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Intellectual Property from an Islamic Analysis and a Study of it Under the Western View

Refutation of Intellectual Property
Intellectual property, arguably a recent phenomenon and perhaps novel to some, nevertheless has characterised western economics, multi national co-operations and aided western economic colonisation.
In today’s debate it seems to have become an indispensable tool for the Capitalists in aiding the ideological, political, socio-economic, & intellectual hegemony as will be argued later.

What is the reality of intellectual property, its usage, its refutation and the Islamic viewpoint?

Ideological Origins of Intellectual Property:

A study of intellectual property illustrates that its roots and source of motivation are respectively intrinsically linked with the fundamentals of Capitalism.  

The capitalist economic system is based upon the capitalist perception of reality, which influenced them to advocate that man’s material needs were exposed to an inherent shortage of commodities.  

The value of any commodity, they argued, was intrinsically linked to its benefit to man. Hence anything, which was perceived as beneficial, could also be subject to ownership.  

The criterion therefore for satisfying man’s needs, determining ownership, or judging the distribution of these apparent scarce commodities was “price”, the cornerstone of the capitalist economy.

Why Intellectual Property?

The Industrial revolution from the 18th century onwards was a significant landmark for the elevation of the western ideological nations. Advances in technology, engineering, medicine, and science influenced all aspects of life, symbolizing the transition of an artisan society towards one of mass production and the transformation of industry.Although these developments have been for the use of the West alone and of little use to the vast majority of the world, it was within this environment that essentially a dilemma arose.

In the words of the WIPO itself, “the need for international protection of intellectual property became evident when foreign exhibitors refused to attend the International Exhibition of Inventions in Vienna in 1873 because they were afraid their ideas would be stolen and exploited commercially in other countries.”In other words, the very history of Intellectual property emanated from an attempt to curtail the knowledge and science of innovation for the western intellectuals and their sponsors namely the Capitalists.

Essentially the question that arose was related to the apparent plagiarism of someone’s idea. In other words, does an idea belong to anyone? Can someone benefit from someone else’s idea? Is there any inherent value in an idea? Can any individual control the use, or non-use of an idea or invention?The notion of this argument epitomizes absurdity per se as the reality for any thought to occur is that it requires a previous thought! In other words previous information is an integral component to any new thought. Without previous information seldom has man progressed.

A dissection of the arguments advocated can essentially be attributed to two fundamental sources.Firstly, the right to freedom of ownership. The Capitalists consider any commodity that has a benefit for man as wealth, i.e. having a particular value. Its value is determined by supply and demand and bought by the exchange of a price. Therefore they considered the individual’s knowledge as wealth that is subject to ownership for a specific price. Therefore the one who comes to know or learn someone’s knowledge cannot use it except by paying a price.

Secondly, the socio-economic and political implications. Altruistic attitudes towards intellectual property contradict the very principles of Capitalism and its method of carrying its ideology namely Colonialism.

What is Intellectual Property?

It is paramount to define Intellectual Property and understand its reality in order to entertain its profound implications in the wider world, namely the socio-economic, political, intellectual spheres of life.Intellectual property, very broadly, means the legal rights, which result from intellectual activity in the industrial, scientific, literary and artistic fields.

The laws of protecting intellectual property give the individual the right to protect his invention, grant him the power to dispose of it and prevent others from using this invention without his permission. In layman’s terminology, this means that one man cannot come along and take the science forward from where it is. He has to re-design and re-invent from scratch, rather than building on what’s there.

We can see the obstacle this places today, for example, Microsoft alone can develop the operating system of the majority of the world’s personal computers, no-one else can collaborate and build on the technology already there.Or, if a person buys a book or a disk which is copyright protected, or if a life saving drug for cancer or HIV is discovered, all rights belong to the patent holder and he has the right to impose restrictions on the sale, consumption, or utilization of the product as he wills.

Types of Intellectual Property:

Intellectual property is divided into two categories: a. Industrial property: which includes inventions (patents), trademarks, industrial designs, etc.

b. Copyright: which includes literary and artistic works such as novels, poems and plays, films, musical works, etc.

