Chapter Three the Place of Intellectual Property in Islamic Shari'a

PROTECTION OF INTELLECTUAL PROPERTY IN ISLAMIC SHARI’A AND THE DEVELOPMENT OF THE LIBYAN INTELLECTUAL PROPERTY SYSTEM

Ezieddin Mustafa Elmahjub

Bachelor of Laws (Tripoli University) Master of Laws in Intellectual Property (WIPO/QUT) Master of Civil Law (Tripoli University)

Submitted in fulfilment of the requirements for the degree of

Doctor of Philosophy

Faculty of Law

Queensland University of Technology

2014

Dedication

For my mother, who fought to get me into school and taught me to love knowledge.

For my father, brothers, sisters and my wife who offered unlimited encouragement and support.

ABSTRACT

This thesis introduces a comprehenisve theory on intellectual property law and Islamic Shari’a. The sources and objectives of Islamic Shari’a support the theoretical framework underpinning intellectual property laws. However, they strongly emphasise the importance of development goals in intellectual property law and policy making.

This thesis argues that various aspects of the currently dominant international intellectual property systems are not consistent with Islamic Shari’a. In order to design intellectual property laws that are consistent with Shari’a and promote development, policy makers need to go beyond the utilitarian theories which dominate intellectual property law making worldwide. This thesis develops a normative framework based on the principles of Islamic Shari’a relating to the private ownership of ideas and expressions, distributive justice, the dissemination of knowledge, and limits on the exercise of property rights.

Applying this normative framework, the thesis proposes a range of policy and legislative features of an intellectual property system that aligns with the principles of Islamic Shari’a. The thesis identifies four main proposals supported by Islamic Shari’a’s normative framework. An optimal IP system from an Islamic perspective will recognise the role of the public domain; conceptualise users’ rights to access and reuse culture and knowledge; consider alternative modalities of knowledge production and promote the dissemination of knowledge; and adopt Access to Knowledge (A2K) initiatives and policies.

This thesis takes Libya, as an Islamic and developing country, as a case study to implement Shari’a-friendly and development oriented intellectual property system.

ACKNOWLEDGEMENTS

I thank Allah for giving me patience, motive and assistance to write this thesis. I thank also Libya for providing me with the resources to come to Australia and undertake a PhD project in Brisbane for the past four years.

Professors Brian Fitzgerald and Anne Fitzgerald, my supervisors, were the persons who welcomed me first to QUT Law School. They offered unlimited guidance and assistance to make my work come into its current shape. I will remember their contributions for many years to come.

I’m also indebted to Professor Ismail Albayrak for his valuable comments on the early drafts of this thesis and for his unlimited moral support for me.

Dr Nic Suzor made me think very carefully about my arguments in this thesis through his relevant and insightful comments on the early drafts of this thesis. Therefore, I’m so grateful for him.

I would like also to thank all those who read this thesis and commented on its early drafts, particularly Dr Rami Olwan, Professor Eugene Clark, Dr Dimitrios Eliades, Kylie Papparando and Mahmoud Elsheikh.

I felt at home at QUT. When my salary was suspended during the Libyan revolution in 2011, QUT supported me for six months. I’m so grateful for QUT. Particularly, I would like to thank Professor Acram Taji for assisting me to get offer from QUT and for caring for my project for the last 4 years. I would like also to thank the staff at the QUT Law School, particularly Maxine Brown and Leana Sanders.

I would like also to thank Christina Koch for reviewing the editing this thesis.

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QUT Verified Signature

Table of Contents

Abbreviations

Romanisation of Arabic Letters

Glossary

Chapter 1: Introduction to Thesis

1.1.1 Research in Context…………………………………………………1

1.1.1.1 Introduction………………………………………………………….1

1.1.1.2 Research Questions………………………………………………….2

1.1.1.3 Relation to Published Research……………………………………..6

1.1.1.4 Contribution and Importance………………………………………..9

1.1.1.5 Scope and Limitations………………………………………………11

1.1.1.6 Structure of Thesis’s Argument…………………………………….14

1.1.2 Methodology………………………………………………………..16

1.1.3 Thesis Structure…………………………………………………….18

Chapter 2: Relevance of Islamic Shari’a to Modern Time

2.1.1 Introduction ………………………………………………………..21

2.1.2 Emergence of Islamic Shari’a…………………………………..….21

2.2 Islamic Law, Islamic Jurisprudence and Islamic Shari’a………….24

2.3 Sources of Islamic Shari’a……………………………………....…27

2.3.1 Primary Sources……………………………………………………27

2.3.1.1 The Qur’an…………………………………………………………27

2.3.1.2 The Sunnah……………………………………………………..... 28

2.3.1.3 Ijma’ (Scholarly consensus)………………………………………...30

2.3.2 Secondary Sources…………………………………………………31

2.3.2.1 Qiyas (Analogy)…………………………………………………...….31

2.3.2.2 Maslaha Mursala (Consideration of Public Interest)……………..… 32

2.3.2.3 Istihsan (Juristic Preference)…………………………………….…...34

2.3.2.4 Istishab (Presumption of Continuity)…………………………….…..35

2.3.2.5 Urf (Custom)………………………………………………………....36

2.4 The Role of the Sources in Modern Time…………………………....37

2.4.1 The Ultimate Purpose of Islamic Shari’a………………………….…37

2.4.2 The Nature of the Divine Revelation……………………………...... 38

2.4.3 The Means of Adaptation…………………………………………....39

2.5 The Place of Islamic Shari’a in Modern Legal Systems…………...... 42

2.5.1 Sphere of Influence…………………………………………………..42

2.5.2 The Practical Role of Islamic Shari’a…………………………….….43

2.5.2.1 Place of Shari’a in Selected Jurisdictions…………………………....43

2.5.2.3 Place of Islamic Shari’a in Libya………………………………...... 44

2.6 Conclusion…………………………………………………………... 45

Chapter 3: The Place of Intellectual Property in Islamic Shari’a

3.1 Introduction……………………………………………………….....47

3.2 Intellectual Property Status in Islamic Jurisdictions……………..….48

3.3 Creativity and its Protection in Islamic Civilisation………………....51

3.3.1 Position of Authorship (Ta’līlf) in Islamic Civilisation…………...... 53

3.3.2 Islamic Institutions Promoting Creativity………………………....…56

3.3.2.1 Bayt al-Hikma (House of Wisdom)………………………………….57

3.3.2.2 Dār al-’ilm (House of Knowledge)…………….………………….…58

3.3.2.3 The Library of Cordoba…………………………………..……...…..60

3.3.3 IP-like Enforcement Authorities in Islamic Civilisation …………….60

3.4 Arguments Regarding the Legitimacy of IP under Islamic Shari’a….62

3.4.1 Opponents of IP Protection…………………………………………..62

3.4.1.1 Objections to Intellectual Property………………………………..…64

3.4.1.2 Intellectual Property and the Concealment of Knowledge……….….64

3.4.1.3 Islamic Shari’a and Intellectual Property Subject Matter……….…...67

3.4.1.3.1 Copyright………………………………………………………….…..68

3.4.1.3.2 Patent…………………………………………………………..….…..68

3.4.1.3.3 Trademarks………………………………………………..…….….....69

3.4.1.4 Intellectual Property and Maysar………………………………..…..70

3.4.1.5 Indefiniteness (Gharar) and Intellectual Property…………….….....71

3.4.1.6 Inheritance (Mīrath) and Intellectual Property……………………....73

3.4.2 Proponents of Intellectual Property Protection……………………...74

3.4.2.1 The Position of Intangible Property in Islamic Shari’a……..……….74

3.4.2.2 Generation of Wealth………………………………………..……….76

3.4.2.3 Legitimate Labour in Islam and Intellectual Property…………….....76

3.4.2.4 Productivity in Islam and Intellectual Property…………………...…77

3.4.2.5 Islamic Shari’a Condemns Deceitful Practices……………………....78

3.4.2.6 Islamic Law of Contract and IP……………………………………...80

3.4.2.7 Support of IP in the Non-Textual Sources………………………..….81

3.4.2.7.1 Istishab and IP…………………………………………………….....81

3.4.2.7.2 Maslaha Mursala and IP………………………………………….....81

3.4.3 Similarities between Islamic and Western Theories……………..…..85

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3.4.3.1 Justification of Property in the West……………………………..….85

3.4.3.2 Justification of Property in Islamic Shari’a…………………….…....87

3.4.3.3 “Common Terms” ……………………………….………….……....90

3.5 Evaluation of the Existing Literature on IP and Islamic Shari’a…....94

3.6 Conclusion………………………………………………….….…….95

Chapter 4: Rethinking the Relationship between Intellectual Property and Islamic Shari’a

4.1 Introduction…………………………………………………….…..99 4.2 The Scope of Public Interest: Public Interest as Development …....100

4.2.1 A Secular Perspective on Development……………………....…...101

4.2.2 The Islamic Perspective on Development………………….….….104

4.2.3 Maslaha Mursala, Public Interest and Development……….…….106

4.2.4 The Role of Maslaha Mursala………………...….………….…....109

4.3 The Current IP System and Islamic Shari’a ………………...... 114

4.3.1 Absence and Pressure…………………………………….…..…...116

4.3.2 Was IP necessary for Development………...………………….....124

4.3.3 IP and the Essential Measures of Development…………….…....128

4.3.3.1 IP and Public Health………………………………………..……132

4.3.3.3 IP and Access to Educational Materials…..……………………...137

4.3.3.3 Digital Learning and International IP System……….………..….144

4.3.3.4 IP and Economic Growth…………………...……..……………..148

4.3.3.5 Concluding Remarks on IP, Development and Islamic Shari’a...... 153

4.5 Conclusion…………………………………………...…….…...... 154

Chapter 5: Integrating Intellectual Property into Islamic Shari’a

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5.1 Introduction…………………………………………………….…155

