Structure of Thesis Argument

The thesis argues that Islamic Shari’a continues to be relevant in the modern era as it has mechanisms that relate its objectives and principles to contemporary realities. As a result, culture and law in many countries with predominantly Islamic populations are affected and influenced by the dictates of Islamic Shari’a. The sources, principles and objectives of Islamic Shari’a have been applied to adopt various scientific and legal issues — including IP — into Islamic Shari’a.

Historically, Islamic civilisation recognised mental labour, although it did not develop an indigenous counterpart to the current notion of IP. Concepts derived from the sources of Islamic Shari’a — such as scope of ownership, labour, encouraging productivity and discouraging ‘free-riding’ — can be employed to justify Islamic Shari’a’s recognition and protection of ownership over ideas and expressions.

Nevertheless, Shari’a’s recognition and protection of ownership over ideas and expressions should not be confused with the application of IP protection and enforcement as manifested in the current international framework of IP.

The benchmark for law making in Islamic Shari’a is the public interest. The concept of public interest aligns closely with the modern definitions and measures of development. Arguably, the currently dominant IP systems were not set up to promote development. Firstly, developing countries had no or little influence in shaping those systems. Secondly, now-developed countries (NDCs) were able to build their industrial base and achieve overall development without the kind of IP protection offered in the current systems. Moreover, the currently dominant IP systems are negatively linked to pressing challenges in developing countries such as public health, education and economic growth. Therefore, if the currently dominant IP systems do not promote development, then they do not promote the public interest from an Islamic perspective.

In order to design a fairer and more efficient IP system from an Islamic perspective, it is not sufficient to consider the economic analysis of IP. In other words, we need to

15 look beyond the incentive rhetoric which dominates the normative analysis of the currently dominant IP systems. We need a holistic approach towards the regulation of the production, protection and dissemination of knowledge and cultural products.

Principles derived from Islamic Shari’a contribute to this end. These principles include Islamic Shari’a’s perception of ownership, social justice, dissemination of knowledge and limits of private rights. Such principles can be used to construct a normative framework that assists in clarifying the nature of an IP system that is compatible with Islamic Shari’a. This normative framework supports an IP system that allows for greater openness, solid rights for users of intellectual goods and recognises the importance of sharing and cooperation as modalities for knowledge and cultural production. These values, when infused into the IP system, have the potential to promote overall development as required by Islamic Shari’a.

There is a growing body of literature that is relevant to Islamic Shari’a’s perception of the current IP system. This work offers recommendations and policy measures that may lead to the application of Shari’a’s principles to the regulation of knowledge and cultural products. It recognises the existence of myriad challenges that render the current IP systems insensitive to the public interest, particularly with regard to access to cultural and knowledge products, public health and overall socio-economic welfare. Therefore, it proposes examples for legislative reforms and policy measures oriented toward openness, fair distribution and greater dissemination of knowledge and cultural resources. Examples of proposed legislative reforms and policy measures include: an expanded public domain, solid rights for the users of intellectual products, promotion of alternative modalities of knowledge production and broader access to knowledge (A2K) policy.³⁸ These proposals, if adopted, could alleviate the negative impacts of the current IP systems in terms of access to medicines and educational materials and enhance economic growth while also promoting knowledge dissemination and social justice as Shari’a requires.

Libya has unique circumstances that make it an ideal case study for implementing a Shari’a friendly IP system. A Shari’a-friendly IP system in Libya would essentially focus on making the legal rules of IP development-oriented. This could be done by reorienting the Libyan IP system towards greater openness, stronger user rights and the consideration of alternative modalities of knowledge and cultural production and

38 A detailed explanation is given to these concepts in Chapter 6.

16 management. Although implementation of a Shari’a-friendly IP system may assist with promoting development in Libya, it is not enough by itself. There should be a supplementary agenda integrated into the Libyan development plan to invigorate the country’s technological and industrial base.

1.2 Methodology

This thesis primarily undertakes a theoretical examination of the way in which the sources and objectives of Islamic Shari’a interact with and inform IP. It examines IP in terms of theory and practice to ascertain an optimal approach for protecting intellectual products from an Islamic perspective.

The first stage of this project involved an examination of both classic³⁹ and modern⁴⁰ Islamic jurisprudence as well as decisions of different Islamic institutions regarding the adaptation of Islamic Shari’a to modern conditions. This stage sought to provide a background on Islamic Shari’a, its sources and how it is relevant to modern era.

The second stage of this project assessed the secondary literature on IP and Islamic Shari’a.⁴¹This assessment required a critical review of the opinions of both opponents and proponents of Islamic Shari’a’s protection for IP. The primary aim was to determine the proper scope of this research.