1. Inventions (patents)

A patent is a monopoly given by a government that confers exclusive rights upon the creator of an invention the sole right to make, use, and sell that invention for a set period of time. It is intended to prevent mechanical inventions or chemical processes from being copied. A patent allows the holder to exclude anyone else from making, using or selling the ‘invention’ for up to 20 years, although this can be extended by clever manoeuvring for up to 30 years or even longer

A patent provides protection for the invention to the owner of the patent. Patent protection means that the invention cannot be commercially made, used, distributed or sold without the patent owner’s consent. These patent rights are usually enforced in a court, which, in most systems, holds the authority to stop patent infringement.A patent owner has the right to decide who may – or may not – use the patented invention for the period in which the invention is protected. The patent owner may give permission to, or license, other parties to use the invention on mutually agreed terms.

2. Trademarks

A trademark is a distinctive sign, which identifies certain goods or services as those produced or provided by a specific person or enterprise. The system helps consumers identify and purchase a product or service because its nature and quality, indicated by its unique trademark, meets their needs.

A trademark provides protection to the owner of the mark by ensuring the exclusive right to use it to identify goods or services, or to authorize another to use it in return for payment. Trademark protection is enforced by the courts, which in most systems have the authority to block trademark infringement.

3. Copyright and Related Rights

Copyright is a legal term describing rights given to creators for their literary and artistic works. It deals with printed publications, sound and television broadcasting and even computerized systems for the storage and retrieval of information.The original creators of works protected by copyright, and their heirs, have certain basic rights. They hold the exclusive right to use or authorize others to use the work on agreed terms.

The Implications of Intellectual Property:

WIPO argues, “Intellectual property plays an important role in an increasingly broad range of areas, ranging from the Internet to health care to nearly all aspects of science, technology, literature and the arts.”There are two sides for every argument, so the proverb goes. However the reality is irrevocably one. Inevitably there must be a correct and an incorrect viewpoint towards it.

The discussion on the origins and reality of intellectual property has already brought this statement into disrepute, however let us place the key areas of development post intellectual property under the microscope and see their ramifications.

Science and Medicine

Discoveries surrounding science and medicine during the last century have been numerous. Penicillin, the double-helix structure of DNA, cloning, transgenic technology, plant and human genomic sequencing, vaccines and others just to name a few.Medicine has been defined as, “The science of diagnosing, treating, or preventing disease and other damage to the body or mind.”

However, the adherents of Jeremy Bantham, Adam Smith and other forefathers of Capitalism like Richard Sykes (gsk), David Brennan (Astra), or Robert Shapiro (Monsanto), sitting on the board of directors of such industries have very little concern for such values.As Dr. Sue Meyer of the research group, Genewatch UK concurs, “Science is driven by private interest, aiming at maximising their shareholder values, rather than addressing public health issues.”

Even the WTO Director-General Mike Moore, admits that medical research for some types of diseases is not even financially worthwhile. To quote, “There are no effective treatments for some ills that affect people in poor countries only, because developing them is not commercially viable.” He is right; the companies are too busy developing money-spinners like Viagra and obesity drugs.

Aids

A report projected that the number of aids victims is greater than all the combatants killed in World War I, World War II, Korea and Vietnam combined.However, according to WHO none of the countries with high infection rates (ninety-five percent of people with HIV in the world live in developing countries) can afford the per-patient $10-15,000 price tag of non-generic HIV drugs. What this means is that the African countries face a social, economic and political devastation of apocalyptic proportions because of intellectual property enforcement.

Yet the WTO aims to restrict the right of developing countries to produce cheaper drugs for their own people, forcing them instead to accept private ownership of brand-named medicines through long patents. In 1998 the WTO ruled that the Indian government must amend its national legislation in line with the TRIPs agreement to give greater rights to pharmaceutical companies’ patents.

The value of Human Life

Perverse officials from the population and human resources department at the World Bank in a June 1992 report have concluded there may be a silver lining in the plague. Quote, “If the only effect of the AIDS epidemic were to reduce the population growth rate, it would increase the growth rate of per capita income in any plausible economic model,” argued one, In other words, like the 14th-century bubonic plague in Europe, AIDS in Africa might propel an economic rebirth!

Aid Relief?

The Clinton administration pledged $1 billion to fight AIDS in Africa, rather similar to Blair and his current mission to save Africa.However, Clinton’s money turned out to be in the form of Export-Import Bank loans, at commercial interest rates, to buy American drugs at market price. This initiative was hailed by American pharmaceutical companies, which looked forward to more profits for their $1 billion-a-year industry. But there were no takers.

Patenting Life

Patenting genes is set to be one of the most significant issues of this century. Research commissioned by the Guardian reveals the awesome scale of the gene rush.Alongside human genes, patents are being sought by organisations, overwhelmingly from rich countries, on hundreds of thousands of animal and plant genes, including those in staple crops such as rice and wheat.

