Copyrights: Fataawa of the Akaabireen

FATAAWA OF THE AKAABIREEN
Excerpt from the Book: The Shariah and Copyrights
<A href="http://themajlis.net" target=_blank>By Mujlisul Ulema of South Africa

The Fataawa of some Akaabireen (Senior Ulama) are presented to confirm the invalidity and impermissibility of copyright and whatever is associated with it.
(1) Hadhrat Mufti Mahmood Hasan Gangohi (rahmatullah alayh) states:

“Haqq-e-Tasneef (copyright) is not maal (tradable commodity) which could be made a gift or sold, hence selling and gifting it are baatil.” (Fataawa Mahmudiyyah, Vol. 15, page 370)

(2) Hadhrat Maulana Rashid Ahmad Gangohi (rahmatullah alayh) states: “Copyright is not maal which could be sold or given as a gift, hence its sale and hibah (making a gift of it) are baatil.” (Fataawa Rashidiyyah, page 427)

(3) Hadhrat Mufti Rashid Ahmad, author of Ahsanul Fataawa, states:
“Copyright which is in vogue is not permissible because there is no specific right of the author. Only the manuscript is his property which he may sell.” (Ahsanul Fataawa, Vol.6, page 528)

(4) Hadhrat Maulana Muhammad Yusuf Ludhyaanwi (rahmatullah alayh) states: “According to our Akaabir it is not permissible to have a copyright registered.” (Aap Ke Masaail. Vol.6, page 199)

THE SHAR’I STATUS OF COPYRIGHTS AND PATENCY RIGHTS
By (Hadhrat Mufti Muhammad Shafi) – Rahmatullah alayh

It is not permissible for an author or an inventor to register any book or invention respectively thereby preventing others from publishing the book and manufacturing the invented item. A person may be prevented from a permissible activity because of two reasons:

(1) The activity is carried out in the property of another person without his consent.
(2) The activity is harmful for others.

In the question under discussion both these factors are not to be found. With regard to the first factor, the publisher or the manufacturer does not operate in the property of the author or the inventor. On the contrary, he arranges all the ways and means for the publication of the book or for the manufacture of the invented item. The book which he prints has also been acquired lawfully Haqq-e-Tasneef (Copyright) is neither maal (tradable commodity) nor does it have the capability of mielkiyyat (becoming someone’s property). However, in the present age, the government has awarded it the status of a right just as it has decreed many other baseless things to be rights.

The second factor (mentioned above) is also non-existent because the publisher of the book does not prevent the author or anyone else from printing and distributing the book. The issue of dharar (harm) is not applicable. On the contrary, the publication by others closes the avenue for exorbitant prices charged by the author and the inventor. When others also publish the book or manufacture the product, the masses are not constrained to buy at the exorbitant prices fixed by the whim and fancy of the author and inventor.

Thus, firstly, this (printing of the book by others) is not dharar. It is admun nafa’ (non-acquisition of profit). In fact it is taqleeun nafa’ or decrease in profit. The difference between dharar and admun nafa’ is quite obvious.

In Mabsoot of Shamsul Aimmah it is mentioned with clarity that it is not permissible to become a cause for dharar (harm) for others. However, if one’s (lawful) activity leads to a decrease in the profit of others, then one’s activity remains lawful. If a particular shopkeeper’s profit decreases or he makes no profit as a result of several shops selling the same wares opening up in the vicinity of his shop, it will not be said that the other shops have caused him dharar. There is therefore, no Shar’i nor rational reason for debarring others

The only reason why an author is averse to others printing the book is to enable him to sell at a high price which he cannot do in the face of competition by others, or his desire is that he alone should derive the benefit of the trade while others are deprived of this lawful gain. This is in fact harm caused to the masses. Hence, instead of debarring others, the author/inventor should be debarred because the Shariah does not permit benefit of an individual at the expense of the masses.

