Islam, Intellectual Property, and Free Culture

This article was written with the objective of understanding how traditional Islamic law would or does regard intellectual property, with the emphasis here and there (as relevant) to open culture and free software. I am not a lawyer, and this article was written with the support of some beer (though not too many); my claims to authority, weak as they may be, are living in Egypt for some 17 or 18 years and having played a solid role in creating the Egyptian Linux Users Group. I am open to discussion (that’s what the comments are for!) and will revise this article when time and reasons avail themselves.

The purpose of this essay is to examine traditional Islamic attitudes towards intellectual property and to contrast these with the notions of free culture. We are specifically looking for areas of agreement or discord.

The general answer to whether there is the imperative in Islam to abide by copyrights seems to be a qualified yes.

In many cases Islam lacks a concrete set of rules like a formal nation might have with a set of institutionalized laws. The body of legislation in Islam is derived by source from three primary (other sources exist, such as the unanimity of the prophet’s disciples and in some cases public interest, but they are secondary to the sources listed here) areas.

Firstly, the legislation mandated by the Prophet Mohammed a millennium and a half ago, which is considered incontrovertible canon in most cases (with notable exceptions, such as the Shia reverence for Ali). This derives directly from the holy book of Islam, the Koran.

Secondly, interpretation of the Prophet’s sayings and life, or what is known as Sunna, or roughly the teachings learnt from how the prophet led his life.

Thirdly, the unanimity of Mohamed’s disciples on a particular issue, called ijma’.

There are several schools of interpretation with varying degrees of credibility, authenticity, and adherents.

In some cases, legislative attitudes are defined by analogy to divine principles; this seems to be most appropriate in legislative scenarios presenting situations which, due to the advances of culture, society, and technology were not envisioned 1500 years ago. In many instances the easiest source for derivation of legislative attitudes towards intellectual property is this one, the analogy path. The cost, however, can be ambiguity and non-authoritativeness, since conflicting analogies are not that difficult to derive given a sufficiently large body of reference material such as the Koran presents.

Generally, the notion of intellectual property has been under-examined in the context of Islamic legislative attitudes. Most attempts to derive an interpretation of the Koran and Sunna relevant to intellectual property legislation have little solid previous interpretation to fall back on.

The Grand Mufti of the Kingdom of Saudi Arabia had issued a fatwa declaring software piracy in violation of Islam on the ground that Muslims are duty bound to honor agreements (here meaning, for example, the EULA of a software package) and also more general prohibitions of theft. Neither justification tackles the core question of whether intellectual property is to be treated the same as other assets and bound by structurally identical contracts.

In many cases contemporary society provides test cases which are challenging to rule on based on the archaic Sharia and the Sunna, which can lead to rulings by contemporary Islamic scholars that lack the authority and widespread acceptance, and more generally the general solidity of more traditional religious questions. A good example of this is an interpretation of Islamic sharia pertinent to the piracy question, where the Sheikh Muhammad bin Salih Al-‘Uthaimeen has ruled that “whatever is customary among people should rule” with the exception of prohibiting copying for public or private use where the intellectual property title-holder explicitly prohibits this. This is a little more relaxed than many contemporary implementations of default copyright in the West where the lack of a specific copyright notice places the work under legislation prohibiting reproduction by default. This interpreatation should by no means be taken as canonical and wiedely applicable; the solicitation and issuance of fatwas has a low barrier to access and is consequently widely distributed. It is less and less likely for one source of fatwa issuance to resonate with a wide audience and to result from serious and prolonged study today.

There are two degrees of magnitude of prohibition in Islamic jurisprudence. The stronger form is called haraam and is unambiguous. Haraam is derived straight from Koranic prohibitions or from authenticated parts of the sunna where the prohpet has been unambiguous in declaring some subject as haraam.

The milder form of prohibition is called makrouh, translating most effectively as a form on qualified prohibition, or “not permitted, but, well, if you really must and if you have good reasons”.

Much of the body of Islamic jurisprudence represents the society in which the religion arose, and contextualizing modern concepts can be challenging exercises in terms of jurisprudential calls. Intellectual property today is clearly a more material component of an economy than it was a millennium and a half ago; a consequence of this is the relative insophistication of existing Islamic jurisprudential attitudes towards intellectual property.

