Sagheer wa Ziyaadatuh (Beirut: al-Maktab al-Islaami, 1988), vol. 1, hadith #1033 and Shuaib al-Arnaaoot, et al., Musnad al-Imaam Ahmad (Beirut: Muassasah al-Risaalah, 1999), vol. 28, hadith #17265, pp. 502-503.
[4] This author realizes that even some scholars have made this type of statement in reference to copyright. However, it will be argued later that copyright is well within and consistent with what are known as the maqaasid or the general overall goals of the Shareeah.
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