There are many such examples in the authentic Ahaadith. In Bukhaari and Muslim is the narration of Hadhrat Abdullah Ibn Abbaas (radhiyallahu anhu): “Rasulullah (sallallahu alayhi wasallam) forbade that the caravans (of grain) be intercepted, and that the urbanite sells for the village-dweller.”

Here Rasulullah (sallallahu alayhi wasallam) prohibited people of the town (traders and agents) from going to the outskirts to buy grain, etc. which farmers bring to the city. They should not be intercepted on the way and all their produce bought. They should be allowed to enter the city and sell directly to the public. Simarly, agents from the city should not sell the produce of the farmers. To avoid monopoly which will enable the agent or the handful of agents to fix high prices, Rasulullah (sallallahu alayhi wasallam) instituted this measure. The cheap prices at which the farmers will themselves sell their produce directly to the public will be eliminated by the monopoly of the agents. This will be harmful for the masses.

Similarly, the Hadith prohibits hoarding of grain and essential foodstuff. In this practice the grain is hoarded in anticipation of higher prices. When the prices rise, the grain is then sold. This prohibition is also to save the masses from difficulty and hardship. A salient fact in these examples is that these acts are tasarruf (operation) in one’s own mielk (property). Inspite of this, the Shariah has not given people the right to act in a way which will cause distress to the masses. Now what should be the ruling pertaining to something which is not even related to one’s mielkiyyat (ownership), and which constitutes a cause for distress to the public at large?

A person intends to operate in his own mielk, wanting to print the book or manufacture a product, then the author or inventor becomes an obstacle preventing him from this tasarruf in his own mielk. How can this be tolerable?

The noble Fuqaha have formulated a special principle on the basis of the Qur’aan and Hadith for eliminating dharar, and they have narrated many examples of this in Ashbaah wa Nazaair under the heading, Adhararu Yuthaalu. In brief, sometimes the Shariah tolerates shakhsi dharar for the sake of eliminating dharar aammah. (Shakhasi dharar is harm for an individual. Dharar Aammah is harm suffered by the public or the masses.). On the basis of this principle the ruler has the right to fix prices of necessities when there develops a need for this.

It is inconceivable that the Shariah would accept a dharar aammah whose elimination does not harm anyone. In fact, this cause of dharar aammah is not even admun nafa’ (not making any profit). It is only an imaginary decrease in profit (which has yet to be acquired). (Hadhrat Mufti Shafi – rahmatullah alayh – here is saying that the Shariah does not tolerate the public-harm which is caused by the author’s monopoly. In safeguarding the interests of the public at large in relation to printing and publication, harm and loss are not caused to the author. If there is any such harm, it exists in only the imagination of the author – Mujlisul Ulama)

Let us ponder on the scenario universally prevalent in the present age. Neither the poor nor the wealthy, nor the high and the low, feel safe in the state of the all-pervading unrest of the world. Innumerable lawful and unlawful ways for the acquisition of wealth have been introduced and are being fabricated. One of the prime causes for the universal state of strife and unrest is that the capitalist governments, their collaborators and helpers have either captured for themselves or transformed into market commodities the ways of earning which the Shariah of Islam has ordained as public property in which all people have a common right. However, those who pay taxes become the owners of such means and ways. (Or governments have by legislation claimed all public land and the ways and means of earning which the Shariah has set aside for free public use and to be acquired as private property by any individual who desires to own such land or public assets.—Mujlisul Ulama) This was the starting point of the conflict between the capitalists and the workers—a conflict which spawned the unnatural insane system of socialism. Different types of calamities followed in the wake of this system. With certitude it can be said that as long as the straight, clear and just social system of Islam is not accepted the present state of unrest will not end, and public safety will not be achieved.
In terms of this (Islamic) system, whatever Allah Ta’ala has made waqf for the masses (i.e. ordained as public property in which everyone has a share) should be released from the grip and domination of individuals (the capitalists who have grabbed all such means). Similarly, whatever is lawfully the property of individuals, others should not be allowed to even cast their gaze on it.