The Guardian’s research found that patents are pending on genes controlling processes in the human heart, teeth, tongue, colon, skin, brain, bone, ear, lung, liver, kidney, sperm, blood and immune system 9,364 patents relating to the human body have been filed for so far. The applications made cover 126,672 genes or partial gene sequences. 21 patents covering HIV genes. 152 patents have been applied for on rice, these patents cover 584 genes.The implications of these multi nationals holding the patents are inconceivable. Granting patents on genes gives an exclusive monopoly of the human body over new treatments, medicines, research, and technologies to the capitalists.

To quote Thomas Schweiger, of German Greenpeace, which is campaigning against gene patenting “It’s like someone buying a street and taking a toll from everybody passing through.”

Biological Advancements

Biological information can now be claimed as intellectual property. US courts have ruled that genetic sequences can be patented, even when the sequences are found “in nature”. This has led companies to race to take out patents on numerous genetic codes. In some cases, patents have been granted covering all transgenic forms of an entire species, such as soybeans or cotton, causing enormous controversy.

The consequence is that international corporations are patenting genetic materials found in Third World plants and animals, so that some Third World peoples actually have to pay to use seeds and other genetic materials that have been freely available to them for centuries.

Technology & Engineering

This past century was witness to extraordinary strides in technology that has radically changed western lives through the discoveries of computers, Internet, etc. From its beginning in 1875, the US Company AT&T collected patents in order to ensure its monopoly on telephones. According to analysts, it strategically slowed down the introduction of radio for some 20 years.

In a similar fashion, General Electric (GE Capital) used control of patents to retard the introduction of fluorescent lights, which were a threat to its sales of incandescent lights.All aspects of technology from Business-to-Business Software, Graphical Software, GUIS, Audio Software and File Formats, Internet Search Engines, Web Standards etc are all patented.

Today, experts estimate that Microsoft controls about 90% of the market for the operating system software (OS), which is used to run personal computers. Moreover, Microsoft controls nearly the same 90% market share for popular applications such as Word Processors, spreadsheets, presentation graphic programs and relational databasesCopyright and intellectual property enforcement has resulted in staggering multi billion monopolies usurped by the likes of Bill Gates, Jack Welch (GE) and other CEOs.

Intellectual Stagnation

WIPO states quote, “Intellectual property promotes as a deliberate act of government policy, creativity and the dissemination and application of its results.”However, the advocates of Intellectual property & the capitalist philosophy have not only monopolised the very concept of thoughts & ideas, but created a vacuum and intellectually colonised the developing world by creating a severe inhibition on research by non-patent holders.

The use of intellectual property has been a tool that has been used to curtail development for the economic interests of the patent holder. The scientific advancement has been despite of, rather than because of, the way the West has applied itself since the industrial revolution, as research by GeneWatch UK concurs.In effect thus relegating the third world nations as the consumer markets for their products and so these nations are subject to their influence, stealing their wealth and resources in the name of intellectual property & patents.

Furthermore, the capitalist view on the value of actions has also hindered research. Cooperates expect tangible “benefit” from any research before licensing it. As a researcher, if you take the research money but cannot deliver tangible results, then your research programme is terminated. Thereby the capitalist nations have ensured that the developing world remains declined and dependent upon her. Hence introducing intellectual property at the juncture of her own intellectual elevation at the expense of the man.

Problems for the West

Enforcing intellectual property in the international world markets has brought its problems for the west, not least epitomized by the recent fiasco involving the South African government.In the face of the worst plague to face humanity since the Middle Ages the HIV/AIDS epidemic in Africa has brought Africa into the limelight.

Earlier this year 39 pharmaceutical companies tried to sue the South African government (with the help of the US) in order to prevent them importing affordably cheap medicines for South Africa’s HIV-positive population.Brazil four years ago began to produce its own generic versions of the AIDS triple therapy drugs and importing others at low cost. Since then Brazil has halved its AIDS death rate and reduced hospitalisation for the disease.

The Indian pharmaceutical company Cipla is making triple therapy available at $600 per year. It is providing HIV drugs for use in Africa. The patented cocktail costs between $10,000 and $15,000 for a year’s treatment. Cipla has offered its substitute at cost: $350 a year.

