in category Fiqh (Jurisprudence)

What is the Islamic ruling on trademarks, patents and copyrights?

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To further the profits of a small elite, democracy has privatized knowledge, through patency laws as the result of Intellectual Property Rights (IPR), allowing profiteering on a grand scale.

The discussion on Intellectual Property Rights arose after the Industrial Revolution. After living in the shadow of the world's leading nation, the Khilafah, for centuries and lost in its Dark Ages, Europe was making advances in science and technology built on capital pillaged from colonisation of the Americas.

As with freedom of ownership, the knowledge for inventions became "owned." The issue was highlighted after a scientific exhibition in Vienna in 1873, in which many potential exhibitors withdrew because they were worried their inventions would be copied. Democracy decided to protect its sponsors and now jealously protects the intellectual activity of these companies at arriving at that idea or invention. It secures the company the right to control access to the invention and prevent others from using the invention. Therefore, no-one can use the invention and improve on it, taking science forward. Rather they have to re-design and re-invent from scratch.

Patents on pharmaceutical products and processes provide drug companies with monopolies over the production of medicines, allowing them to fix prices at high rates to maximise profits. The WTO-TRIPS (Trade Related Intellectual Property Rights) Agreement is used as a basis for enforcing patents. The cosignatory nations are obliged to implement high standards of intellectual property protection, including the minimum 20-year protection for patent rights, effectively eliminating competition from local companies and allowing for inflated prices especially of products like medicines putting them beyond the reach of most patients in developing countries. Life-saving drugs now cost thousands of dollars whilst most on the planet do not even earn a thousand dollars in an entire year. And drugs related to diseases of wealth such as obesity, Type II Diabetes, took precedence over diseases of poverty such as acute life-threatening chest infections and diarrhoeal illness.

Islam defined what can be owned privately and what cannot, the existence of a thing or a benefit does not mean that it can be owned. Islam explained who can own what, so for example, an individual cannot own an energy resource, such as electricity generation plant or oil field. It also defined the limits of ownership, how an item can be disposed of. Regarding knowledge, it is not a matter for privatization, allowing great development and excellence in research.

The exploitation of writing books for educational purposes at whatever level is strictly forbidden. Once a book has been printed and published, nobody has the right to reserve the publishing and printing rights, including the author. However, if they were ideas he had, which were not yet printed or published, the owner has the right to be paid for transferring these ideas to the public as he paid for teaching. However, if the teacher imparts something verbally or through writing, the knowledge that the learner took becomes possessed by him and so he has the right to impart that knowledge to anyone else whether verbally or through writing and he has the right to take a fee for it.

With regards to trademarks, these are specific identifying marks to a particular person or company, like a company name such as Glaxo, or a product produced by a particular company like Zantac. The name is an identifying feature, so this cannot be copied, as this would be deception and the Khilafah would prevent this.

The current situation in the world is a far cry from the time of the Khilafah, where the state supported a strong predominately public health sector, in accordance with the commands of RasulAllah (saw); for example during the Battle of Khandaq, he came across wounded soldiers and he ordered a tent be assembled to provide medical care. Public hospitals, or "Bimiristan" (Abode of the Sick) were a great relief for the people. They served all people regardless of their race, religion, citizenship, or gender. The al-Mansuri Hospital, established in Cairo in 1283, had accommodation for 8,000 patients. There were two nursing attendants for each patient, who did everything for his/her comfort and convenience and every patient had his/her own bed, bedding and vessel for eating. This hospital treated in-patients and out-patients giving them free food and medicine. There were mobile dispensaries and clinics for the proper medical care of the disabled and those living in the remote areas. Knowledge was free without restrictions or patenting, either of process or product, allowing reverse engineering as well as explosive innovation and development. Medical faculties had a strong representation within university as well as allied facilities for clinical research in hospital and out-patient settings. Muslims doctors preceded the world in medical research by decades if not hundreds of years in fields as diverse as ophthalmological surgery to cardiac care. With world leading health care centres, medical personnel and medicines, rulers of foreign nations used to migrate to the Khilafah for treatment as the favoured destination, setting a strong precedent for the concept of medical tourism.

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