Most instances where fatwas have been solicited concerning the status of sales of intellectual property have taken a slightly naïve view of intellectual property, equating it with more traditional tangible forms of property and therefore declaring it halal. The question of whether intellectual property may even be equated in that manner with more conventional goods is not tackled.

From this perspective, the prevalent attitudes towards piracy classify it as disallowed since it infringes on the rights of the software or music owner or writer. Drilling down a little in this and recalling an earlier phrase from this article, by infringing on the rights of the owner it is apparent that this refers to benefiting from the copyright owner’s work without compensating them. In essence, a license. If we assume that a license is obtained to benefit from the actual content rather than the medium of distribution, then we seem to have the implication that copying other people’s intellectual property for sale is not prohibited so long as the seller is not consuming the content, and considering that the onus for obtaining a license would then fall on the buyer of the content.

The prohibition on violation of licensing terms is qualified in most opinions. Where purchase of a license is difficult or impossible, the imperative to respect licensing agreements is relaxed. This is applied as flexibly as it is opined, to the extent of often constituting a matter of convenience – if the consumer/user of a software package regards it as expensive, it is relatively common for them to fall back on this exemption, and this low-intensity method of reconciling devoutness with a violation of other people’s property probably explains the rampant piracy rates in the Middle East (though in many cases the cost of software, music, and other forms of content is disproportionately high compared to what people can actually afford).

A further qualification to the prohibition on violation of licensing terms is more interesting. Where the holder of the copyright is perceived to be a member of a nation or group at war with the Islamic Umma, the insistence on respecting the licensing terms is dropped in entirety. Conceptually, this is not far-fetched – that the enemy’s assets be considered fair game in war seems reasonable. To complicate matters, however, the definition of what constitutes a “member of a nation or group at war with the Islamic Umma” can be quite broad. Us and them in the orthodox (and prevalent) Islamic context is very different from the modern Western nation-state model, and in many ways simpler. The Islamic Umma can be understood as the aggregate of Muslims; there is no geographic demarcation. In many ways, this simplistic construct drives how many Muslims understand social cohesion at the macro-level. While modern nation-states are intellectually acknowledged, there is a colloquial tendency to regard them as a collective rather than at an individual country level; a cartoonist in Copenhagen will be perceived more as belonging to the West or to a perceived Christian Umma-equivalent than as a Dane. American aggression in Iraq can (and very often is) therefore considered a war being waged on the Islamic Umma, by way of example, facilitating the moral justification of pirating a Windows XP disc (admittedly a very broad example, the purpose being to demonstrate perhaps by some oversimplification the logic processes driving the attitude towards copyrights). Irrespective of the quality of logic leading up to this copyright stance, it exists.

It is also a common claim that Arabs and Muslims are generally too poor to pay for licenses, making it difficult to adhere to the license. Needing the software to advance their knowledge and skills (in the interests of the Umma perhaps), the users proceed to pirate the content. It is an easy argument to make and it is extremely common.

Generally, Islamic jurisprudence forgives piracy where it is impossible to buy the content and where it is necessary. The principle is clearly well-meaning and, as with so many other things in life, the implementation is where the spirit is sacrificed to the letter.

A general principle in Islamic jurisprudence is the permissibility of anything for which evidence of prohibition cannot be clearly produced from the various sources, the Koran, sunna, etc.

Royalty is a good example of something which as an abstract concept is clearly permissible due to the lack of indicators of prohibition. This is not as trivial an issue as it might appear; basic building blocks considered fundamental in a modern economy can be materially different in an Islamic implementation. To take an example, the charging of interest rates as such is strictly prohibited in Islamic banking (once again an example of following the word of the law and not the spirit, a common workaround to this is simply to charge various forms of administrative fees amounting to the equivalent in interest rates).

Some arguments have been made amongst Islamic scholars that a contract of sale must transfer to the buyer the right to dispose of said item as he or she wishes, including the possibility of resale. However, remembering the rule that that which is not clearly prohibited is permitted, there is nothing in the primary sources for jurisprudential guidance which qualifies a sales transaction in such manner. The consequence of this is that a license may prohibit resale, as is common in the music industry or with much proprietary software such as Microsoft Windows. A discussion on understanding-islam.com tells of examples in the Koran where a sales transaction has been carried out with the buyer disallowed from disposing of the property without damaging the legal position of ownership. This implies a very permissive attitude regarding what types of conditions may be imposed in sales transactions. The implications are quite profound when considered in the context of contemporary licensing practices. For one thing, the flexibility in creating conditions in contracts of sale would present a conceptual defeat to pro-consumer legislation such as the First-sale doctrine. For another, it would mean that a license like the GPL, which imposes conditions on the licensee concerning redistribution of source, would be entirely valid and upholdable.