5.2 Beyond the Incentive Rhetoric……………………………….…….156

5.2.1 Critique of the Incentive Rhetoric………………………………….158

5.2.1.1 Psychology vs. IP’s Incentive Theory……………………………...158

5.2.1.2 The Incentive of Monopoly vs. the Power of Openness…………...162

5.2.1.3 The Example of Cyberspace…………………………………….…166

5.2.2 The Way Forward………………………………………………….171

5.3 Regulating IP from Islamic Perspective: Five Principles ………...172

5.3.1 Stewardship (Khilafah)…………………………………………….174

5.3.2 Non-concentration Principle…………………………………….....178

5.3.3 Social Justice……………………………………………………….182

5.3.4 Doctrine of Abuse of Right in Islamic Shari’a…………………….190

5.3.5 Dissemination of Knowledge……………………………………...192

5.4 Conclusion: Implementable Standards…………………………….194

Chapter 6: A Road Map for a Shari’a-friendly IP System

6.1 Introduction………………………………………………….…….197

6.2 Expanding the Public Domain……………………………………..199

6.2.1 Anti-enclosure Policy……………………………………………...200

6.2.1.1 The State of Play…………………………………………………...201

6.2.1.2 Implemeting Anti-enclosure Policy………………………………..209

6.2.2 Examples for Legislative Reforms to Expand the Public Domain....212

6.2.2.1 Reduced Term of IP Protection…………………………….……...213

6.2.2.2 Re-Imposing Copyright Formalities……………………….….…....217

6.2.2.3 Re-Crafting Exclusive Rights………………………………….…..221

6.2.2.3.1 Redefining Exclusivity……………………………….…………....222

6.2.2.3.2 Eliminating the Exclusive Right to Reproduction……………....226

6.2.2.3.3 Derivative Works…………………………………………….….228

6.2.3 Supplementary Mechanisms…………………………………….231

6.3. Users’ Rights from Social Justice Perspective………………….234

6.3.1 Social Justice, Digital Environment and IP Bargain……….……236

6.3.2 Doctrinal Shift: From Exceptions to Rights…………..………….238

6.3.3 Empowering Users…………………………………….………...240

6.3.3.1 Recognizing Users………………………………………….……240

6.3.3.2 Public Fair Use Right………………...…………………………..241

6.3.3.3 The Right to Circumvent…………………………………..……..246

6.3.3.4 Protection from Shrink-wrap Licenses………………………..….248

6. 3.3.5 Protection against Copyfraud……………………………...……..249

6.4 Collaborative Modalities of Knowledge and Cultural Production …………… (Intellectual Takaful) ….…………………………………………..250

6.4.1 Collective Action and Knowledge Production……………..…….252

6.4.2 Cooperation through Technology……………………….……..….254

6.4.3 Compatibility with Islamic Shari’a………………….……….…....257

6.5 A2K and Islamic Shari’a………………………………….…..…...259

6.6 Conclusion………………………………………………...……....267

Chapter 7: The Intellectual Property System in Libya and Promoting Innovation

7.1 Introduction……………………………………………….…...….269

7.2 Context: IP in the Arab World………………………….……..…..270

7.2.1 Historical Background……………………………….………....…271

7.2.2 Current Status……………………………………………………...274

7.3 The IP System in Libya……………………………………………278

7.3.1 An overview of Libyan IP System……………………………...…280

7.3.1.1 Copyright………………………………………………………….280

7.3.1.1.1 Scope of Protection and Subject Matter…………………………...281

7.3.1.1.2 Author’s Exclusive Rights…………………………………………283

7.3.1.1.3 Exceptions and Limitations………………………………………...286

7.3.1.1.4 Duration of Protection……………………………………………..289

7.3.1.1.5 Infringement and Remedies………………………………………..290

7.3.1.2 Patent……………………………………………………………...291

7.3.1.2.1 Patentability……………………………………………………….292

7.3.1.2.2 Duration of Protection………………………………………….…292

7.3.1.2.3 Limitations on Patentee’s Exclusive Rights……………….….….293

7.3.1.3 Trademarks………………….…………………………………….295

7.3.2 Policy Directions……………………………………………….…296

7.3.2.1 The Path to TRIPs Standards……………………………………..296

7.3.2.2 The Path to TRIPs-Plus, EU-Libya FTA…………………………300

7.3.2.3 New IP Law Project…………………………………………….…306

7.3.2.4 Evaluation of Policy Directions………………………………..….308

7.3.3 Policy Recommendations…………………………………………309

7.3.3.1 Policies related to IP Laws………………………………………..309

7.3.3.1.1 Construction of a Shari’a-friendly IP System……………………..310

7.3.3.1.2 An Evidence-based Approach……………………………………..310

7.3.3.1.3 Libyan Development Agenda on IP…………………….………....311

7.3.3.1.3.1 Understanding the Development Dimension…….………….……...312

7.3.3.1.3.2 Interaction with the WIPO Development Agenda………….….……313

7.3.3.1.4 User rights…………………………………………………….……318

7.3.3.1.5 Strengthen Domestic Competition Policy………………….….…...320

7.3.3.1.6 Embrace the Internet as a Catalyst for Creativity……………...…...321

7.3.3.1.7 Localising the Flexibilities of International IP System……….....…322

7.3.3.1.8 A2K as National Policy Objective…………………………..….…..324

7.3.3.1.9 Creative Takaful Fund……………………………………….….….325

7.3.3.2 National Innovation Strategy………………………………….……327

7.3.3.2.2 The State of Play………………………………………………....…327

7.3.3.2.2 Adopting NIS………………………………………………….……330

a) Invest in Human Capital…….…………………………………….….…….330 b) Reconstruct the National Research Infrastructure………………….………331 c) Revolutionise ICT Sector………………………………………...….……...331 d) Acquiring Knowledge Developed Abroad………………………….……...332 e) Support Innovation based Incubators…………………………...…….……332 f) Patent Mining………………………………...…………………………….333 g) Promote Knowledge Flow and Networking………………………….…….333 h) Institutional Structure to Manage NIS…………………………………….335

7.4 Conclusion…………………...…………………………………….….336

Chapter 8: Conclusions and Future Work

8.1 Re-directing the Path for Research on IP and Islamic Shari’a………..337

8.2 Islamic Shari’a and the Theory of IP…………………….………..…..338

8.3 Islamic Shari’a and the Currently Dominant IP System……………...339

8.4 A Shari’a-friendly IP System…………………………………………340

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8.5 Implementation of a Shari’a-friendly and Development-Oriented IP …………. System in Libya …………………………………………………....…342

8.6 Future Work……………………………………………..….…...... 343

Bibliography……………………...… …………………………………….…...347

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Table of Abbreviations

A2K Access to Knowledge

Alecso Arab League Educational, Cultural and Scientific Organization

CC Creative Commons

EC European Commission

EU European Union

FDI Foreign direct investment

FOSS Free Open Source Software

FTAs Free Trade Agreements

GCR Global Competitiveness Report

ICT Information and communication technology

IP Intellectual Property

NASR National Agency for Scientific Research

NDCs Now developed countries.

NIS National innovation strategy

OA Open Access

OCL Open Content Licenses

OER Open Educational Resources

PSI Public sector information

SMEs Small and medium enterprises

TPMs Technological protection measures

TRIP Trade Related Intellectual Property Aspects

UNESCO United Nations Educational, Scientific and Cultural Organization

UN United Nations

WCT WIPO Copyright Treaty

WHO World Health Organisation

WPPT WIPO Performers and Phonograms Treaty

WTO World Trade Organisation

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Glossary

 Al-Aslu fi al-ashya al-ibahaha: all actions are permissible unless stated (in the Islamic sources) otherwise.  Al-diyah ala al-ʿaqila: where the family of the killer in an accident is required to support in paying the compensation to the family of the deceased.  Al-fiqh al-islami: Islamic Jurisprudence.  Al-kharaj bi al-dhaman: Islamic legal rules which dictates that “revenue goes with liability”.  Al-qānūn al-islami: Islamic law.  ʿamal: labour.  ʿaql: intellect/ mind.  Asr al-jumūd wa al-taqlīd: the period of stagnation and imitation.  Asr al-Madhāhib: era of legal school of thoughts.  Ayat: verses.  Dīn: religion.  Ihyā’ al-mawāt: developing or improving a vacant land.  Fa’īda: interest on banking transactions.  Fatwa: a legal opinion based on Islamic sources.  Gharar: Sale by speculation or indefiniteness  Hadīth : literally "speech", recorded saying or tradition of the Prophet Muhammad.  Hanafi: one of the main four schools of jurisprudence within Sunni Islam. The Hanafi school is named after the scholar Abū Ḥanīfa an-Nu‘man ibn Thābit (d. 767 CE).  Hanbali: one of the main four schools of jurisprudence within Sunni Islam. The jurisprudence school traces back to Ahmad ibn Hanbal (d. 855).  Haq: right, entitlement  Haram: unlawful  Hisbah: Islamic institution dedicated to preserve ethical Standards in the market place and beyond.  Hukm: a ruling  ʿibadat: devotions.

 Ijāza: approval/ authorisation.  Ijma’: consensus.  Ijtihad: self-exertion/ legal reasoning.  ‘illa: effective cause.  ‘ilm al-jarah wa al-taadeel: science of Hadīth authentication  ‘ilm: knowledge/ science.  Isnad: chain of narrator/ reporters  Istihsan: juristic preference  Istishab: presumption of continuity.  Istisna’: a contract of exchange with deferred delivery or manufacture contract.  Izhar al-Haq: revealing truth.  Jahiliyya: the time of ignorance before the emergence of Islam.  Khilafah: stewardship  Khulafa al-rashidun: the righteous successors of the Prophet, namely: Abu Bakr, Umar, Uthman ibn Affan and Ali.  Ihtikar: monopoly.  Madhāhib: Schools of Islamic Jurisprudence  Mal: anything which can be owned/ wealth.  Maliki: one of the main four schools of jurisprudence within Sunni Islam. It was founded by Malik bin Anas (d. 795).  Manfa’ā: usufructuary rights/ intangibles.  Maqasid al-Shari’a: the objectives of Islamic Shari’a.  Masalih dāruriyyah: essentials interests  Masalih hajiyyah: complementary interests  Masalih tahseniyya: embellishments  Maslaha mursala: the consideration of the public interest as foundation for legal rules.  Mīrath: inheritance  Mua’ malat: transactions.  Mubah: permissible/commons.  Muhatsib: a supervisor of Islamic ethics.

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 Mujtahidūn: qualified Muslim scholars who use reason for the purpose of forming an opinion or making a ruling on a religious issue.  Nafs: life  Nasl: lineage  Qat’i: definitive or self-evident  Qiyas: analogical reasoning  Riba: usury/interest, the charging and paying of which is forbidden by the Qur'an.  Sadaqah: charity  Shafi’i: one of the main four schools of jurisprudence within Sunni Islam. It was founded by Muhammad ibn Idris al-Shafi‘i (d. 820).  Shura: consultation  Sunnah: the "path" or "example" of the Prophet Muhammad, i.e., what the Prophet did or said or agreed to during his life. He is considered by Muslims to be the best human moral example, the best man to follow.  Suq: marketplaces  Sura: chapter the Qur’an.  Takaful: cooperation/ collaboration.  Ummah: Islamic community.  Urf: custom.  Waqf: an endowment made by a Muslim to a religious, educational, or charitable cause.  Zakat: compulsory almsgiving.  Zanni speculative.

Note on Romanisation of Arabic

1- The romanisation of Arabic letters follows the Oxford System.

2- Arabic terms are italicized

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Chapter One

Introduction and Context

1.1 Research in Context

1.1.1 Introduction

This thesis examines the interaction between Islamic Shari’a and intellectual property systems. Its central focus is the extent to which current intellectual property concepts and systems are compatible with the objectives of Islamic Shari’a and the Islamic perspective on the public interest. In doing this, this thesis not only tackles the question of the compatibility of intellectual property with Islamic Sharia, but also introduces a detailed road map for constructing intellectual property laws and policies that are both compatible with Islamic Shari’a and promote development in Islamic countries. Throughout this thesis, the term “Shari’a-friendly intellectual property system” is used to refer to a body of laws, regulations and policies that is responsive to and compliant with the sources, objectives and principles of Islamic Shari’a.

Islamic Shari’a encompasses the religious and legal traditions based on the Qur’an, the teachings of the Prophet (the Sunnah) and the secondary sources derived from these primary sources. The sources of Islamic Shari’a contain general principles which can be adapted to changes in time and place. Over the years, scholars of Islamic Shari’a have developed various mechanisms to relate it to social and economic changes in Muslim societies.

To varying degrees, the sources and principles of Islamic Shari’a affect culture and law-making in 57 counties worldwide.1 Far from being an ancient faith system, it is an influential set of rules and philosophies, the scope of which extends beyond religious duties to regulating marriage and what to eat and wear. One of the fundamental domains of Islamic Shari’a is regulation of the process of law-making in Muslim societies. It can operate as a normative framework for law-making in different fields of law, including intellectual property.

1 According to the Organisation of Islamic Cooperation (OIC), Islam is the predominant religion in 57 countries around the world, OIC, Member States http://www.oic-oci.org/member_states.asp

Intellectual property laws, which define rights in innovation, are an important part of modern legal systems. They have assumed a significant role in the knowledge economy, which is a driving factor of social and economic progress. All Islamic countries are developing countries. They need to be integrated into the new knowledge economies to promote overall socio-economic development. An important step towards that end is the introduction of intellectual property systems that are suitable to their level of development and cultural context.

This thesis builds on the widely accepted assumption that laws - including intellectual property laws - are sensitive to their local and cultural context. 2 Therefore, an understanding of Islamic Shari’a’s stance in relation to intellectual property will contribute to designing intellectual property laws that are suited to the local and cultural context in countries with predominantly Islamic populations. The introduction of intellectual property laws consistent with the cultural context in Islamic countries will contribute to better regulation of the knowledge economy in these countries.

This thesis does not claim that Islamic Shari’a will invent a new intellectual property system. Rather, the aim is to identify the factors which need to be considered in designing intellectual property systems for countries with Islamic cultural backgrounds. From this perspective, the thesis considers secular intellectual property scholarship in order to identify an optimal intellectual property system from an Islamic perspective. It then introduces specific policy recommendations to be implemented in Libya, which is used as a case study in this thesis.

1.1.2 The Research Questions

This thesis adopts a holistic approach towards the study of the interaction between Islamic Shari’a and intellectual property concepts. It introduces an Islamic perspective on the ownership of ideas and expressions; evaluates, from an Islamic perspective, the dominant applications of intellectual property laws; and introduces policy measures and recommendations for designing intellectual property laws that are compatible with Islamic Shari’a. In doing this, the thesis addresses three main questions:

2 Patrick Glenn, Legal Traditions of the World (Oxford University Press New York, 3rd ed, 2007).

(1) What is the relationship between Islamic Shari’a and modern intellectual property systems, both in terms of theory and practice?