Enforcing Intellectual Property

The pharmaceutical lobby in the last 2 years has spent $246 million lobbying the congress, and gives millions in campaign donations to the US political establishment, to constantly push the U.S. trade office to file cases against developing countries at the World Trade Organisation e.g. South Africa, Brazil.The US has been acting as the industry’s policeman, threatening trade sanctions against countries such as Thailand, the Dominican Republic, and more than 15 other developing countries unless they abandon manufacturing, exporting, or purchasing generic copies of drugs that American firms have patented.

Under its “Special 301” trade law provision, the United States can unilaterally impose trades sanctions on countries that differ with her wishes and refuse to endorse patented drugs. In November 1999, the US used this arm-twisting tactic to force Thailand to stop using generic drugs.The foundation of WIPO was initialised as early as March 20 1883 at the Paris Convention for the Protection of Industrial Property, the first major international treaty designed to help the people of one country obtain protection in other countries for their intellectual creations.

WIPO today is a specialized agency of the United Nations system of organizations, with a mandate to administer intellectual property matters recognized by the member States of the UN.In 1995 the World Trade Organization adopted the idea of protecting intellectual property and so WIPO became part of the WTO. On January 1, 1996, an agreement between the World Intellectual Property Organization and the World Trade Organization entered into force.

The Agreement on Trade?Related Aspects of Intellectual Property Rights (TRIPS), which forms part of the overall Agreement establishing the World Trade Organization (WTO), requires the members of the WTO to ensure that effective enforcement procedures are available.Until the creation of the WTO in 1995, few poor countries had intellectual property laws and countries like Egypt, Thailand and India developed thriving generic drugs industries.

However, under the new WTO rules, strict US intellectual property rights rules, which the US pharmaceuticals industry was extremely influential in drawing up extend patent rights for 20 years, have become standard. All 140 WTO member countries, even the poorest member states in Africa, must change their laws to conform until 2006.

Under this agreement, the WTO aims to restrict the right of developing countries to produce cheaper drugs for their own people, forcing them instead to accept private ownership of brand-named medicines through long patents.

Islamic Perspective: Needs & Instincts

So what is the Islamic perspective towards Intellectual property?Islam recognises that man has needs & instincts which need satisfying. Hence within our context, it is man’s biological needs and survival instinct that are under scrutiny i.e. man’s need to eat, and his survival, which requires him to own certain amenities to ensure survival & a respectable life.

On this subject matter, Islam distinguished between man’s needs/instincts, and the means of satisfaction. In other words, the agitation of the needs/instincts requires a solution, namely an economic system, whereas the means of satisfaction is related to the subject of economic science.

Hence since the pivots of any economic system are based upon ownership, disposal and distribution, Islam being the system of the creator, stipulated in the realm of possession/ownership, utilisation and distribution.On the other hand, man was given permission/recommended to explore the realms of the economic sciences, which are related to production.

Ownership in Islam

Therefore, ownership in Islam is the permission of the Legislator to benefit from an asset. Private ownership is determined by the Shar’i rule; this ascribes an asset or a benefit to an individual, thus enabling him to benefit from the asset itself. Hence, ownership cannot be asserted unless proven by the Shar’i rule. Thus, the right to own a thing does not arise from the thing itself or from the fact that it is beneficial as for the capitalists.Ownership in Islam means the right of disposal. The individual has authority over the thing that he owns. It enabled him to freely dispose of it and benefit from what he owns according to the Shar’i rules. It also obliged the state to protect private ownership and laid down punishments to deter those who infringe upon the ownership of others.

Islam & Intellectual Property

The reality of intellectual property as defined earlier consists of two elements:One of them is sensed and tangible such as a trademark and a book. The second is sensed but not tangible such as a scientific theory and an idea of an invention stored in the brain of a scientist.

Thoughts are not subject to ownership. However any idea originates from mans mind, hence his mind is the initial ‘home’ for any particular thought from the perspective of reality. Thus he can ignore it or dispense it seeking a material value. However, once dispensed it is haram to copyright it as this is an invalid contract, or patent it as this is not subject to ownership according to the Shar’a and patents are an exclusive monopoly given to the patent holder and monopolies are haram. On the other hand trademarks are sensed, tangible, and have a material value because it is a component of the trade.

Therefore, it is allowed for the individual to own it and the state is obliged to protect this right of the individual. He will be able to freely dispose of it, and others will be prevented from infringing upon this right.

