[Ecommerce] Muslism society and IP in Jakarta Post

[Manon Ress]

Thanks to Min Yen, Consumers International Asia Pacific office for
pointer to this very interesting article:

Ulema edict on IPR could be misleading
Opinion and Editorial - August 09, 2005
http://www.thejakartapost.com/yesterdaydetail.asp?fileid=20050809.E02

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.


************************************************
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

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