The distinction is made between the content and the content delivery vehicle. The copyright holder is acknowledged as the owner of the content quite distinctly from the owner of the medium on which the content has been distributed. The clear acknowledgment of intellectual property is made in distinguishing between the right of the content owner and copyright holder on the one hand, and the buyer of the license and owner of the distribution media on the other.

To complicate matters somewhat, a trusted and recurrent hadith in discussions concerning copyright and intellectual property relates that “Wisdom is the lost property of a believer, it is his, wherever he may find it.” The more likely interpretation defeats most forms of ownership of intellectual property. A more pragmatic interpretation attempts to interpret the hadith to mean that the Muslim should seek diverse sources of knowledge and should concern themselves with the wisdom and not its source. The first interpretation almost reads like the maxim that information wants to be free and therefore is congruent with the ideals of free culture in its various incarnations, software and other. The second interpretation encourages Muslims to judge ideas based on their merit alone; successful open source is also meritocratic. One of the basic freedoms associated with open source is the freedom to use for any purpose, which dovetails nicely again with the second interpretation in the sense that together, one may visualize a culture where intellectual property is more pure, source and purpose-agnostic. In one reaction to questions concerning the interpretation of this hadith the former President of the Islamic Society of North America has asserted that:

It is correct that the knowledge is a common property. But it does not mean that people cannot sell books or own books. It does not mean that people can go and steal books or take over other people’s labs and libraries. It means that all people should be free to learn. No one group should have monopoly on knowledge.

Here we see again the distinction between the knowledge and the container it is transferred in, the media – in this case, the book. Again, this interpretation resonates very strongly with the tenets of open culture and also with open culture colloquialisms like information wants to be free; the knowledge is a common property, and still the actual media business is preserved in the indication that the means of production and distribution of intellectual property should be respected. In the scope of this hadith and this interpretation of the hadith, the question of how the creator should be compensated for the effort is unaddressed. As previously indicated though, royalties are permitted; with the indication that royalties are permitted but that knowledge is common property though, a reconciling fatwa is needed in this matter. This apparent contradiction isn’t unusual; in a social order (as Islam is, transcending merely being a religion) where the central and most authoritative body of legislation was defined fifteen centuries ago, it is understandable that attempts to reconcile modern concepts will result in ambiguity and contradiction. Exacerbating the matter is the de facto decentralization, the almost grass-roots nature of fatwa issuance – it is common-place for a Muslim to ask his local preacher for an opinion on a certain matter, and opinions will differ. Intellectual property rights is not a subject lightly understood, and an imam might issue a fatwa narrowly addressing the question asked of him without accounting for implications on the body of legislation.

Conclusions

• The first conclusion is that, when looking for a clear position in Islamic jurisprudence towards intellectual property concepts such as copyrights, royalties, licensing agreements etc., it is difficult to derive conclusions. This is a conclusion in itself and is perhaps the most profound. Contemporary intellectual property issues were certainly not addressed fifteen centuries ago; today, Islamic legislative consultation is too decentralized to create authoritative legislation. Related, what opinions have been issued in this matter have to date been superficial enough to contain serious inconsistencies.
• There is a strong tendency towards the public domain in traditional Islamic views of intellectual property. It is not an absolute one though.
• There is a good deal of flexibility in the matter of what may and what may not go into a contract of sale in terms of conditions in the Islamic view. This works in favor of open culture and open source as much as it works in favor of the traditional intellectual property business.
• Islam takes a meritocratic view to knowledge, which is compatible with many of the fundamental mechanisms which stand behind the success of open source model, as a manifestation of open culture.
• To stress the superficiality of current efforts, many areas concerning intellectual property legislation which are highly relevant today do not appear to have been considered in any way from the Islamic perspective. This includes topics such as the patentability of algorithms and of life, the issue of copyright terms and transferability, etc

Source: http://sancairodicopenhagen.com/joe/islam_intellectual_property_free_culture_open_source