(2) Do the sources, objectives and principles of Islamic Shari’a inform policymakers in Islamic countries on the best policy measures to adopt in designing Shari’a-friendly intellectual property laws?

(3) Would Shari’a-friendly intellectual property laws assist in promoting the progress and development of Islamic countries?

In addressing these three principal questions, the following sub-questions will be considered:

a) Is Islamic Shari’a relevant in the modern era? Does it have a place among the sources of law in countries with predominantly Islamic populations?

b) How do the sources of Islamic Shari’a interact with established notions of intellectual property?

c) How do the sources and objectives of Islamic Shari’a view the current systems of intellectual property as laid down in the international intellectual property conventions and policymaking?

d) Are there any principles in Islamic Shari’a that may contribute to designing intellectual property laws that are more responsive to its sources and objectives?

e) Are there themes and concepts in modern intellectual property jurisprudence and/or civic practices relating to the regulation of knowledge and cultural production and dissemination that may assist in designing an intellectual property system that is compliant with Islamic Shari’a?

f) Is it possible to implement an intellectual property system compliant with Islamic Shari’a in the case study of Libya?

In answering these questions, this thesis identifies the sources and objectives of Islamic Shari’a that are relevant to intellectual property. These sources and

objectives are used to introduce theoretical justifications for intellectual property and evaluate the currently dominant models of intellectual property from an Islamic perspective. This thesis develops a normative framework based on the principles of Islamic Shari’a relating to the private ownership of ideas and expressions, distributive justice, the dissemination of knowledge, and limits on the exercise of property rights. This framework emphasises the necessity of a fair and efficient intellectual property system, one which reinforces the importance of promoting openness and achieving a fairer distribution and greater dissemination of knowledge and cultural resources. It emphasises the need to avoid the unfair concentration of knowledge resources and excessive restrictions on their use and re-use.

Applying this normative framework, the thesis proposes a range of policy and legislative features of an intellectual property system that aligns with the principles of Islamic Shari’a. Drawing on the international intellectual property scholarship, the thesis identifies four proposals supported by Islamic Shari’a’s normative framework for a fairer and more efficient intellectual property system. An optimal IP system from an Islamic perspective will recognise the role of the public domain; conceptualise users’ rights to access and reuse culture and knowledge; consider alternative modalities of knowledge production and promote the dissemination of knowledge; and adopt Access to Knowledge (A2K) initiatives and policies.

In this research, Libya is used as a case study for implementing a Shari’a-friendly intellectual property system. Libya has been chosen as case study not only because this research is funded by the Libyan Government, but also for various reasons that are related to the subject and importance of the thesis. These reasons include:

Firstly, this thesis aims to design an Islamic theory of intellectual property. Islamic Shari’a strongly influences law making and culture in Libya, where the overwhelming majority of the population are Muslims. 3 Additionally, since the

3 The Statistics Book of 2009 which surveys population in Libya does not indicate the exact percentage of Muslims in Libya. General Authority of Information, Statistics Book 2009, http://www.gia.gov.ly/includes/FCKeditor/upload/pdf/kt2009.pdf. However the CIA World Factbook estimates the percentage of Muslim population in Libya to be 97%. CIA, World Factbook available online at: https://www.cia.gov/library/publications/the-world-factbook/geos/ly.html. One scholar of Libyan Law observes that laws which are Shari’a compliant are publicly respected and effectively enforced by the Libyan authorities; a very good example in Libya is the Law No 86/1972 banning interest on banking transactions (fa’ īda) among natural persons. On the other hand, some laws which are deemed to be inconsistent with Shari’a or have an alternative system under Shari’a are not wholly respected and are weakly enforced by the authorities; an example of the later is the Tax Law which

inception of the modern Libyan state in 1951, Islamic Shari’a has played an essential role as the main source of legislation.4 Therefore, Libya is an ideal case study for implementing a Shari’a-friendly intellectual property system, which will be better suited to the cultural context than other systems adopted under the colonial regime or designed in a different cultural or ideological environment and implanted in Libya. However, the findings of this research will be relevant to all countries where conditions are similar to those in Libya, specifically, countries where Islamic Shari’a influences the formation of law and culture.

The second reason for Libya’s suitability as a study is the current status of Libyan intellectual property laws. These laws were introduced in the 1950s and 1960s. There have been various efforts to reform these laws.5 With the radical regime change that occurred in 2012, the place of Islamic Shari’a as the supreme source of legislation has been re-affirmed.6 The opportunity now exists for this thesis to introduce to Libyan law and policymakers a set of useful recommendations for reform of the Libyan intellectual property laws so as to make them compatible with Islamic Shari’a.

Thirdly, as Libya is a developing country, the need for sustainable development strategies dominates official and public discourse. One of the main arguments put forward in this thesis is that the Islamic perspective on intellectual property contributes to designing intellectual property laws that are development-oriented. As both a developing country and an Islamic country, Libya will benefit from the Islamic perspective on intellectual property and development introduced in this

has counterpart in Shari’a known as zakat Muhammed Aljelani ‘Lectures on Commercial Law for Postgraduate Students at Tripoli University’ (Unpublished Material 2007). 4 The Importance of Shari’a as a source of legislation is discussed in the Chapter 2. 5 Various decisions have been issued to reform Libyan IP laws. These include: National Agency of Scientific Research, Decision no159/2003 Forming a Special Committee to Reform Libya’s Industrial Property Law and Decision no170/2003 Forming a Special Committee to Reform Libya’ s Copyright Law (on file with author). These two decisions were supplemented by Decision no19/2005 issued by National Office of Research and Development for the reform of Libyan IP laws. The latter decision assembled the work of the two previous committees into one committee to draft a unified IP law. This draft is discussed in detail in Chapter 7. 6 The enactment of laws and regulations compatible with Islamic Shari’a is becoming a national policy objective after the Libyan Uprising of 2011. On 9 November 2013, the Minister of Justice issued Decision no 1621/2013 to form a committee to ascertain that laws and regulations in Libya are consistent with the sources and principles of Islamic Shari’a. See Ministry of Justice, Decisions http://www.aladel.gov.ly/main/modules/news/article.php?storyid=634

thesis. Moreover, this perspective will benefit the international debate on IP and development in Islamic developing countries and beyond.

1.1.3 Relationship to Published Research

Generally speaking, research on intellectual property and religion is not common, for various reasons. Firstly, intellectual property laws have only relatively recently been introduced in many countries. They became part of international legal regimes in the late 19th century with the adoption of the Paris Convention on Industrial Property in 18837 and the Berne Convention on the Protection of Literary and Artistic Works in 1886. Intellectual property laws continued to develop gradually until they gained unprecedented momentum following the adoption of the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPs) by the members of the World Trade Organisation (WTO) in 1994.8 Secondly, and more importantly, in many countries worldwide religion has ceased to play any significant role in the process of law- making. However, this is not the case for Islamic Shari’a, which continues to play a very important role in law-making and enforcement in most jurisdictions with a predominantly Islamic population.

Literature dealing with the position of Islamic Shari’a regarding intellectual property is scarce. The body of literature examined for this research (whether in its Arabic9 or English10 versions) reveals a shared subject of interest, which has been the focus of investigation of the overwhelming majority of commentators. The issue that has usually been addressed by commentators is whether it is permissible, according to Islamic Shari’a, to regulate intellectual property within the legal systems of Islamic countries. This question was first investigated in an academic work by Fathi al-Dirini

7 The Paris Convention on Industrial Property 1883 http://www.wipo.int/treaties/en/ip/paris/pdf/trtdocs_wo020.pdf 8 Trade Related Aspects of Intellectual Property (TRIPs) Agreement,1994 http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm 9 See for instance: Fathi al-Dirini, Haq al-ibtikar fi al-fiqh al-islami al-muqāran (al-Risāla Foundation1977); Abdul-Same’ Abu al-Khīr, al-haq al-mali li al-Mu’alif fi al-fiqh al-islami wa al- Qanūn al-mesri (Wahba Library,1988). 10 See for instance: 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); John Carrol, ‘Intellectual Property Rights in the Middle East: A Cultural Perspective’ (2001) Fordham Intel. Prop, Media and Ent. L. J Vol 14; David Price, ‘The Dynamics of Intellectual Property Protection in the Arab Gulf States’ (2007) 3 (1) International Review of Business Research Papers; Chad M. Cullen, ‘Can TRIPS Live in Harmony with Islamic Law? An Investigation of the Relationship between Intellectual Property and Islamic Law’ (2010) SMU Sci. and Tech. L. Rev 15.

in 1977,11 and subsequent studies have enlarged the scope of the al-Dirini’s initial question. The commentators offer similar justifications and reach similar conclusions to show that Islamic Shari’a supports the recognition, protection and enforcement of intellectual property.12

More ambitious research was carried out by Ida Madieha Bt. Abdul Ghani Azmi in a PhD thesis submitted in 1996.13 Dr Azmi’s research sought to provide a conceptual framework for the regulation of intellectual property from an Islamic perspective, both in terms of its recognition and enforcement as well as its scope and limitations. However, Dr Azmi’s research was primarily concerned with the situation in Malaysia and did not comprehensively consider intellectual property in the international context. Additionally, significant developments in IP jurisprudence and regulation since 1996 may require some of Dr Azmi’s research findings to be revisited.

The main critique of the existing body of research is its failure to produce a doctrinal legal analysis of intellectual property and Islamic Shari’a. To date, there is little or no linkage between intellectual property concepts and practices and many of the relevant Islamic doctrines regarding law making. The main arguments addressed in the existing research have sought to establish Islamic Shari’a’s recognition of IP. However, the focus of this research may be seen to be too narrow and further research is required if we are to:

 harness the sources and objectives of Islamic Shari’a to determine whether the current international intellectual property system is compatible with Islamic Shari’a and promotes the interests of Islamic countries;

 construct a framework to regulate the production, protection and dissemination of intellectual products from an Islamic perspective;

11 Fathi Al-Dirini, above n 9. 12 Heba Raslan, ‘Shari’a and the Protection of Intellectual Property, the Example of Egypt’ (2007) Intellectual Property Law Review 528; Amir 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 204. 13 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).

 trace policy measures and policy practices that may intersect with Islamic Shari’a’s sources, objectives and principles on the regulation, protection and enforcement of intellectual property; and

 discover whether it is sufficient to introduce a Shari’a-friendly intellectual property system to promote development or whether other policy reforms should be taken into account.

Unfortunately, the academic literature with regard to intellectual property in Libya is lacking. This is apparent from the fact that law schools in Libyan universities do not teach the subject of intellectual property law, either at the undergraduate or postgraduate level. 14 Furthermore, textbooks on commercial law refer only tangentially to intellectual property, and Libyan law schools’ publications do not appear to have yet published any research on intellectual property.15 Thus, it comes as no surprise that a study on the stance of Islamic Shari’a on intellectual property laws in Libya cannot be found. This situation might be attributed to the fact that Libyan intellectual property laws have not undergone any meaningful development since the 1950s. 16 Given the importance of regulating the production and dissemination of intellectual goods to modern societies, it is important to consider the introduction of intellectual property laws appropriate to the cultural context in Libya.

This research draws on a number of miscellaneous studies, primarily in the form of reports. Among the most important of these is a report dealing with a potential free trade agreement between Libya and the European Union that was published in 2009 under the auspices of European Commission (EC).17 This report provided an overall assessment of the Libyan IP system and concluded that it requires comprehensive reform if it is to serve the objectives of the Libyan people.

14 Unlike universities in neighbouring countries such as Egypt. 15 As far as the author can ascertain, there is only one unpublished Masters Thesis on IP and cyberspace, which was submitted to the Faculty of Law, Tripoli University. See Huda al-Thulthy, Intellectual Property and Electronic Commerce, (Master Research, Law School Tripoli University) (on file with author). 16 As will be discussed in Chapter 7. 17 European Commission, Trade Sustainability Impact Assessment (SIA) of the EU-Libya Free Trade Agreement (October 2009) 17, available online at http://www.eulibya-sia.org/media/docs/EU- Libya%20SIA%20Final%20Report.pdf; European Mission Report on Libyan IP Law (Unpublished Material 2009).

