The concept of protecting one's intellectual creations and works has existed for a long time, even before the term ‘intellectual property’ was coined. In the absence of specific laws, these rights were protected under general principles of law, such as theft or unfair competition. Similarly, Islamic Shari'a, despite not specifically addressing issues related to trademarks, patents, designs, and copyrights, offers protection to these concepts as a personal asset.
To ascertain the impact of Shari’a on modern day IP laws, it is important to first understand the meaning and background of the word ‘Shari’a’. Islamic law, or Shari’a, is based on the teachings of the Quran (the Islamic holy book) and the Sunnah (teachings of the holy Prophet), and its interpretation by Muslim scholars through consensus and inference. These four sources serve as the foundation for Islamic law and guide the understanding and application of Islamic principles, including those related to personal property and IP. In Islamic law, the following five categories determine the level of obligation or prohibition associated with a particular action:
Mandatory (wajib) actions are obligations that must be fulfilled, and failure to perform them is considered sinful;
Recommended (mustahabb) actions are encouraged but not mandatory and performing them earns reward;
Permitted (mubah) actions are those that are neither encouraged nor discouraged and may be performed or avoided without consequence;
Disliked (makruh) actions are discouraged but not sinful and avoiding them is better but not mandatory; and
Banned (haram) actions are considered sinful and strictly prohibited in Islamic law.
Examples from the primary sources of Islamic law which have relevance to IP are provided as reference:
"Do not knowingly devour a portion of the property of others wrongfully". Qur'an at 2:188
"It is forbidden to sell the fruit on the trees before it is ripe, because the buyer does not know if all the fruit will ripen or what its weight will be". Qur'an at 5:90
"Nobody has ever eaten a better meal than that which one has earned by working with one's own hands". Sahih Bukhari - Vol. 3, Book 34 at No. 286
“Muslims must abide by their agreements, except an agreement that make Haram (unlawful) what is Halal (lawful) or make Halal what was Haram.” At-Tirmidhi, Hadith No. 1272
Taking a broader perspective and the essence of the above stipulations, it becomes clear that owning and enforcing IP rights is not forbidden in Islam and its violation is impermissible.
In addition, there are several legal opinions issued by Islamic scholars which specifically validate the registration and enforcement of IP rights. These include opinions rendered by the International Islamic Fiqh Academy, Mr. Ali Ahmed Mashael of the Dubai Department of Islamic Affairs and Charitable Activities, and the Al Azhar, in Egypt. These fatwas acknowledge that IP is a form of property and, as such, it is protected by Islamic law.
The protection of one's property and the prohibition of theft and fraud are fundamental principles in Islamic law and these principles apply to IP as well. Fatwas have also emphasised the importance of IP in promoting innovation, creativity and economic growth, which are all valued in Islamic tradition. Thus, these fatwas support the view that the registration and enforcement of IP rights are consistent with Islamic principles.
The Islamic states in the Middle East have their own codified laws regarding IP which have been drafted in accordance with international conventions in a way that means they do not conflict with Shari’a principles. These laws serve as the basis for protecting IP rights, ensuring that they are recognised and respected within these countries.
Despite the Middle Eastern IP laws being drafted in accordance with international conventions and treaties to which these countries are signatory to, the principles of morality, modesty, and prohibition in Islamic Shari'a can impact the registration and enforcement of IP rights. In the Middle East, trademarks, patents, and designs related to pornography, indecent language, alcohol, narcotics, pork, sex toys, and gambling are generally not registerable or enforceable and it can be challenging for owners of such brands to register and enforce their IP rights due to these cultural restrictions.
This can also apply to foreign applicants who fail to seek the advice of a local lawyer regarding the registrability of their intended trademark, as the mark might have a negative connotation in the local language or include an offensive image. Additionally, transferring ownership, licensing and franchising of unregistered IP rights is problematic as it is not permitted in most Middle Eastern countries.
Brand owners looking to register their intellectual property rights in the Middle East are advised to seek the counsel of local legal experts. They should also be cautious in choosing trademarks that do not violate moral standards or contain inappropriate images or graphics. Companies operating in industries such as alcohol, pork, pornography and gambling should also consult with legal experts before entering the Middle Eastern market.