Current Reality in Muslim Lands

In politics, economic dependency is synonymous to political subservience. America’s economic strength has given it an unparalleled leverage to subvert nations & approve policy. The track record of Pakistan and other Muslim states are all poignant testimonies to this.The non-ideological Kufr systems within the Muslim lands are all signatories of WIPO and are members of the WTO. This means that they officially recognize and must enforce intellectual property rights.

A brief study of the impact of intellectual property on the so-called ‘developing nations’ has already been outlined, however in the context of the Muslim countries a brief case study of Pakistan provides a good example.

Pakistan

Pakistan has been on the U.S. Trade Representative “Special 301” watch list since 1989 due to widespread piracy, especially of copyrighted materials and slow efforts to implement its patent.For example according to a U.S. report, “The impact on U.S. exports of only weak IPR protection in Pakistan is substantial, though difficult to quantify. In the area of copyright infringement alone, the International Intellectual Property Alliance estimated that piracy of films, sound recordings, computer programs, and books resulted in trade losses of $62 million in 1994.”

Pharmaceutical Industry

Medicines have become the latest among Indian imports. Under Pakistani law, only medicines that are approved and registered with the health department can be sold in the country. This is largely because Indian drugs can be 10 times cheaper than those manufactured in Pakistan by the same multinational companies (MNCs).Medicines from India are becoming even more popular in this country as Pakistan’s Ministry of Health seeks a 6 to 10 percent increase in drug prices due to various economic factors.

Agricultural Industry

Pakistan’s agricultural industry accounts as one of its largest export markets. Multi national cooperates like Monsanto control world markets through patents on genetically modified seeds, food etc.The result will be that third world peoples like Pakistan actually have to pay to use seeds and other genetic materials that have been freely available to them for centuries.

The Khilafah & Intellectual Property

The period prior to the development of intellectual property was seldom scarce of innovations. During the glorious history of the Khilafah, Spain, Baghdad and Damascus were centres of medicine, physics, astronomy, optometry, and pharmacology, to name but a few sciences.

Since Islam does not recognise intellectual property or copyright, the Khilafah state will immediately repudiate such laws and enforcements by politically withdrawing from the colonialist’s institutions of the WTO and UN.The implications for the Khilafah state, the developing world and the capitalists states will inevitably be prolific and numerous. Below are presented some possibilities for illustration.

Socio-economic, Political, & Intellectual ImplicationsInternational Politics:

The greatest implication for the world will be the presence of a practical alternative to Capitalism. Challenge to the American hegemony will be at the forefront, as she is the world’s policeman. Although America will retain its support with the Western states, the state will raise immediate international opinion against her through a multitude of mediums.

The Khilafah should be able to influence and win leadership over the developing world including the Muslim states, as it these states which have long suffered from intellectual properties. World opinion will be challenged and divided.

Economics:

We will openly repudiate international patents on the world arena and initiate copying, developing and selling medical drugs, software, etc to other countries for lower prices and political aims.This should see the inauguration of the collapse of the capitalist multi-corporate monopolies. Such fierce and aggressive competition should shatter the volatile economy of the West, beginning with the loss of confidence, wiping millions of the market value, forcing out investors/shareholders. Increased competition and a decline of prices an inevitability.

Intellectual Wealth & Progress:

Research will once again flourish beyond the capitalist states. Innovation, science and technology would be encouraged and developed using current knowledge irrespective of intellectual property.Non-ideological & subservient nations will become revitalized nations, referring to the Islamic ideology to solve their problems. Hence not only will material wealth flourish, but intellectual wealth will develop.

Defence/Military research & Heavy Industry:

Education, in terms of research level, at university, will develop as the state initiates its policy of da’wah and removing all material obstacles in the path of the da’wah through Jihad.Heavy industry the cornerstone for any nation will be linked to the policy of Jihad & da’wah.

In conclusion, as has been demonstrated, the spectre of colonialism manifests itself in a new guise a style far more discerning than the then archaic physical colonisation. After these nations had gained ownership of technology, the knowledge relating to industry, and production of goods and services, they imposed their laws to hoard this knowledge and prevent other nations from benefiting from them.

The laws of protecting intellectual property are one of the styles of economic and cultural colonialism imposed by the capitalist superpowers on the states of the world and its peoples via the World Trade Organisation and only the Khilafah will bring the alternative system capable of challenging the Kufr.

Shaban Ul-Haq

source provided for by http://www.clashofcivilisations.com/html/intellectual_property.htm