1.1.4 Contribution and Importance

This research contributes by filling a gap in the knowledge regarding intellectual property and Islamic Shari’a on one hand, and intellectual property laws in Libya on the other hand.

It studies the current application of intellectual property as introduced in the main international conventions in light of the sources and objectives of Islamic Shari’a. The earlier research was mainly concerned with justifying concepts of ownership of ideas from an Islamic perspective without clearly identifying whether, or how, its findings applied to the predominant framework of intellectual property at the international level.18 This research identifies specific principles and objectives within Islamic Shari’a that will assist in determining if the current predominant framework of intellectual property regulation and policymaking is compatible with Islamic Shari’a.

Intellectual property systems emerged and developed in the West. The prevailing theory that drove the emergence and development of intellectual property systems was essentially an economic one, utilitarianism. This thesis adds an Islamic perspective on the recognition and protection of intellectual property rights. It does not necessarily reject all the aspects of intellectual property as they have emerged and developed in the West; however, the Islamic perspective urges looking beyond the economic theories, particularly utilitarianism, in guiding the normative analysis of intellectual property. It calls for intellectual property to be perceived as a tool for achieving the overall development and social welfare of the society. Principles derived from Islamic sources such as stewardship, dissemination of knowledge and distributive justice can contribute to ensuring that intellectual property takes into account fundamental human needs such as access to essential drugs, education and economic growth. Therefore, this thesis will be of significant importance to the debate about the role of intellectual property in development that is ongoing at the international level, introducing the Islamic perspective to that debate.

Additionally, this research seeks to infer from the sources and objectives of Islamic Shari’a a set of principles that may assist in constructing a normative framework for

18 The scope of the predominant framework of intellectual property at the international level is defined at p13.

the regulation of rights in knowledge and cultural production. Constructing this framework will assist in imagining the kind of intellectual property system which Islamic Shari’a will support.

Based on the parameters identified in the principles of Shari’a, this research explores the secular intellectual property jurisprudence and civic practices to discover whether there are policy measures, regulations and/or institutions that may intersect with Islamic Shari’a’s principles and objectives regarding the regulation of rights in knowledge and cultural production.

This research also contributes to elucidation of the best approaches towards regulation of intellectual property so that intellectual property laws are sensitive to the cultural context in Libya and, at the same time, contribute to promoting development.

As for the importance of this research, it has at least two dimensions: theoretical and practical.

On a theoretical level, this research will assist in understanding (a) how Islamic Shari’a, as one of the world’s largest religious, cultural and legal systems, perceives intellectual property; (b) how Islamic Shari’a might influence the current debate on the international framework of intellectual property; and (c) how Islamic Shari’a’s principles on social justice and ownership of knowledge can inform debates on rethinking the current and predominant IP system.

On a practical level, this research will introduce to those countries where Islam influences culture and law a policy framework to implement an intellectual property system that is compatible with Islamic Shari’a, and, at the same time, development oriented. 19 Therefore, this study will be important to reform movements in the

19 The introduction of IP laws that are compatible with Islamic Shari’a may assist in providing better protection and enforcement of legal rights over intellectual products. One survey included 370 students in Kuwait, 80% of them said that they would respect IP laws if it is Shari’a compliant while 54% said they will respect IP if the law dictates so.Salah al-Fadhil, ‘the Ethical Dilemma of Software Piracy in Islamic Societies: The Case of Kuwait’ (2009) EJISDC 4-5. Additionally, Heba Raslan observes that once al-Azhar Fatwa Committee issued a legal opinion regarding copyright in 2000, the effect on the ground ‘was felt immediately’ she cites the words of a Microsoft antipiracy manager in Egypt who said ‘I am not going to keep it for one more minute’. Heba Raslan, ‘Shari’a and the Protection of Intellectual Property, the Example of Egypt’ (2007) Intellectual Property Law Review 503.

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, 7th 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.

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).29 This 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)31 This 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

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.

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.

1.1.6 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

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.

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. 41 This 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, al-Ihkām fi Usūl al-Ahkām (Dār al-Sumai’ī, 2003); Jalal al-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 al-Jawzi, 2002) Vol 2; al-‘izz Ibn Abd al-salam, Qaw’aid al-Ahkām fi Islāh al- Anām (Dār ibn hazm, 2003). 40 For instance: Muhammed Abu Zahra, Usūl al-Fiqh (Dār al-Fikr al-‘arabi, 2006); Yūsuf al- Qaradawi, Shari’atu al-Islam Salihtun li al-Tatbīq fi kul Zaman wa Makan (Wahba Library, 5th 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).

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 al-Insani (al-Ma’ārif al-Jadida, Morocco, 2009); al-Tahir B. Ashur, Maqasid al-Shari’a al- Islamiyya (Dār al-Nafā’is, 2001); Muhammed Sa’īd al-Būti, dawābit al-maslaha fi al-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)

1.3 Thesis Structure

Chapter Two: Relevance of Islamic Shari’a in the Modern Era

This chapter provides an introduction to the key concepts of Islamic Shari’a. It gives a brief account of Shari’a’s history, definitions, sources and its relevance to modern societies. It explains the basis on which Islamic Shari’a would legislate for modern societies and how modern Islamic institutions have applied Islamic Shari’a to scientific, legal and cultural concepts. The chapter then explains the role that Shari’a plays in modern jurisdictions with a predominantly Islamic population.

Chapter Three: The Place of Intellectual Property in Islamic Shari’a

After establishing Islamic Shari’a’s relevance to enacting legislation for a modern society (Chapter 2), Chapter 3 examines the position of IP in Islamic Shari’a. The first part of the chapter briefly highlights the status of IP in Islamic jurisdictions and examines how Islamic civilisation has dealt with the protection of intellectual products. The second part of the chapter investigates how Islamic scholars, commentators and Islamic institutions have viewed the relationship between IP and Islamic Shari’a. The chapter concludes by introducing a stronger theoretical justification for IP from an Islamic perspective and evaluating the existing literature on IP and Islamic Shari’a.

Chapter Four: Rethinking the Relationship between IP and Islamic Shari’a

Chapter 4 identifies and discusses issues that are not adequately covered in the literature considered in Chapter 3. It argues that IP is compatible with Islamic Shari’a to the extent that it promotes the public interest from an Islamic perspective as dictated by the sources and objectives of Islamic Shari’a. The public interest from an Islamic perspective can be understood in terms of modern definitions and studies on development. The currently dominant IP systems are not designed with a development focus and, therefore, are not compatible with the Islamic perspective on the public interest. This view is supported by research on the standards setting process of the currently dominant IP systems, the history of IP and development in some developed countries and the relationship between IP and various development measures such as public health, access to education and economic growth.

Chapter Five: Integrating IP into Islamic Shari’a

It is not enough to argue that the currently dominant systems of IP are not compatible with the public interest from an Islamic perspective. We need to integrate IP into Islamic Shari’a and design a Shari’a-friendly IP system. This chapter argues that the Islamic perspective on IP goes beyond the economic analysis as manifested in incentive-based justifications of IP. In particular, the Islamic perspective directs consideration of a set of principles, derived from the sources and objectives of Islamic Shari’a, such as stewardship, distributive justice and dissemination of knowledge. These principles can be used to construct a normative framework for a Shari’a-friendly IP system.

Chapter Six: An Optimal IP Agenda from an Islamic Perspective

Having established a normative framework, Chapter 6 examines international IP jurisprudence to pinpoint recommendations, proposals and policy measures that fit within Islamic Shari’a’s framework for regulating the protection, production and dissemination of intellectual products. This chapter identifies four broad considerations for a Shari’a friendly IP system, which include: expanding the public domain, conceptualising rights for users of intellectual goods, exploring collaborative modalities for producing intellectual goods and adopting an A2K policy.

Chapter Seven: The IP System in Libya and Promoting Innovation

The first part of this chapter critically examines the current Libyan IP system in terms of laws and the existing policy directions as manifested in various governmental and international reports as well as the newly proposed IP law projects. The second part of this chapter proposes recommendations for a Shari’a- friendly and development-oriented IP system. The considerations identified in Chapter 6 are placed in the Libyan context and supplementary proposals directed at fostering the country’s industrial and technological base and its overall innovation capabilities are put forward.

Chapter Eight: Conclusion and Future Work This chapter concludes that Islamic Shari’a continues to be relevant to law making in many countries worldwide. It is also relevant to IP. Islamic Shari’a can be used as a

normative framework to design fair and efficient IP laws and policies. International IP scholarship offers proposals for legislative reforms and policy measures for implementing a Shari’a-friendly IP system which would be suitable for adoption in Libya as an Islamic and developing country.

Chapter Two

Relevance of Islamic Shari’a in the Modern Era

2.1.1 Introduction

This chapter introduces the fundamental concepts of Islamic Shari’a. It provides background information about Islamic Shari’a, its development and its relevance to law-making in modern societies.

The chapter begins with a brief account of Islamic Shari’a’s history, definitions, various sources and its relevance to modern societies. It identifies the mechanisms by which Islamic Shari’a legislates for modern societies and how modern Islamic institutions have applied Islamic Shari’a to scientific, legal and cultural concepts. The chapter then explains the role that Shari’a plays in modern jurisdictions with predominantly Islamic populations.

2.1.2 Emergence of Islamic Shari’a

Fifteen centuries ago, according to Muslim belief, God revealed to His last Prophet Muhammad, peace be upon him (PBUH), Muslims’ Holy Scripture, the Qur’an:

We reveal unto thee the scripture with the truth, that thou mayst judge between mankind by that which God Showth thee.1

The immediate environment of this revelation was one of simple tribal communities in Arabia, where each tribe had its own rules that had been developed over the centuries. These rules governed all aspects of life, from civil transactions to criminal conduct. The first revelation of the Qur’an was in Mecca and continued for almost 13 years till 622 CE. Notwithstanding this lengthy period of disclosure, the Qur’an did not contain comprehensive legal rules. Rather, it was concerned with devotional issues that call upon the Arabs to refrain from worshiping idols and to believe in one God according to the divine revelation. This era can be labelled the ‘era of devotional reform’.

1 The Qur’an (Marmaduke Pickthall trans) 4:105.

With the establishment of a new state in Madina (the City) in 622 CE2, the Arabian tribes came to widely accept Islam as a religion and regulator of daily life. At this stage, the technical concept of what later came to be known as Islamic Shari’a began to emerge and the language of the Qur’an was extended to encompass issues related to civil transactions, family affairs, criminal regulations, state formation and even international relations.3 The authority of the Prophet as the supreme commander took its ultimate shape in this period, as His teachings put the general principles of the Qur’an into practical application such that they became an independent measure for regulating conduct in various aspects of daily life in the new Muslim community. Both the Qur’an and the teachings of the Prophet – which are described as Sunnah – came to largely supersede tribal customs4, in what may be seen as one of the largest legal reforms in history. One area of reform was marriage: the Qur’an and Sunnah repealed several forms of marriage and confined it to the traditional form, that is, a contract between a man and a woman. Women were granted the right of inheritance which had not previously existed in Arabia before Islam. The Qur’an also prohibited riba (usury) in all civil transactions and prescribed severe punishments for theft, adultery and murder.

With regard to the political system, the Qur’an provided the foundation of the Shura system, which means governing by means of counsel.5 During the Madina period, the texts of the Qur’an6 and the sayings of the Prophet7 emphasised the importance of resorting to them in all devotional and legal matters. This emphasis gave the Qur’an and Sunnah their high-ranking position which prevailed through the ensuing centuries through to the present day.

