Scope and Limitations

Islamic World that aim to present modern development plans based on Islamic Shari'a.

Additionally, this study points to the existence of commonalities between Islamic legal traditions and Western philosophical and legal trends relating to the regulation and management of knowledge and culture. Therefore, it will be of significant importance to promoting mutual understanding between Islam and other cultures, particularly in the West, concerning the regulation and management of knowledge and culture.

An important aspect of this research is that it takes into consideration the role of Islamic Shari’a in influencing law and culture in Libya, as well as the country’s level of development. It will, therefore, assist policymakers in crafting an intellectual property system that is consistent with the Libyan legal system and cultural context and, at the same time, Libya’s need to push the development wheel.

1.1.5 Scope and Limitations

For the purposes of this study, intellectual property (IP) encompasses the copyright, patents and trademarks regimes as they are the oldest and the most widely used systems. In addition, the new forms of protecting IP such as designs and plant varieties draw largely from these old regimes, particularly patent and copyright.²⁰ Copyright protects virtually all forms of communicative expressions such as printed publications, sound and television broadcasting, films for public exhibition in cinemas and even computerised systems for the storage and retrieval of information.²¹ In some countries’ constitutions, copyright is considered to be a pillar of the “progress of science and useful arts”.²² A similar comment could be made regarding patents, a limited-term legal protection granted by the government to the creators of novel, inventive and industrially applicable creations that provide “a solution to a specific problem in the field of technology”²³in the form of product or

20 W. Cornish et al, Intellectual Property: Patents, Copyright, Trademarks and Allied Rights (Sweet and Maxwell, 7^th Ed, 2010) 7

21 World Intellectual Property Organisation WIPO Intellectual Property Handbook (WIPO, 2004) 40.

22 Clause 8 of the United States Constitution

23 WIPO, above n 21, 17.

12 process or a combination of the two.²⁴ Trademarks are signs, words or symbols that distinguish the goods or services of a given enterprise from the goods or services of its competitors.²⁵

This thesis examines certain aspects of the current and predominant IP system in light of the sources and objectives of Islamic Shari’a. For the purposes of this study

“the current and predominant IP system” refers to the existing international framework of IP based on multilateral and bilateral conventions. The majority of nations around the world are signatories to those conventions, including the overwhelming majority of Islamic countries.²⁶ The current and predominant IP system consists of numerous conventions related to all the provinces of IP such as copyright, patent and trademarks.²⁷ The main pillars of the existing international IP framework include:²⁸

 The Paris Convention for the Protection of Industrial Property 1883 (hereinafter the Paris Convention).²⁹This Convention regulates the protection of patents, utility models, industrial designs and trademarks.³⁰

 The Berne Convention for the Protection of Literary and Artistic Works 1886 (hereinafter the Berne Convention)³¹This Convention regulates the protection of literary and artistic works, derivative works, cinematographic works and works of architecture.³²

 The Agreement on Trade-Related Aspects of Intellectual Property Rights adopted in 1994, (hereinafter the TRIPs Agreement or TRIPs).³³ The TRIPs Agreement

24 Anne Fitzgerald and Brian Fitzgerald Intellectual Property in Principle (Lawbook, Sydney, 2004) 308.

25 WIPO, above n 22, 67.

26 Most of the members of the Organization of Islamic Cooperation are members of the Berne and Paris Conventions and the TRIPS. For instance, compare the member of OIC http://www.oic-oci.org/member_states.asp to the members of the said IP conventions:

http://www.wipo.int/portal/index.html.en.

27 See for instance WIPO, WIPO Conventions and Conventions Administered by WIPO, available online at: http://www.wipo.int/ldcs/en/accession/treaties.html.

28 Graeme B. Dinwoodie, ‘The Architecture of the International Intellectual Property System’ (2002) Chicago-Kent College of Law 994-1004

29 Available online at http://www.wipo.int/treaties/en/ip/paris/pdf/trtdocs_wo020.pdf

30 Paris Convention, art 4.

31 Available online at http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html

32 Berne Convention, arts 2 and 4

33 Available online at http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm

13 adopted the regulation of IP as laid down in Paris and Berne Conventions³⁴ and provided special provisions dedicated to make IP as part of the international trade regime.³⁵

 Numerous bilateral agreements in the form of free trade agreements (FTAs). The dominant form of such agreements is the FTAs entered into by the European Union and the United States with both developed and developing nations.³⁶ Many of these FTAs include IP provisions that increase the standards of protection offered in TRIPs. The TRIPs-plus standards³⁷ in FTAs often include an increased duration of protection, broader exclusive rights of IP holders and restrictions on users’ rights.

This work blazes a trail for exploring an Islamic perspective on the regulation and management of IP rights. Therefore the author is aware of the limitations associated with it. These limitations have at least two aspects.

On the one hand, IP is a multifaceted discipline. It consists of copyright, patent, trademarks and other provinces. It is difficult to cover all of the IP regimes in this study, let alone to cover all aspects of each regime. This thesis, therefore, focuses on the main IP regimes, namely, copyright, patent and trademarks. It draws on various aspects of copyright, patent and trademark law in examining the relationship between IP and Islamic Shari’a.

On the other hand, the sources, objectives and principles of Islamic Shari’a are also very broad. They cannot be easily covered in one thesis. Therefore, this thesis allocates Chapter 2 to provide a general overview of the Islamic sources and their relevance to modern times and briefly illustrates the sources, objectives and

34 Article 2 of the TRIPS.

35 TRIPs Agreement Preamble

36 See US. Free Trade Agreements, http://export.gov/fta/ and European Union FTAs, http://trade.ec.europa.eu/doclib/docs/2012/november/tradoc_150129.pdf

37 The rules contained in FTAs are usually called TRIPs-plus. This is because they add extra

protection to the TRIPs standards. For instance, TRIPs-plus provisions in US FTAs expand the scope of copyright and patent protection to new subject matter, put restrictions on the application of the exceptions and limitations laid down in the TRIPs and extend the protection term of IP subject matter, particularly for copyright. For more on the IP provisions of FTAs see: Carsten Fink and Patrick Reichenmiller, ‘Tightening TRIPS: Intellectual Property Provisions of US. Free Trade Agreements’ in Richard Newfarmer, Trade, Doha, and Development (World Bank, 2006) 289; Anselm Kamperman Sanders, 'Intellectual Property, Free Trade Agreements and Economic Development' (2006-2007) 23 Ga. St. U. L. Rev 893; Peter Drahos, 'Securing the Future of Intellectual Property: Intellectual Property Owners and Their Nodally Coordinated Enforcement Pyramid' (2004) 36 Case W. Res. J.

Int'l L.

14 principles that are relevant when analysing IP from an Islamic perspective. This is done to the extent necessary to provide a basis for understanding how Islamic notions may relate to and impact IP.