Examples of public property made waqf for the entire population are the oceans and whatever they yield, the mountains and whatever they yield, the forests, natural fountains, springs, dams, etc., and their yield. All these should be freed and restored for public use. Similary, the unjust ‘right’ of authorship (copyright) should be eliminated and every entrepreneur should be given the opportunity to derive profit from his enterprise and labour. It is only this (Islamic) system of justice and moderation which can guarantee public safety and peace. The summary of this discussion is: In reality copyright and patency right are not things which can become the property of individuals. To prevent a person from applying his effort and capital in the process of printing a book and manufacturing a product which he has seen, is in fact to prevent him from something which is lawful for him and to which he is entitled. It is obvious that such prevention is zulm (oppression) which is not permissible.

Some people present the argument that a benefit of registering copyright is to prevent publishers from printing mutilated and erroneous versions of the books. They do so merely for the sake of gaining more profit. Thus, the true aim of the author is not realised. The response: In such cases the author has the Shar’i right to institute legal proceedings against the publisher because he has attributed to the author a version which is false. In this manner the publisher could be restrained or compelled to rectify the wrong. But there is no Shar’i permission for imposing a general ban on publications.
When it is now understood that the author and the inventor have no right whatsoever of exclusively printing and manufacturing their book and product respectively, then it will be understood that according to the Shariah it is not permissible to trade in these ‘rights’. Maal (tangible asset) is a condition for the validity of buying and selling while haqq-e- mujarrad (an abstract right) is not maal even if it is a means for the acquisition of wealth.

And Allah Subhaanahu Wa Ta’ala knows best.
(Jawaahirul Fiqh, Vol. 2, page 329)

The penultimate ruling stated by Hadhrat Mufti Shafi (rahmatullah alayh) applies when the right is a true haqq recognized by the Shariah. Notwithstanding the validity of a true right, the Shariah prohibits its buying and selling because it is not a tradable asset. In so far as the imaginary copyright, patency right and similar other kuffaar-concocted ‘rights’ are concerned, the prohibition will have greater emphasis. <P align=center>REGISTRATION OF COPYRIGHT
By Hakimul Ummat Hadhrat Maulana Ashraf Ali Thaanvi (Rahmatullah alayh)

Among the evil practices prevalent in this age is the practice of some authors (in fact nowadays of most authors – Mujlisul Ulama) to sell or buy and register copyright. In the Shariah, a right is not property (or an asset which could be owned). This is apparent for the experts of Hadith and Fiqh. Therefore, acting with it as if it is one’s property and to prevent others from deriving benefit from it are all haraam and sinful acts. Allah Ta’ala says: “Do not devour the wealth of one another in baatil (unlawful) ways.” (Islaahur Rusoom, page 109)

Hakimul Ummat, Hadhrat Thaanvi (rahmatullah alayh) declares with emphasis and with the greatest conviction that copyright, its registration, buying and selling are all baatil, haraam and ma’siyat (sinful). It is, therefore, unreasonable and misleading for the liberal Molwis to cite Hadhrat Thaanvi’s fatwa on monetary compensation for a trade-name as a basis for their quest for legality of copyright. The fatwa pertaining to a trade-name should be given a suitable interpretation to accord it reconciliation with Hadhrat Thaanvi’s view on the issue of the sale of rights which he very explicitly declares haraam with emphasis.

He leaves not a vestige of ambiguity regarding the Shariah’s prohibition of buying and selling copyright. If the votaries of copyright cannot produce a reconciliation between the apparently conflicting trade-name fatwa, let them simply set it aside and accept Hadhrat Hakimul Ummat’s categoric fatwa on the refutation of copyright.

