I doubt if illegal copying for text book is forbidden? Is there any source from Hadits or Qur’an related to this? Thank you.
The Issue of Copyright
The following are frequently encountered issues for authors and software
developers:
Can we register a book under the Copyright Act which bars the people from
publishing that book vithout the permission of the copyright holder?
If something is registered under the law of copyright, should we abide by
the restrictions imposed by that law?
Can a copyright holder sell his right of publishing to another person, for a
monetary gain?
Mufti Taqi Uthmani, a learned scholar and Justice of the Supreme Court of
Pakistan answers:
The question of ‘copyright’ is related to a wider concept, generally known
as the concept of ‘intellectual property’. In previous times, the concept of
ownership was confined to only tangible objects. The theory of ‘intellectual
property’ contemplates that whoever applies his mental labour to invent
something is the owner of the fruits of his labour. If a person has invented
a certain instrument, he does not own that 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
only 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’ân or in the Sunnah of the Holy Prophet
Sallallâhu alayhi wasallam. The acceptability or otherwise of such new
concepts which are not clearly mentioned in the original sources of Islâmic
jurisprudence can only be inferred from the general principles laid down by
the Sharî’ah. 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 case. The question of ‘intellectual property’ has also
been a subject of discussion among the contemporary Muslim scholars of
Sharî’ah whose opinions differ about its acceptability in Sharî’ah.
First view
A group of contemporary scholars do not approve of ‘intellectual property’.
According to them the concept of ownership in Sharî’ah is confined to
tangible objects only. They contend that there is no precedent in the Holy
Qur’ân, in the Sunnah or in the juristic views of the earlier Muslim jurists
where an intangible object has been subjected to private ownership or to
sale and purchase. They further argue that ‘knowledge’ in Islâm is not the a
property of an individual, nor can he prevent others form acquiring
knowledge, whereas the concept of ‘intellectual property’ leads to the
monopoly of some individuals’ knowledge, which can never be accepted by
Islâm.
Second view
On the other hand, some contempo-rary scholars take the concept of
‘intellectual property’ as acceptable in Sharî’âh. They say that there is no
express provision in the Holy Qur’ân or in the Sunnah which restricts the
ownership to the tangible objects only. There are several intangible rights
accepted and maintained by the Sharî’âh, 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 averting 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 invented it by his mental labour is more entitled to its
commercial benefits, and any other person should not be allowed to reap the
monetary fruits of the former’s labour 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.
The author’s view
Both of these Views have their own arguments. I have analysed the arguments
of both sides in my Arabic treatise ‘Bay-ul-Huqûq’ 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 consideration.
Coming to the question of restrictions imposed by the law, 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 the 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 Sharî’âh 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 Islâm as laid down in the Holy
Qur’ân and Sunnah. In such situations, an Islâmic state can prefer one view
over the other, and if it does so by a specific legislation, its decision is
binding even on those scholars who have an opposite view. It is an accepted
position in the Islâmic jurisprudence that the legislation of an Islâmic
state resolves the juristic dispute in a manner not expressly mentioned in
the Holy Qur’ân or in the Sunnah. Therefore, if an Islâmic state promulgates
a law in favour of the concept of ‘intellectual property’ without violating
any pro-vision of the Holy Qur’ân 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 Islâmic government, every
citizen enters into an express or a tacit agreement with it to the effect
that he will abide by its laws insofar as they do not compel him to anything
which is not permissible in Sharî’âh. Therefore if the law requires a
citizen to refrain from an act which was otherwise permissible (not
mandatory) in Sharî’âh he must refrain from it.
Even the scholars who do not accept the concept of ‘intellectual property’,
do not hold the view that it, is a mandatory requirement of Sharî’âh to
violate the rights recognised 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 it
restrains him from a mandatory act under the Sharî’âh.