Following the death of the Prophet in 632 CE, within the span of a century the borders of the Islamic state expanded to include people from different cultural, religious, ethnic backgrounds. In this era, Muslim rulers and judges had to find solutions to issues that were not dealt with directly in either the Qur’an or Sunnah. They issued rulings by means of Ijtihad (self-exertion/legal reasoning), deducing

2 N.J Coulson, A History of Islamic Law (Edinburgh University Press first published 1964, 2005) 10 3 Mana’ al-Gatan, Tarikh al-Tashri’ al-Islami (Maktabat al-Mā’irf, 1996 ) 58. 4 N.J Coulson, A History of Islamic Law, above n 39, 11. 5 The Qur’an describes believers in 42:38 as those ‘Whose affairs are a matter of counsel’. 6 The Quran (Marmaduke Pickthall trans) ‘Obey Allah, and obey the messenger’ 4:59. 7 It was reported in Sunan of Abu-Dawūd that the Prophet said ‘You are to follow my Sunnah and the path of the rightly-guided caliphs.’ Sunan of Abu-Dawūd Hadith 4590, http://alkhilafah.net/pro9.html.

hukm (a ruling) based on the general principles of the Qur’an and Sunnah. The companions of the Prophet and the rulers who came after them dealt with issues that confronted them by looking for a solution for it in the Qur’an; if the Qur’an did not deal with the issue, they then turned to the Sunnah, but if there was no Sunnah on the matter they would issue a ruling by Ijtihad.8 The latter largely resembles the modern concepts of justice and equity that are applied in cases where there is no written law on a given matter; in the case of Islamic Ijtihad, guidance is provided by principles of justice and equity as prescribed in the Qur’an and Sunnah, rather than by a intellectual understanding and elaboration of them. Despite the substantial developments that took place in this era in terms of shaping the concepts of Islamic Shari’a, there was no juristic classification for the sources of Islamic Shari’a. Such classification came at a subsequent stage.

In the period known as Asr al-Madhahib (era of the legal school of thought) - which is believed to have begun in the eighth century and lasted for approximately three centuries9 - the most significant developments occurred in Islamic Shari’a since the death of the Prophet. The effects of these developments are still evident today.10 At that time the leading Imams (founders) of the main four Islamic schools of law appeared: namely, Hanafi, Maliki, Shafi’i and Hanbali. Due to the contribution of those Imams and their successors, the most comprehensive works in Islamic Shari’a came into being. The classification of the different sources of Shari’a and the writing of the major books regarding the interpretation of the Qur’an and Sunnah is attributed to them.11

After the creation of the juristic wealth within Islamic Shari’a that characterised the previous period, the development of Shari’a faced what is known in Islamic Jurisprudence as Asr al-Jumud wa al-Taqlid (the period of stagnation and imitation). Asr al-Jumud wa al-Taqlid started from the end of the previous era and continued to the present day. Generally, in this era jurists ceased to make original Ijtihad and, instead, imitated other jurists from the known Islamic schools of law. This period

8 Jad al-Haq Ali Jad al-Haq , al-Fiqh al-Islami: Murunatuhu wa tatawūruhu (al-Azhar, 2004 ) 38. 9 Muhammed Abuzahra , Usūl al-Fiqh (Dār al-Fikr al-Arabi, 2006). 10 The interpretations of these schools are still adapted in various countries. For instance, the Maliki in Libya, Hanafi in Egypt, Hanbali in Saudi Arabia and the Shafiee in Indonesia. 11 Jad al-Haq Ali Jad al-Haq , al-Fiqh al-Islami: Murunatuhu wa tatawūruhu, above n 8, 78-80.

had a negative impact on Islamic Shari’a and prevented further development of Islamic legal thought.12

Despite the disadvantages of the period of stagnation and imitation, which is considered the longest in the history of Shari’a, there were calls during that time for a return to the golden age of Islamic schools of law. These calls urged Muslim scholars to make original ijtihad using the means that were used in Asr al-Madhahib without abiding by any particular school of law. These calls reached an extreme point in the middle of the nineteenth century but have not taken on a collective and organised form that adequately represents Muslims.

Some scholars13 divide the eras of the development of Shari’a in an approach that is similar to the narrations provided above:

 First stage: the lifetime of the Prophet and His righteous companions.

 Second stage: the constitutive era which followed the expansion of the Islamic state during the Umayyad period 661-750.

 Third stage: the golden age which saw the founding of the main Islamic schools of law.

 Fourth stage: Asr Aljomod wa Altaqlid (the period of stagnation and imitation).

 Fifth stage: the contemporary period, characterised by calls for legal reform and a re-opening of the gate of ijtihad in the manner that existed during the third stage.

2.2 Islamic Law, Islamic Jurisprudence and Islamic Shari’a

Shari’a literally means ‘the clear way’ or ‘path’. It is a term of Arabic origin used to refer to the place from which people and animals drink water. The derived Arabic verb (Sha ra‘a) means ‘revealing truth’ (izhar al-haq) and ‘refuting falsehood’.14 This is why the term ‘Shari’a’ was used in the Islamic context to describe the rules of

12 Yūsuf al-Qaradawi, Shariʿat al-Islam Salihatun li al-Tatbiq fi kul zaman wa makan (Wahba Library, 5th ed, 1997) 47. 13 Mana’ al-Gatan, Tarikh al-Tashri’ al-Islami, above n 3, 13. 14 Ibn Manzur, Lisan al-Arab (Dār al-Ma’ ārif) 2238-2239. 24

Islam that are believed to contain the truth which is best for humankind in this life and in the Hereafter.15 In the Qur’an, the term Shari’a denotes the rules of Islam:16

Then We put you, [O Muhammad], on an ordained way (Shari’a) concerning the matter [of religion]; so follow it and do not follow the inclinations of those who do not know.17

To lay Muslims who are not specialised in Islamic studies, the term Islamic Shari’a means exclusively the rules that are contained in the Qur’an and Sunnah and the juristic interpretations of them. However, in the writings of Muslim scholars, the combined term ‘Islamic Shari’a’ refers to the dogmatic and practical rules18 which are contained in the main sources (Qur’an and Sunnah) as well as the secondary sources.19

Muslim Scholars are in agreement20 that Islamic Shari’a includes a wide scope of matters such as devotions ʿibadat, family affairs, civil transactions, regulations for criminal conduct and the eternal and external state’ s affairs.

It is widespread practice in the Islamic English language literature to describe the rules of Islam as ‘Islamic Law’ and to use the term ‘Islamic Shari’a’ interchangeably with it.21 It is noteworthy, however, that the term ‘law’ is used in the Islamic Arabic literature to refer to the rules which are made by man, and not to those of contained in the primary sources of Islamic Shari’a. Therefore, it is not common in Islamic legal scholarship to use the Arabic equivalent of Islamic law ‘al qanun Al islami’ interchangeably with Islamic Shari’a.22 The dictionary meaning of the term ‘law’ indicates that it is ‘enforceable body of rules that govern any society’23 which is

15 Rafiq Ajam, Mawsū’at Mu’jam Usūl al-Fiqh ‘inda al-muslimīn (Maktabat Lebanon, 1998) vol 1, 826. 16 Yūsuf al-Qaradawi, Mudkhal li Derāsat al-Sharia al-Islamiyya (Maktabat Wahba 2009) 7. 17 The Qur’an (Sahih International trans) 45:18. 18 Mustafa al-Zarqa, al-Madkhal al-Fiqhi al-A’am (Dār al-Qalam 1998) 48 19 The sources are explained below at p 27. 20 Al-Qaradawi, Mudkhal, above n 16, 9; Wahba al-Zuhili, Usūl al-Fiqh al-islami (Dār al-Fikr,1986) 438-439, Muhammed Khidr Hussain, Shariʿat al-Islam Salihatun li al-Tatbiq fi kul zaman wa makan (Nahdat Misr 1999) 3. 21 For example Muhammed Kamali, Principles of Islamic Jurisprudence (Pelanduk Publications, 1989) 1. 22 Furthermore, in some Islamic jurisdictions, such as Saudi Arabia, the ulema (scholars) have sensitivity towards the word ‘law’ due to its association with the Western-based legislations. W. M. Ballantyne, Commercial Law in the Arab Middle East: the Gulf States, (Lloyd’s of London Press Ltd 1986) 49. 23 Oxford Dictionary of Law.

implemented by the compatible authority in the form of material criminal or civil responsibility. The rules the Qur’an describes as ‘Islamic Shari’a’ go further than that. They include material consequences for breaking the rules as well as religious consequences in the form of the potential punishment in the Hereafter. For instance, anyone who breaches the Qur’anic injunction which requires the honouring of contracts, ‘O ye who believe, fulfill your undertakings’,24 is required to compensate the other party. In addition, he or she is regarded as a sinner for not adhering to the Qur’an.

Accordingly, and pursuant to the classical meaning of Shari’a within the language of the Qur’an and as understood in the ancient and modern Islamic literature, it is better to describe the rules which are contained in or derived from the Qur’an or Sunnah as Islamic Shari’a rather than Islamic Law, and for the purpose of this study I will adopt the term Islamic Shari’a.

Another term related to Islamic Shari’a and widely used as synonym, is Islamic jurisprudence (al-fiqh al-islami). The dictionary meaning of the Arabic word Fiqh is knowledge and it is often used to refer to the knowledge of the rules and principles which are related to the Islamic religion. 25 Technically, according to the widely agreed definition, Islamic Fiqh (jurisprudence) means ‘the knowledge of the practical rules of Islamic Shari’a which are derived from particular evidence in the sources [of Islamic Shari’a].26 In this sense, Fiqh is an intellectual activity and does not by itself constitute a binding set of rules. It is related to the practical rules of Shari’a, that is, the legal rules, and does not deal with devotional issues, while Islamic Shari’a is a set of rules by itself and includes all the rules of Islamic religion including devotions. The relationship between Islamic Shari’a and Islamic Fiqh is one between means and purpose:27 Islamic Fiqh is the knowledge by which the rules of Islamic Shari’a are deduced.

Another aspect of this strong relationship is that the classification of the secondary sources of Islamic Shari’a such as maslaha mursala (unrestricted public interest) and Qiyas (analogical reasoning) is a juristic work. Scholars of Islamic jurisprudence

24 The Qur’an (Marmaduke Pickthall trans) 5:01. 25 Ibn Manzur, Lisan al-Arab, above n 14, 3450. 26 Muhammed Abu Zahra, Usūl al-Fiqh (Dār al-Fikr al-Arabi, 2006) 6. 27 Yūsuf al-Qaradawi, Mudkhal, above n 16.

have articulated these sources and derived evidence for them from the Qur’an and Sunnah. Thus, despite the fact that Islamic Shari’a and Islamic Fiqh are two discrete concepts, they are robustly connected.

2.3 Sources of Islamic Shari’a

The sources of Islamic Shari’a provide rules and mechanisms that regulate the daily life of Muslims. Any legal matter that arises from a dispute has to be exposed to the sources of Shari’a in order to find a solution for it. The scope of Islamic Shari’a’s sources includes devotional matters, family affairs, commercial transactions or criminal conduct. God says in the Qur’an addressing Muslims: ‘And if you disagree over anything, refer it to Allah (God) and the Messenger, if you should believe in Allah (God) and the Last Day. That is the best [way] and best in result’.28 The eminent Muslim scholar Ibn al-Qayyim (1292 CE) says in this regard that referring disputes to the rule of Shari’a is a ‘precondition for believing in Islam’.29

Islamic schools of thought are not in agreement regarding the classification of the sources of Islamic Shari’a. However, they are commonly divided into primary and secondary sources 30 depending on the strength of the source in terms of its connection to the divine revelation.

2.3.1 Primary Sources

The primary sources of Islamic Shari’a are the Qur’an, Sunnah and Ijma’ (consensus). They are considered primary sources because all the other sources are based on them in terms of legitimacy and proof. There is agreement among Muslim scholars that the primary sources are the highest in value and are at the top of the hierarchy.

2.3.1.1 The Qur’an

The Qur’an, as defined by Al-Amidi (1314 CE),31 is the text that God revealed to the Prophet Muhammed (PBUH), which was transmitted by collective testimony

28 The Qur’an 4:59. 29 Ibn al-Qayyim, aʿlam al-muwaqiʿīn (Dār ibn al-Jawzi 2002) Vol 292. 30 Another common category is transmitted or textual and rational or non-textual sources, Qur’an and Sunnah are considered transmitted sources and the rest are rational. Kamali above n 21, 14, and Abd al-karim Zedan al-Wajīz fi Usūl al-Fiqh (Mo’assasat Qurtaba 1976) 147 -148. 31 Al-Amidi, al-Ihkām fi Usūl al-Ahkām (Dār al-Sumai’ī 2003) 215 et seq.

(tawatur). The Qur’an includes 6,226 verses, 500 of which contain instructions regarding devotions, morals and practical rules concerning family affairs, civil transactions, criminal conduct and state affairs.32 The Qur’an is the supreme source as the other sources attain legitimacy from its texts33 and any ruling derived from any other sources must be compatible with the Qur’an.

