Ulema edict on IPR could be misleading

Ulema edict on IPR could be misleading

Mohamad Mova Al 'Afghani, Jakarta

One important matter contained within fatwas (edicts) recently
issued Indonesian Ulemas Council (MUI) is the judgment that
Intellectual Property (IP) violations are haram. This conclusion
means that utilizing IP without a right is a violation of God's
prescribed law and thus a sinful thing to do for a Muslim. MUI's
argument is that Islamic law protects the rights and property of
individuals and that Intellectual Property is also a form of
property that is protected under Islamic law.

This is exactly the point at which MUI's argument could be
mistaken.

Prior to issuing such an edict, the MUI should have
investigated whether the concept of Intellectual Property is in
fact a sui generis (unique, peculiar) Islamic concept. This is
done by finding justifications in primary sources of Islamic law,
which are the Koranic verses and hadith. It is certain that the
MUI will find abundant verses and hadith stating that an
individual's property must be protected.

However, it is quite certain that they will hardly find any
verses or hadith that states that knowledge or ideas are
protected under Islamic law. What they will surely find in those
sources is that all knowledge belongs to God and that knowledge
seeking and knowledge sharing is an obligation for all Muslims.

Under old Islamic customs there was a system of knowledge
acknowledgement known as ijaza (certificate). If a person is to
teach, quote or reproduce a certain knowledge, then he or she
must obtain an ijaza from the author. This system of a chain of
authority is designed to ensure authenticity in the passing of
knowledge from one person to another, and also as a form of
respect for authors.

Certainly, this kind of system was not created for financial
benefit but rather for the sanctity of science. It only protects
the moral right of an author to a certain degree. The knowledge
itself belongs to God, not to any individual. The ijaza system
certainly is not a form of copyright.

Copyright was a response to Gutenberg's printing revolution of
the European Middle Ages. Conditions at that time required legal
protection for authors, as book copying became easier due to the
printing press. Prior to the invention of the printing machine,
no economic right for authorship was ever granted specifically by
any body of law. Authors were only granted the moral right for
having created books.

After copyright, the concept that intellectual products could
be proprietarized expanded into patent, which occurred during the
industrial revolution. Since then, the concept of property has
extended into intellectual products that consequently entail
legal protection as normally granted to tangible property. By
looking at the history of copyright and patent, it is conclusive
that Intellectual Property is a concept developed in the West. It
is thus not a sui generis Islamic legal concept.

Whether or not an idea expression can be proprietarized under
Islamic law is still not certain. What the MUI has done through
its fatwa is to make an analogy with the protection of tangible
property available in Islam and further extending and applying it
to intangible property.

In relation to whether IP protection serves our society's best
interests, the answer is quite clear. IP protection, whether
copyright or patent, has sparked much abuse. The emerging trend
today is aimed towards limiting IP protection, as removing it
entirely would not be possible for the time being. International
moves through the draft Access to Knowledge Treaty purport to
reduce and limit the length of IP protection.

"Copyleft" licenses are meant to get around ordinary copyright
licenses in disseminating intellectual products. It would be in
the interests of Islamic society to limit the concept of
Intellectual Property, if not completely abolish it in the
future. The World Intellectual Property Organization (WIPO) is
currently putting together a "development agenda" that will shift
its emphasis from "protection" to "knowledge access". Extensive
IP protection is only in the interests of big corporations and
advanced nations.

The language that the MUI used in its edict is also ambiguous
as it determines the haram nature of a conduct if it "violates" a
regulation. A violation of IP rights is determined by a verdict
of a tribunal.

The MUI is silent in relation to which law and which tribunal
can judge violation to be haram. IP protection in each country is
different. Does the MUI refer to international law, Arabic law or
Indonesian law?

If the MUI refers to Indonesian positive law, there are plenty
of things under our law that are harmful to the transfer and
promotion of knowledge. The copyright law for example, requires
that relinquishment of rights needs to be conducted in a
traditional written form. Moreover, the existing copyright law
does not support transfer of knowledge. DVD/CD replication in
libraries for archival purposes could be deemed as an
infringement of copyright. The law also does not specifically
allow teachers to copy their class materials for students.

The MUI should not link the concept of haram with violations
of positive law. Aligning religious law with positive law will
have severe consequences. Positive law is very dynamic, it may
change from time to time. If the concept of haram is attached to
positive law, then the state of haram may also change from time
to time.

To summarize, the MUI's fatwa that supports IP could be
misleading and is counter productive for the following reasons.

First, "Intellectual Property" is a not a sui generis Islamic
legal concept.

Second, Islamic values favor the promotion, transfer and
dissemination of knowledge, as compared to treating it as
property.

Third, it is not in the best interests of Islamic society to
extensively support IP protection. And fourth, aligning religious
law with positive law will reduce the transcendentality of
religious values, making it vulnerable to political abuse.

The MUI's fatwas are not binding, both in terms of religious
or positive law. However, they have great psychological influence
as the majority of Indonesian Sunni Muslims will tend to adhere
to it.

Muslim society is currently being left out in terms of
knowledge and scientific development. What Islamic legal scholars
must do in responding to this situation is to revolutionize
Islamic law so as to enlighten and liberate Muslim society from
its dark ages, by limiting and reducing protection granted under
the concept of Intellectual Property.

If the MUI does not wish to revolutionize Islamic law, then
it should at least refrain from addressing the Intellectual
Property issue. Importing a capitalistic legal concept and
stamping God's word on it will not bring any benefits to society.
Wallahu'alam.

The writer (movanet@yahoo.com) is a lawyer and a lecturer.