The fataawa (Shari rulings) of these Paragons of Ilm and Taqwa – of these illustrious Akaabir Ulama, Hadhrat Maulana Ashraf Ali Thaanvi, Hadhrat Mufti Muhammad Shafi, Hadhrat Maulana Rashid Ahmad Gangohi and others, who were also among the Aarifeen, sink into the hearts of the Mu’mineen just as water sinks into a sponge. Their clear and simple arguments based on the principles and spirit of the Shariah are readily comprehensible to all and sundry and are unlike the laborious, labyrinthal, confusing and conspicuously deviant argumentation with its plethora of far-fetched and baseless interpretations of technical terms which the Fuqaha had coined for the practical guidance of the Ummah, not for giving impetus to and in substantiation of kuffaar systems and concepts which are heavily tainted with the riba hues of western capitalism.

It will be easily discerned and understood that the while the fataawa of the Akaabir Ulama have in view the moral and spiritual interests of the Ummah and the goals of the Aakhirah, the shallow rulings of the liberal Molwis sitting in the luxury of westernized ‘academies’ and flitting in jets to take up seats in western-style conference rooms as if they are the delegates of their countries at some UN session, are designed to pander and pamper the inordinate pecuniary greed of the nafs and to strike an acceptable chord of cordiality and reconcilability with the concepts of kuffaar capitalism which dominate all systems of life in Muslim societies of the age.

Instead of fulfilling their roles as guides and teachers of the Ummah, the liberal Molwis with their strong inclination, in fact embrace of western ideals and systems, have betrayed Islam—they have betrayed Allah, the Rasool and the Ummah. Instead of acting as the Guardians of the Shariah, they have joined by their attitude and baseless rulings the league of westernized Muslims whose goal on earth it has become to subvert the Shariah, refute its immutability, re-interpret its sacred principles which were perfected in the very age of the Qur’aanic revelation and codified into a systematic Order by the Aimmah-e- Mujtahideen of the first era of Islam.

Their attitude of liberalism which has been spawned by their love for western modernism with its worldly comforts and pleasures, is increasingly alienating them from the Shariah and the Ummah. They are inexorably engaging in wild interpretations of technical terms to make way for the accommodation of Islam within the folds of western modernism. Every baatil western practice of their economic system, glaringly tainted with riba and haraam, is accorded Shar’i sanctity by the liberal Molwis. The twin diseases of Hubb-e-Jah (love for name and fame) and Hubb-e-Maal (love for material wealth) are the motivating force for all the corruption which the acquiescing Molwis have created in the ranks of the Ummah with their liberalism.

Although most of these Molwis are driven to pursue their mundane and nafsaani goals by base and ulterior motives, there is a tiny minority of sincere Ulama in their ranks, who have committed grave Ilmi errors in the formulation of their fataawa on issues such as copyright. We do not associate these sincere Ulama with the liberals and our criticism is not directed towards them. Even great Ulama who are men of profound Ilm and Taqwa also err. The retractions issued by sincere Ulama testify to the truth we are saying here.

The gravest threat for the Shariah and the Ummah in this age is not the deviant modernists –the mulhideen. The danger is the liberal molwi whose goal in life is this dunya, not the Aakhirah. About them, Rasulullah (sallallahu alayhi wasallam) said:

“Verily, I fear for my Ummah the Aimmah-e-Mudhilleen.” That is, those ‘scholars’, ‘sheikhs’, imams and ‘molwis’ who will lead the Ummah astray with their concocted views of the Shariah. Today, there is a mass production of such mudhilleen. A salient sign by which they may be detected is their leaning of admut taqleed. Their endeavour is to legalize baatil with a patchwork of dalaail woven from principles, teachings, exceptions and obscurities drawn from all Math-habs. The conspiracy is to structure a new ‘shariah’ which is so spacious that every norm, concept and cult of kuffaar, especially western society, can be accommodated.

However, they are doomed to failure because Allah Ta’ala, Himself has undertaken the responsibility of safeguarding His Immutable Shariah:
“Verily, We have revealed the Thikr and verily We are its Protectors.” (Qur’aan)