The texts of the Qur’an are sacred to Muslims and amendment of them is not open for discussion. The Qur’an contains two types of legal verses34 in terms of meaning: the first type is the definitive or self-evident (qat’i) the texts of which are clear and cannot be subjected to interpretation. This part of the Qur’an represents the smaller portion of the legal verses. Instances of this type include marital status and inheritance where Qur’an has detailed the persons entitled for inheritance and their shares. The second type is the speculative (zanni), which comes in the form of general principles that are not self-evident and are often subject to different interpretations from the different schools of law. For instance, regarding constitutional affairs, the Qur’an establishes the Shura system (governing by consultations) by describing Muslims as those ‘whose affair is [determined by] consultation among themselves’.35 However, the verse does not specify the forms and the procedures by which the consultation should be done.

Other verses of the Qur’an contain various broad principles related to the construction of human society such as justice, freedom, equity, management of knowledge and the purpose of property. These types of verses represent the larger portion of the Qur’an’s legal provisions and are of great significance in shaping the way Islamic Shari’a responds to changes in time and place and relates to contemporary times as will be discussed below.

2.3.1.2 The Sunnah

Sunnah is an Arabic term, literally means the road or the path. It also means the conventional course of conduct. 36 In Islamic jurisprudence, the Sunnah means everything that was narrated by the Prophet. This includes his sayings to one or more

32 Wahba, above n 20, 438 et seq. 33 Zedan, above n 30, 148. 34 Wahba above n 20, 440. 35 The Qur’an (Sahih International trans) 42:38. 36 Kamali above n 21,55.

of his companions, the acts he performed, or whatever sayings or actions of his companions he tacitly approved. 37 This broad definition encompasses even the actions of the Prophet as a human, which are not deemed as a source of the practical rules of Shari’a.38

Several verses in the Qur’an confirm the Sunnah to be a source of Islamic Shari’a in addition to the Qur’an39 and scholars are in agreement that the Sunnah takes the second position after the Qur’an in the hierarchy of the sources. This is because the Sunnah was not recorded during the lifetime of the Prophet,40 and therefore was not transmitted to the subsequent generations of Muslims by collective testimony, as is the case with the Qur’an. This difference made the majority of the Sunnah’s content speculative in proof.41 Nevertheless, the Sunnah possesses great significance due to its relationship to the Qur’an, and as an independent source of legislation that might be considered a base of operating for secondary sources as discussed below.

Muslim scholars classify the Sunnah in terms of its relation to the Qur’an using the following categories:

 Confirming Sunnah, which re-affirms an injunction that was previously stated in the Qur’an. An example of this is the Prophetic saying that ‘it is unlawful to take the property of a Muslim without his/her express consent’. This saying confirms the Qur’anic verse which says ‘squander not your wealth among yourselves in vanity, except it be a trade by mutual consent’.42

 Explanatory Sunnah, which specifies the general meanings of the Qur’an. The Scholars classify this type of Sunnah to several sub-divisions, the explanation of which is beyond the scope of this research. For instance, while the Qur’an forbids riba (usury), it is the Sunnah which specifies the types of usury and the conditions of the prohibition.43

37 Abu Zahra above n 26, 105. 38 Mahmud Shaltut, al-Islam ‘aqida wa Shari’a (Dār al-Shurūq 2001) 500. 39The Qur’an (Sahih International trans) 4:59 and 80; 33:36 and 53:5. 40 Sunnah started to be recorded in books 200 years after the death of the Prophet. The most reliable sources of Sunnah are al-sihah al-sitah (the authentic six); namely, al-Bukhari, Muslim, al-Termidi, Ibn majjah, al-Nasā’i, abu Dawūd and Ahmad B. Hanbil). 41 Wahba above n 20, 460 et seq. 42 The Qur’an (Marmaduke Pickthall trans) 4:19. 43 Wahba, above n 20 462.

 Sunnah as an independent source. This type of Sunnah constitutes a ruling that does not have origins in the Qur’an. Examples of this type include: setting the collective compensation (al-diyah ‘ala al-‘aqila) where the family of a person responsible for a death in an accident is required to pay compensation to the family of the deceased.44 Other examples are: the right to pre-emption and the grandmother’s entitlement to a share in inheritance.45

As is the case with the Qur’an, the Sunnah contains guidance and broad principles on the construction of human society. The sayings and actions of the Prophet (PBUH) emphasise various broad principles related to areas such as economic and legal affairs, management of knowledge and the regulation of property. These principles have built-in flexibility, in order that they may respond to changes in time and place.

2.3.1.3 Ijma’ (Scholarly consensus)

Ijma’ literally means unanimous agreement. According to Al-Amidi, Ijma’ as a source of Islamic Shari’a means the consensus of qualified Muslim scholars (mujtahidūn) within the Islamic community (Ummah) on a legal matter. 46 This source was developed by the companions of the Prophet after his death in 632 CE, and the expansion of the Islamic territories to encompass new cultures and races. The companions needed to deal with cases for which there was no specific injunction in the Qur’an or in the Sunnah. The righteous successors (Khulafa al-Rashidūn)47 of the Prophet used to gather all the other companions to discuss and reach to an agreement on certain matters.48The renowned jurist Mustafa al-Zarqa gives examples of Ijma’ regarding the inheritance of the grandfather passing to the grandson in the case of the son’s death and regarding the contract of Istisna’ (a contract of exchange with deferred delivery or manufacture contract).49

Ijma’ is not regarded as a divine source in its own right. Therefore, it cannot be applied to issues that have definitive meaning in the Qur’an or in the Sunnah. Jurists

44 Ibid 464. 45 Kamali, above n 21, 79. 46 Al-Amidi, above n 31, 262. 47 Khulafa al-Rashidūn refers to the closet companions of the Prophet who took the responsibility of leading Muslims after the Prophet’s death; namely Abu Bakr, Umar, Uthman ibn Affan and Ali B. Talib. 48 Wahba, above n, 20, 487. 49 Al-Zarqa, above n 18, 78.

claim that Ijma’ is founded on the texts of Qur’an50 and Sunnah51 and attains its strength from them.52 It is worth mentioning that Ijma’ is considered among the main sources because it could be considered a starting point for other secondary sources.53 The possibility of valid Ijma’ occurring after the era of the companions of the Prophet is debated;54 however, some modern jurists claim that it could be applied to the contemporary context in new forms as will be explained below.

2.3.2 Secondary Sources

The secondary sources are based on the primary sources. The rationale for their existence and primary function is to be a means of dealing with issues for which there is no specific injunctions in the primary sources. Hence, they are of significant importance despite their low ranking in comparison with the Qur’an and the Sunnah. The number of the secondary sources and the extent to which they can be applied is a matter of disagreement among Muslim scholars. Accordingly, only a brief introduction is provided to these sources.

2.3.2.1 Qiyas (Analogy)

Qiyas or (analogical deduction)55 is the fourth in ranking amongst Shari’a sources and it comes after Ijma’ in hierarchy. Its practical value is believed to be higher than Ijma’ because Ijma’ requires consensus from scholars of Shari’a on a given matter. Such consensus is difficult to achieve. Unlike Ijma’, Qiyas has been used widely to deduce Shari’a-based injunctions.56 Qiyas is not classified under the primary sources because it is not independent source in its own right but must based on one of the primary sources.

Qiyas is used in Arabic to describe measuring length or weight. As a source of Islamic Shari’a, it means extending the injunction of an established case to a new

50The Qur’an (Yūsuf Ali trans) 4:115 ‘if anyone contends with the Messenger even after guidance has been plainly conveyed to him, and follows a path other than that becoming to men of Faith, We shall leave him in the path he has chosen, and land him in Hell,- what an evil refuge!’ 51 Al-Thirmidhi: Hadith no 2173. 52 Whaba above n 20, 539 et seq. 53 Ibid 633. 54 Al-Zarqa, above n 18, 79. 55 Kamali, above n, 21, 248. 56 Al-Zarqa, above n 18, 79.

case due to their unity in the effective cause.57 If a new issue emerges for which there is no specific ruling in the Qur’an, Sunnah or Ijma’, the jurist uses Qiyas by looking into the mentioned primary sources to determine the following things:

 Does the new case have similar counterpart in the primary sources?

 What is the ruling of the counterpart in the primary sources?

 Does the counterpart in the primary source have an effective cause (‘illa)?

If the jurist finds that the new issue is similar to an established one in the Qur’an and the ruling for the established case came with reasons which apply to the new case, the injunction of the established case shall be extended to encompass the new case.

The most cited example for Qiyas58 is the case of alcohol and drugs. The Qur’an prohibits drinking alcohol but said nothing regarding drugs. It prohibited alcohol because of its intoxicating nature and describes it as a source of evil and problems in the community.59 Drugs are believed to have the same effect. Therefore, and by analogy, drugs should be prohibited according to Islamic Shari’a. Qiyas also has been used in other legal matters such as inheritance, marriage and contracts.60

2.3.2.2 Maslaha Mursala (Consideration of Public Interest)

The Arabic term maslaha61 means interest or benefit, and the term mursala literally means unrestricted or absolute. Maslaha mursala is one of the most important sources of Islamic Shari’a and usually referred to when facing issues for which there is no injunction that can be found either in the primary sources or in Qiyas. Maslaha mursala technically means: the consideration of public interest in articulating Shari’a-based rulings. Any action or policy that brings benefit to the community or

57 Muhammed al-Shawakani (d.1759) gives several definition for Qiyas from the writing of the early Muslim scholars. Irshad al-Fuhul (Dār al-Fazila 2000) 840 et seq. 58 Zedan, above n 30,196. 59 The Qur’an 5:90. 60 Al-Zarqa, above n 18, 82 et seq. He gives various example of the application of Qiyas which were based on the Qur’an and the Sunnah. 61 Al-Ghazali uses the term istislah in his renowned book al-Mustasfa as synonym to maslaha mursala Abu Hamid al-Ghazali, al-Mustasfa, (al-Jami’a al-Islamiyya) vol 2, 478. 32

prevents harm, and for which there is no specific text to demonstrate its validity or otherwise is considered as maslaha mursala.62

It is established in Islamic jurisprudence that the interest and welfare of the community is the highest priority in Islamic Shari’a ‘and We have not sent you, [O Muhammad], except as a mercy to the worlds’. 63 In Islamic jurisprudence, the highest priorites, also known as Maqasid al-Shari’a or ‘the main objectives of Shari’a’, are to protect, preserve and promote: (1) religion (Dīn); (2) life (nafs); (3) intellect (ʿaql); (4) lineage (nasl) and (5) wealth (mal). In this regard the eminent scholar IzDīn Ibn Abd-Alsalam (1261 CE) says ‘Islamic Shari’a is all about an interest in preventing harm or bringing about benefits’.64

Accordingly, any new issue facing Muslim community would be considered within the parameters of maslaha mursala only if these issues help in preserving one or all of the objectives of Islamic Shari’a. For instance, new developments in the field of health would be considered under maslaha mursala if they assist in preserving the life or the intellect of Allah’s creations whether human or animal.65

For an interest to be considered as maslaha mursala and thus as a source of Shari’a it has to meet certain conditions66:

1. It must be certain, and this condition is fulfilled after conducting an evaluation to determine if its consequences constitute a definitive interest to the community.

2. It must be general, in that benefits it the whole community or or the majority of its members, and not only a limited number. This resembles what is known in Western political thought as ‘the greatest good for the greatest number’.

3. It must be compatible with the primary sources and must not breach fixed principles provided in the Qur’an, Sunnah or Ijma’.

62 Muhammed Sa’īd al-Būti, dawābit al-maslaha fi al-shari’a al-islamiyya (PhD Thesis, Faculty of Shari’a al-Azhar University,1965) 329. Maslaha mursala is classified here into different categories: masalih dharūriyya (essentials), hajiyya (complementary) and tahsiniyya (embellishments). 63 The Qur’an (Sahih International trans) 21:107. 64 Al-‘izz Ibn Abd al-Salam, (d. 1261C.E) Qaw’aid al-Ahkām fi Islāh al-Anām (Dār ibn Hazm, 2003)14. 65 For more on this see al-Tahir B. Ashur, Maqasid al-Shari’a al-Islamiyya (Dār al-Nafa’is, 2001) at 302. 66 Abd al-Wahhab Khallaf, Usūl al-fiqh (Maktabat alda’awa al-Islamiyya/shabab al-Azhar 2002) 86.

