Copyright According to Shariah
By Mufti Taqi Usmani
|Q.) Can you please explain the Islamic injunctions about "copyright",
especially about the copyright on computer software? The questions are:
(i) Can we
register a book under the Copyright Act which bars the people from publishing that book
without permission of the copyright holder?
(ii) If something is registered under the law of copyright, should we abide by the
restrictions imposed by that law?
(iii) Can a copyright holder sell his right of publishing to another person for a
A.) The question of "copyright" is related to a wider concept,
generally known as the concept of "intellectual property". In previous days the
concept of ownership was confined to those tangible commodities only which can be
perceived through our five senses. But the speedy progress in the means of communication
gave birth to the new concept of "intellectual property" which extended the
concept of ownership to some intangible objects also. The theory of "intellectual
property" contemplates that whoever applies his mental labor to invent something is
the owner of the fruits of his labor.
If a person has invented a certain instrument, he does not own the instrument only, but
he also owns the formula he has used for the first time to invent it. Therefore, nobody
can use that formula without his permission. Similarly, if a person has written a book, he
is the exclusive owner of the right to publish it, and nobody has any right to publish
that book without his permission. This right of an author or an inventor is termed as his
"intellectual property". It is also implied in this theory that the owner of
such rights can sell them to others like any other tangible objects. The law of
"copyright" has come into existence in order to secure such rights and to give
legal protection to this kind of property.
It is obvious that the concept of intellectual property on which the law of copyright
is based is a new phenomenon created by the rapid progress of industry and the means of
communication, therefore, this concept is not expressly mentioned in the Holy Qur'an or in
the Sunnah of the Holy Prophet, Sall-Allahu alayhi wa sallam.
The acceptability or otherwise of such new concept which are not clearly mentioned in
the original resources of Islamic jurisprudence can only be inferred from the general
principles laid down by the Shariah. As the views of the jurists may differ while applying
these principles to the new situations, there is always a wide scope of difference of
opinion in such cases. The question of "intellectual property" has also been a
subject of discussion among the contemporary Muslim scholars of Shariah whose opinions are
different about its acceptability in Shariah.
A group of contemporary scholars does not approve the concept of "intellectual
property". According to them the concept of ownership in Shariah is confined to the
tangible objects only. They contend that there is no precedent in the Holy Qur'an, in
Sunnah or in the juristic views of the Muslim jurists where an intangible object has been
subjected to private ownership or to sale and purchase. They further argue that
"knowledge" in Islam is not the property of an individual, nor can he prevent
others from acquiring knowledge, whereas the concept of "intellectual property"
leads to monopoly of some individuals over knowledge, which can never be accepted by
On the other hand, some contemporary scholars take the concept of "intellectual
property" as acceptable in Shariah. They say that there is no express provision in
the Holy Qur'an or in the Sunnah which restricts the ownership to the tangible objects
There are several intangible rights accepted and maintained by the Shariah, and there
are several instances where such intangible rights have been transferred to others for
some monetary considerations.
They contend that the concept of "intellectual property" does in no way
restrict the scope of knowledge, because the law of "copyright" does not prevent
a person from reading a book or from availing of a new invention for his individual
benefit. On the contrary, the law of "copyright" prevents a person from the wide
commercial use of an object on the ground that the person who has invented it by his
mental labor is more entitled to its commercial benefits, and any other person should not
be allowed to reap the monetary fruits of the former's labor without his permission. The
author of a book who has worked day and night to write a book is obviously the best person
who deserves its publication for commercial purposes. If every other person is allowed to
publish the book without the author's permission, it will certainly violate the rights of
the author, and the law of copyright protects him from such violation of his rights.
Both of these views have their own arguments. I have analyzed the arguments of both
sides in my Arabic treatise "Bai-ul-Huqooq" and have preferred the second view
over the first, meaning thereby that a book can be registered under the Copyright Act, and
the right of its publication can also be transferred to some other person for a monetary
This is an answer to your question no. (i) and no. (iii). Coming to the question no.
(ii), I would like to add that if the law of copyright in a country prevents its citizens
from publishing a book without the permission of a copyright holder, all the citizens must
abide by this legal restriction. The reasons are manifold.
Firstly, it violates the right of the copyright holder which is, affirmed by the
Shariah principles also according to the preferable view, as mentioned earlier.
Secondly, I have mentioned that the views of the contemporary scholars are different on
the concept of "intellectual property" and none of them is in clear
contravention of the injunctions of Islam as laid down in the Holy Qur'an and Sunnah. In
such situations, an Islamic state can prefer one view on the other, and if it does so by a
specific legislation, its decision is binding even on those scholars who have opposite
view. It is an accepted position in the Islamic jurisprudence that the legislation of an
Islamic state resolves the juristic dispute in a manner not expressly mentioned in the
Holy Qur'an or in the Sunnah. Therefore, if an Islamic state promulgates a law in favor of
the concept of "intellectual property" without violating any provision of the
Holy Qur'an and Sunnah, the same will be binding on all its citizens. Those who have an
opposite view can express their standpoint as an academic discussion, but they cannot
violate the law in their practice.
Thirdly, even if the government is not a pure Islamic government, every citizen enters
into an express or a tacit agreement with it to the effect that he will abide by its laws
in so far as they do not compel him to anything which is not permissible in Shariah.
Therefore, if the law requires a citizen to refrain from an act which was otherwise
permissible (not mandatory) in Shariah he must refrain from it.
Even those scholars who do not accept the concept of "intellectual property"
do not hold that is mandatory requirement of Shariah to violate the rights recognized by
this concept. Their view is that it is permissible for a person to publish a book without
its author's permission. Therefore, if the law prevents them from this
"permissible" act, they should refrain from it as their agreement of citizenship
requires them to do so.
Therefore, it is necessary for every citizen to abide by the law of copyright unless it
compels a person to do an impermissible act, or to refrain him from a mandatory act under