The third stage employed certain sources and objectives within Islamic Shari’a to conduct a doctrinal analysis of the application of IP as manifested in the current international IP system. The main focus was on maslaha mursala (consideration of

39 See for instance: Al-Amidi, Ihkām fi Usūl Ahkām (Dār Sumai’ī, 2003); Jalal Dīn al-Suyuti, al-Ashbah wa al-nazāyir (Dār al-Kutub al-‘ilmiyya 1983); 32. Ibn al-Qaiyyim, I’lam al muwaqi’īn (Dār ibn Jawzi, 2002) Vol 2; ‘izz Ibn Abd salam, Qaw’aid Ahkām fi Islāh al-Anām (Dār ibn hazm, 2003).

40 For instance: Muhammed Abu Zahra, Usūl Fiqh (Dār Fikr ‘arabi, 2006); Yūsuf al-Qaradawi, Shari’atu al-Islam Salihtun li al-Tatbīq fi kul Zaman wa Makan (Wahba Library, 5^th ed, 1997); Yūsuf al-Qaradawi, Ijtihad fi al-Shari’a al-Islamiyya (Dār al-qalam, 1996); Wahba al-Zuhili, Usūl al-Fiqh al-Islami, (Dār al-Fikr,1986).

41 Fathi al-Dirini, Haq al-Ibtikar fi al-Fiqh al-Islami al-Muqāran (al-Risāla Foundation, 1977); A.

Abdul-Same’ Abu al-Khīr, al-Haq al-Mali li al-Muwalif fi al-Fiqh al-Islami wa al-Qānun al-Masri (Wahba Library,1988); Ida Madieha BT. Abdul Ghani Azmi, ‘Basis for the Recognition of

Intellectual Property in Light of the Shari’ah’ 1996 International Review of Industrial Property Vol 27; Jamar Steven D, ‘The Protection of Intellectual Property under Islamic Law’ (1992) 21 Cap U.L Rev.1079; Amir H, Khory, ‘Ancient and Islamic Sources of Intellectual Property Protection in the Middle East: A Focus on Trademarks’ (2003) 43 IDEA: The Journal of Law and Technology; Heba Raslan, ‘Shari’a and the Protection of Intellectual Property, the Example of Egypt’ (2007) Intellectual Property Law Review; Ida Madieha BT. Abdul Ghani Azmi, Intellectual Property Laws and Islam in Malaysia (PhD Thesis Submitted to the Intellectual Property Law Unit of the Centre of

Commercial Law Studies, Queen Mary and Westfield College, London, 1996).

17 public interest from Islamic perspective) and some of the objectives of Islamic Shari’a in preserving life, intellect and wealth.⁴² The modern international definitions and recent studies on development are used to measure and identify the public interest from an Islamic perspective. In particular, development measurements such as public health, access to education and economic growth are used to determine whether the currently dominant IP systems promote Shari’a’s objectives in preserving life, intellect and wealth. The sources and objectives of Islamic Shari’a are further used to conceptualise a set of principles that can operate as a normative framework for optimal regulation of the protection of intellectual goods from an Islamic perspective.

The fourth stage of this project surveyed the secular literature⁴³ on IP to identify the best possible approaches towards implementing the parameters of the normative framework designed in the third stage. Several examples for recommendations and policy measures in that literature were found to be compatible with certain principles in Islamic Shari’a.

Finally, this project identified the main components of the current Libyan IP system and highlighted current policy directions in Libya regarding IP. These components and policy directions were then critically analysed in light of the findings from the previous stages. The main aim in this stage was to explore ways of implementing a Shari’a-friendly and development-oriented IP system in Libya.

42 Some of the sources employed include: Idris Hamadi, al-Masālih al-Mursala wa bina’ al-Mujtamaʿ Insani (Ma’ārif Jadida, Morocco, 2009); Tahir B. Ashur, Maqasid Shari’a

Islamiyya (Dār Nafā’is, 2001); Muhammed Sa’īd Būti, dawābit maslaha fi shari’a al-islamiyya (PhD Thesis, Faculty of Shari’a al-Azhar University,1965)

43 This survey included the work of leading Western scholars such as Yochai Benkler, ‘The Unselfish Gene’ (Aug 2011) Harvard Business Review, 89; Yochai Benkler, ‘Sharing Nicely: On Shareable Goods and the Emergence of Sharing as a Modality of Economic Production’ (2005) The Yale Law Journal, Yochai Benkler, The Penguin and the Leviathan: How Cooperation Triumphs over Self-Interest (Random House, 2011), Lawrence Lessig, 'Creative Commons' (2004) 65 Mont. L. Rev, 1;

Lawrence Lessig, How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (Penguin Books, 2004); James Boyle, The Public Domain: Enclosing the Commons of the Mind (Yale University Press, 2010); Jessica Litman, ‘The Public Domain’ (1990) 39 Emory L. J. 965;

Jessica Litman, Digital Copyright (Prometheus Books, 2001); Pamela Samuelson, ‘Enriching Discourse on Public Domains’ (2006) Duke Law Journal, Vol. 55, No. 4; Net Netanel, Copyright Paradox, (Oxford University Press, 2008); Robert. P. Merges, Justifying Intellectual Property (Harvard University Press, 2011)

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