For instance, if we take the example of IP and expose it to the concept of maslaha mursala, we need to consider specific issues to determine whether it can be regulated as part of Shari’a. First of all, we should look into the primary sources and Qiyas and see if there is a ruling for its validity or otherwise. If we find that there is no ruling, then, the research should move to evaluate the system of IP and determine whether it prevents harm or brings benefit to the community. If the overall assessment of the IP system suggests that its benefits outweigh its potential harm it will, then, be accepted into Islamic Shari’a by virtue of maslaha mursala. A detailed assessment of the benefits and harms of IP from an Islamic perspective is contained in Chapters 3 and 4.

Maslaha mursala has been used since the age of the righteous successors of the Prophet (632 to 661CE), and various examples can be provided to illustrate its operation.67 In a legal context, Imam al-Shatibi (1388 C.E) provides an example relating to the responsibility of craftsmen in one of his important works, al-‘itesam. It has been reported that the righteous successors of the Prophet ruled that a craftsman should be held liable for the objects under his or her care.68 Although the Qur’an and the Sunnah said nothing about this issue, the righteous successors issued a ruling based on maslaha mursala. The public interest pursued in this case is the encouragement of craftsmen to take reasonable care of the property of others.

Professor Muhammed Sa’īd al-Būti in his 1965 PhD research at the Islamic University of Alazhar concludes that maslaha mursala as a source of Islamic Shari’a is ‘undisputedly acceptable according to the opinions of the companions of the Prophet, their followers (tabiun) and the four main schools of Islamic law’.69 The importance of maslaha mursala continues today, as will be discussed below.

2.3.2.3 Istihsan (Juristic Preference)

Istihisan literally means preferring one thing to another.70 The concept of istihsan as a secondary source of Islamic Shari’a is widely disputed, but was given various definitions which appear to denote the use of the jurist’s discretion in departing from

67 Al-Būti, above n 62, 353. 68 Al-shatibi, al-I’tisam (Maktabat al-Tawhīd) Vol 3, 319. 69 Al-Būti above n 62, 407, it is widely believed that the leading school that considers maslaha mursala as a source of Shari’a is the Maliki school which is the dominant school of Shari’a in Libya and North Africa in general. 70 Khaled Ramadan Hassan, Mu’jam Usūl al-Fiqh (Dār al-Tarabishi 1998) 29.

an established rule derived from Qiyas where it would lead to rigidity and unfairness, in favour of a new rule which the jurist prefers and finds to be more appropriate.71

Kamali observes that istihsan in Islamic Shari’a is the counterpart of the principles of equity in the Western legal systems, and maintains- in this regards- that:

Istihsan in Islamic Law and equity in Western law are both inspired by fairness and conscience and both authorise departure from a rule of positive law when its enforcement leads to unfair results. The main difference between them is, however, to be sought in the overall reliance of equity on the concept of natural law, and of [Istihsan] on the values and principles of [Islamic Shari’a].72

Accordingly, isthisan can be considered as opposite to Qiyas. This is because if Qiyas operates by deducing injunction for a case by looking into its counterparts in the main sources. Isthisan allows jurists to use reason to isolate new case from its counterparts73 if using the same injunction given to those counterparts would lead to unfair results.

Isthisan is divided into several categories74 the explanation of which is beyond the scope of this chapter. One simple example regarding its application to ‘contracts of deposit’ suffices. A contract of deposit is grounded in Shari’a on honesty and the good well of the depositary. If a dispute arises between the depositor and depositary, the claim of the latter will be considered true75 until the other party brings iron-clad proof to the contrary. Istihsan was used here to depart from an established rule of evidence in Islamic Shari’a which requires the plaintiff to prove his/her claims and the defendant to swear an oath denouncing them, to a new rule that gives the claim of the depositary credibility without swearing.

2.3.2.4 Istishab (Presumption of Continuity)

Istishab literarily means companionship 76 or continuation of companionship. Al- Shawkani (1759 CE) concluded that istishab means the continuation of an established rule whether it proves or negates a fact so long as there is no iron-clad

71 Zedan, above n 30, 231. 72 Kamali, above n 21, 309. 73 Al-Zarqa, above n 18, 88. 74 Al-Shawakani, above n 57, 989. 75 Muhammed Khidr Hussain, above n 20, 81. 76 Hassan, above n 70, 33.

evidence that it should not be employed.77 Basically, istishab directs the jurist to assume that an established legal or factual matter should continue to exist if the concerned party cannot prove his claim. For instance, if a contract of sale has been concluded by which the ownership of the subject matter transferred from A to B. Were A to then file an action to claim ownership, the judge in this case would presume that ownership has remained with B even if there is a probability that the circumstances have changed78 (e.g. the subject matter is under the possession of A) so long as the contract of sale is valid. In this sense istishab appears to be more a method of ruling than source of its own, as it is apparent from its definition that it does not function to deduce or infer new ruling or injunction but rather it instructs the jurist to rule by virtue of the established status quo unless new evidence comes to light. That is why it is widely accepted among jurists of Islamic Shari’a that istishab should be used only in the complete absence of ruling in the other sources.

2.3.2.5 Urf (Custom)

The literal meaning of the Arabic word ‘urf’ is ‘that which is known to people’. As one of the secondary sources of Islamic Shari’a, urf means the general continuous practices that are acceptable to people of a certain locality, provided those practices are compatible with the principles of the main sources.

Within the Islamic community, if people have continued to practise certain conduct in any field of life over a reasonable period of time this conduct becomes urf. In order for the urf to be considered by Islamic Shari’a, it has to be compatible with the primary sources urfe Sahih (approved urf). If the practices of the people constitute urf fasid79 (invalid urf) such as giving riba (usury) to creditors, they will not be considered as part of the secondary sources of Shari’a regardless of the number of people who deal with usury.

Professor Wahba al-Zuhili observes that Muslim jurists, especially Hanafis and Malikis regard urf as a source of Shari’a and consider all the injunctions which derived from a valid urf equal to the injunctions which are derived from the primary sources. 80 For instance, urf plays significant role in determining the rights and

77 Al-Shawkani, above n 57, 974. 78 Abu Zahra, above n 26, 296. 79 Abdalwahab Khalaf, above n 66, 89 et seq. 80 Al-Zuhili, above n 20, 831

obligations of the spouses before the marriage contract is concluded, during the marriage and after the end of the marriage (e.g. urf gives the wife the right to keep the furniture of the house if the husband divorces her).81

Furthermore urf plays an important role in interpreting the Qur’an and Sunnah. In his well-known work of Islamic Jurisprudence‘al-ashbah wa al-nazair, al-Suyuti reports that ‘all the injunctions of Shari’a which appear in broad terms, are to be interpreted according to urf.’82

Rules which are derived from urf become part of the sources of Shari’a, but this does not mean that those rules are unchangeable. It is widely accepted in Islamic scholarship that new urf repeals old urf so long as the new urf meets an essential condition: compatibility with the primary sources.83

2.4 The Role of Sources in the Modern Era

It is common practice among contemporary Muslim jurists to defend the validity of Islamic Shari’a in legislating for modern society and its ever-changing scientific, legal and cultural concepts and ideas.84 Particularly in the golden age of the schools of law, and indeed throughout its history, Islamic jurisprudence has provided guidance and support for the applicability of the sources of Islamic Shari’a to modern times. The following sections discuss the concepts and mechanisms used to do this.

2.4.1 The Ultimate Purpose of Islamic Shari’a

When it comes to the purpose and philosophy of Islamic Shari’a, it is rare to find a book of Islamic jurisprudence that studies the sources of Islamic Shari’a without quoting from Qaw’aid al-Ahkām fi Islāh al-Anām for al-‘izz Ibn Abd al-Salam (1261 CE). Imam al-‘izz asserts that Islamic Shari’a exists to protect the welfare of the Muslim community and prevent harm. There is therefore no injunction of Shari’a that does not bring benefit or prevent harm.85 The words of the well-known scholar al-Shatibi (1388 CE) in his book al-Muwafaqat come exactly to assert the same

81 Al-Zuhili, above n 20, 833. 82 Al-Suyuti , al-Ashbah wa al-Nazair (Dār al-Kutub al-’ilmiyya 1983) 98. 83See the rule number 28 regarding urf in the book of al-Furuq. Shehab al-Dīn al Qarafi, al-Furuq (Dār al-Salam Publications, 2010) vol 1, 3. 84 Al-Qaradawi, above n 16,149. 85 Al-‘izz Ibn Abd al-Salam, above n 33.

conclusion: it is evident through induction from the Qur’an and Sunnah that the ultimate purpose of Islamic Shari’a is to maintain the welfare of the community.86 This holds true in devotions (ʿibadat) and civil transactions (mua’malat).87 It is more evident in civil transactions, which are mainly based on the people’s immediate needs,88 unlike devotions, which deal with considerations concerning the Hereafter.

Accordingly, when facing new issues for which there is no injunction in the divine revelation, the response to this issue has to consider the philosophy of law-making in Islamic Shari’a, that is, ensuring the maximum welfare of the community by seeking the solutions which prioritise the interests of people and alleviate hardship. The teachings of the Prophet support this direction: Aisha the wife of the Prophet (PBUH) reported that when the Prophet had the opportunity to choose between two things, he used to choose that which is easier for the community provided that it is not a sin.89

The concept of maslaha mursala plays a significant role in safeguarding the interests of the community. Muslims scholars link the five main objectives of Islamic Shari’a, or Maqasid al-Shari’a — promoting religion (Dīn); life (nafs); intellect (ʿaql); lineage (nasl); and wealth (mal) — to the application of maslaha mursala as a secondary source of Islamic Shari’a. This is because what safeguards or promotes the objectives of Islamic Shari’a is considered a legitimate interest from Islamic point of view.90

For instance, if a Shari’a based injunction is to be issued on a matter for which there is no ruling in the main sources, a legislator has to consider whether a ruling (eg to prohibit or legitimise) would safeguard or promote Dīn, nafs,ʿaql, nasab and mal. An understanding of Shari’a’s ultimate objective is of significant importance in evaluating the current international regulation of IP from an Islamic perspective as discussed in Chapter 4.

2.4.2 The Nature of the Divine Revelation

86 Al-Shatibi, al-Muwfaqat (Dār ibn ‘Affan 1997) Vol 2, 7. 87 Intellectual property should be understood within the concept of civil transaction. 88 Al-Qaradawi, above n 12, 59. 89 Sunan Abu Dawūd: Hadith no 4785. 90 For more on this see Al-Tahir B. Ashur, Maqasid al-Shari’a al-Islamiyya, above n 65, 292 et seq.

Divine revelation means the Qur’an and Sunnah, which together form the pillars of the other sources as indicated above. The texts of the Qur’an concerning legal rules come in two forms in terms of their acceptability to interpretation. Firstly, texts that are definitive or self-evident, with no room for juristic interpretation, as the required action and the consequences thereof are clearly specified. These rules cover matters such as marital status, inheritance and crimes, 91 and comprise a relatively small portion of the overall number of legal texts in the Qur’an and the Sunnah.92 The second form is the speculative. The majority of legal texts in the divine revelation are speculative in their meaning and therefore subject to interpretation according to the requirements of time and location.93 The only prerequisite when using them for any modern legal reform is to remain faithful to the basics of the religion.94 Various examples can be found in the Qur’an and the Sunnah in the form of principles that can be adapted according to the reality and needs of the community. The renowned contemporary Muslim scholar Yūsuf al-Qaradawi illustrates some of these examples including the political structure in the Muslim State, the formation of which is left to the descretion of Muslims so long as it is in the form of Shura (public consultation). He also points to the way the principles of civil liability are spoken about in broad terms which allow their adaptation to the modern industrialised environment as well as the principle of ‘the personality’ in punishment.95

Accordingly, it would be a misunderstanding to assume that Islamic Shari’a attempts to govern contemporary society with rules from the early days of Islamic civilisation. It would likewise be a misunderstanding to assume that the books of the Qur’an and Sunnah are codes of law require the doing of certain actions and refraining from others. The Qur’an and Sunnah are rather books of guidance and general principles which allow deriving new rules pursuant to the needs of the community.

In 1882, an official admission was given for the fact that Shari’a has to be flexible to address the various forms of development in society. This was in Majalat al-Ahkām al-’Adalliyyiah (Code of Legal Rules) of the Ottoman Empire, which stated in article

91 Al-Qaradawi, above n 16, 106. 92 Muhammed Kamali, ‘Fiqh and Adaptation to Social Reality’ (1996) The Muslim World vol, LXXXVI, No 1, 18. 93 Yūsuf al-Qaradawi, Mūjibat Taghaiyyur al-Fatwa fi ʿasrina (Dār al-Shuruq Publications, 2008) 23. 94 Abdullah Saeed, Islamic Thought: An Introduction (Routledge, 2006) 134. 95 Al-Qaradawi above n 12, 31. The personality’ in punishment is well established principle in criminal law. It means that punishment may only be imposed on a convicted person.

39 that ‘it is an accepted fact that the terms of law vary with the change in the times’.96 Below we will consider the practical mechanism used to relate the different sources of Islamic Shari’a to the contemporary age.

2.4.3 The Means of Adaptation

The means by which the different sources of Shari’a are applied to deal with the changing conditions of Muslim society is known as Ijtihad. Ijtihad literally means striving or self-exertion’. Technically, it refers to the rigorous expenditure of intellectual effort to deduce, with a degree of probability, a Shari’a based injunction from the sources.97 Ijtihad holds a very high-ranking status in the world of Islamic legal expertise, and requires high qualifications and a robust knowledge of Shari’a’s sources. Therefore, only qualified jurists known as mujtahiūn/ahl al ‘ilm (people of knowledge) are permitted to practice Ijtihad.98 Ijtihad works to relate Islamic Shari’a to modern reality through the main sources of Islamic Shari’a as well as through the secondary sources.

When it comes to the primary sources, Ijtihad has limited scope, other than the interpretation of the Qur’an and the Sunnah to find a solution for a certain matter. As we have seen above, not all the texts of Qur’an accept interpretation. Accordingly, Ijtihad is confined to the realm of speculative legal texts within the Qur’an and Sunnah appear in broad terms and can be subject to various interpretations. With regard to the definitive texts, Ijtihad cannot play any role. 99 Nevertheless, some contemporary scholars observe that Ijtihad could be relevant to Ijma’ (the third main source of Islamic Shari’a) given that modern communications and transportation allow the ulama (jurists) from different parts of the Islamic World to practise Ijtihad and issue Shari’a based injunctions on the basis of Ijma’. The suggested mechanism for this is the fiqh (Jurisprudence) councils in which qualified jurists from the Islamic

96 Majalat al-Ahkām al-‘Adalliyyah. Available in English on http://www.iium.edu.my/deed/lawbase/al_majalle/al_majalleintro.html 97 Yūsuf al-Qaradawi Ijtihad fi al-Shari’a al-Islamiyya (Dār al-Qalam 1996) 1; al-Shawkani above n 57, 1025. 98 For detailed account of the conditions which are required for a scholar to be able to practice ijtihad see al-Shawkani above n 56, 1027; Abu Zahra, above n 25, 380. 99 Yūsuf al-Qaradawi above n 97, 65.

World gather in one council and practise Ijtihad to find new solutions for present-day matters.100

However, the vital sphere of Ijtihad is in its application to the secondary sources. As we have seen above the secondary sources were originally developed to deal with new issues which emerged after the death of the Prophet and for which there are no injunctions in the Qur’an or the Sunnah. On that basis, jurists throughout the history of Islamic civilisation used Qiyas, Istihsan, Istishab and maslaha mursala to formulate authentic responses to the challenges posed by the progress of society.

It is noteworthy, however, that the most relevant source among the secondary sources which can be used to relate Shari’a to modern times is maslaha mursala (unrestricted public interest). This source reveals the pragmatic side of Islamic Shari’a and its ability to challenge stagnation and adapt to different situations and environments. This is because that maslaha mursala essentially considers the interest of the community as basis for law making.

The late renowned Muslim jurist Mustafa al-Zarqa gives a detailed account of the aspects of modern life in which maslaha mursala could be employed as a device for adaptation. These include various political, economic, legal and social fields.101 It is the maslaha mursala on which jurists might provide the legal framework for modern day developments in science, culture and new legal institutions. We will see in the next chapter how maslaha mursala is used to justify IP protection in Shari’a.102

Professor Muhammed Kamaili summarises the role of the secondary sources of Islamic Shari’a: ‘These [sources] are all designed, each in their respective capacity, to relate the Shari’a to social reality, to serve as instruments of adaptation, and provide formulae for finding solutions to new issues’.103

The sources of Islamic Shari’a have been put into action in modern times by various Islamic institutions; however, the best-known model is the one of International Islamic Fiqh (jurisprudence) Academy in Jeddah, Kingdom of Saudi Arabia. Ever

100 Zedan, above n 30,192 Yūsuf al-Qaradawi, al-Fiqh al-islami bina al-asāla wa al-tajdīd (Maktabat Wahba 1999) 41. 101 Al-Zarqa above n 18, 114 et seq. 102 It should be noted however, that the chapter four of this research will discuss the grounds upon which the jurists considered IP within maslaha mursala. 103Muhammed H Kamali ‘Fiqh and Adaptation to Social Reality’ (1996) The Muslim World Vol. LXXXVI, No1, 72.

since its establishment in 1978 this Council has dealt with various issues related to technology, medicine and legal matters and adapted Shari’a to them through the usage of its principles as laid down in the Qur’an and the Sunnah, and more importantly through the secondary sources where maslaha mursala plays a particularly important role. Instances in the field of legal issues include:104

 Shari’a’s rules regarding IP;

 The sale of trade names and commercial licenses;

 real estate financing;

 the execution of contracts through modern means of communication;

 international rights in Islam;

 auction contracts;

 banking transactions; and

 medical liability.

In issuing the fatwa (Shari’a based legal opinion) regarding these matters, jurists studied in detail their technical aspects with assistance from experts, and balanced the pros and cons of each matter in light of the objectives of Islamic Shari’a.

As can be inferred from the above discussion on the secondary sources, maslaha mursala is the most important among them due to its practical importance. In the following chapter, this research will rely mainly on maslaha mursala to determine Islamic Shari’a’s position on IP as contained in its international framework and as understood in predominant international policymaking.

2.5 The Place of Islamic Shari’a in Modern Legal Systems

2.5.1 Sphere of Influence

Islam is the predominant religion in many countries around the world, extending from Malaysia, Indonesia and the Chinese borders in the East to Mauritania in the

104 See for example, the decisions of International Islamic Fiqh Academy, starting from the first round in 1978 to the 19th round in 2009, Fiqh Academy, qararat, http://www.fiqhacademy.org.sa/ English translation available online: .

West. It is a belief within Muslim communities that Islamic Shari’a should be the only source of legislation in Islamic countries.105 This belief can be attributed to two interrelated reasons. Firstly, Islam does not separate devotional and legal matters. Secondly, through the lapse of time, Islamic Shari’a has become a cultural component of the lives of Muslims which affects every aspect of their lives including the law making process.106

Theoretically, it is undisputed in Islamic scholarship that Islam and its rules are a complete way of life in which no separation is allowed between devotional issues and legal matters in the state’s affairs. It is a pillar of Islamic faith that the rules which regulate civil transactions, marriage and criminal conduct stem from the same sources which regulate devotional issues such as prayers and fasting. Adhering to the Islamic regulation of transactions and devotions is a prerequisite for any individual to be a Muslim.

Unlike the widespread secular thought developed in Western nations, which explicitly separates church and state, Islam does not allow for this separation. In this context the Council of Islamic Fiqh Academy maintains that:

Islam is a religion, a state and comprehensive way of life. It is suitable for every time and every place. It does not approve of the separation between religion and life. It requires that all laws and regulations emanate from it, and that practical life follows its system whether in politics, economics, sociology, education, media, or any other sphere of life.107

Major Islamic institutions call upon Muslims to enforce Islamic Shari’a in their daily affairs and send recommendations to Muslim rulers and legislative bodies to consider Islam as the only source of legislation and ensure that any new law to be enacted is compliant with the principles of Islamic Shari’a since the latter is a ‘belief as well as legal system, a code of conduct and way of life’ 108

2.5.2 The Practical Role of Islamic Shari’a

Practically, at present, governments in countries with predominantly Islamic populations vary in the degrees to which Islamic Shari’a is integrated within their

105 Omar Suliman al-Ashqar, mu’awīqat tatbīq al-sharia ali-slamiyya fi ʿasrina (Dār al-Nafā’īs1992) 13 seq. 106 John Hursh, ‘The Role of Culture in the Creation of Islamic Law’ (2009) Indiana Law Journal. 107 Council of the Islamic Fiqh Academy: Resolution No 99 (2/11) 1998, above n 104. 108Islamic Fiqh Academy, Resolution no 48 (10/5) (at December 1988) Islamic Fiqh Academy, 96

legal systems. Apart from marriage and the rules of inheritance, which stem purely from Islamic origins in the overwhelming majority of Islamic countries, other aspects of the legal system such as contracts, banking, commercial transactions and criminal conduct are Shari’a based in some Islamic courtiers and secular in others. It should be noted that a detailed explanation of all contemporary Islamic legal systems goes far beyond the scope of this chapter. Therefore, this chapter will confine itself to a discussion of selected jurisdictions in the Islamic world and Libya, since the latter is intended to be a case study for this thesis.

2.5.2.1 The Place of Shari’a in Selected Jurisdictions

Countries throughout the Islamic World differ in the degree to which Islamic Shari’a is integrated in their legal systems. However, they can be classified as follows:

Group A: Countries in which Islamic Shari’a plays significant rule in the process of legislation where all the laws and regulations have to be consistent with the principles of Islamic Shari’a. This group includes Saudi Arabia109 and Libya.

Group B: This group includes countries in which Islamic Shari’a is considered as a source of legislation, and comprises the majority of Islamic countries. The degree to which the principles of Shari’a are reflected in the process of enactment and enforcement of the state’s laws and regulation varies. While in some countries Shari’a is considered ‘the principal source of legislation’ in others it is considered as ‘a source of legislation’ or only as ‘the religion of the state’. The first group includes Egypt110 and Yemen111 and the second includes Algeria112and Morocco.113

Group C: The last group consists of countries with predominantly Islamic populations and which have secular legal systems. In this group, which includes

109 Saudi Basic Governing System (1992) available on line at: (24/8/2011). 110 See art 2 of the Egyptian Constitution. Available on line at: . 111 See art 3 of the Yemeni Constitution (1994) available online at: 112See art 3 of the Algerian Constitution available online at: 113 See art 3 of the Moroccan Constitution (1996) available online at:

Tunisia114 and Turkey,115 the influence of secularism is very strong and has even reached the stronghold of Islamic Shari’a, that is, marital status.

2.5.2.2 Place of Islamic Shari’a in Libya116

Islam entered Libya in the eighth century. 117Since then it has been an essential component of Libyans’ cultural life.118 After the establishment of the modern Libyan state under the Monarch Constitution of 1951, Islam was officially considered as the religion of state119 and a primary source of legislation.120 After the collapse of the Monarchy in 1969 in a coup d’état led by Ghaddafi, the constitutional documents adopted by the subsequent regime stressed the supremacy of Islamic Shari’a in the structure of Libya legal system.121

After the collapse of Ghaddafi’s regime in 2011, the Libyan National Transitional Council issued the Interim Constitution with stronger commitment to the supremacy of Islamic Shari’a in Libya’s legal system as stated in article one of the Constitution.122 Several indicators reveal that Islamic Shari’a will continue to play a significant role in the law making process in Libya. These indicators include the establishment of Islamic parties, 123 a new law banning all types of interests on

114 See for instance the Tunisia Constitution, available online at: . 115 Although Turkey is a country with predominant Islamic population, Islam is not considered constitutionally see the Turkish constitution of 1982. Available online at: 116 For a detailed account on the role of Islamic Shari’a in Libya, particularly from the seventh century until the eighteenth century see Faraj Najem, Tribe, Islam and state in Libya: analytical study of the roots of the Libyan tribal society and interaction up to the Qaramanli rule (PhD Thesis, the University of Westminster, 2004). 117 Muhammad bin Saoud, General History of Libya (British Military Publications, 1948) 109. 118 Libyan Supreme Court, no 197/39 (1997) (on file with author) this decision states that the Libyan legislature has to ensure that any laws to be enacted are compliant with Shari’a. 119 Article five of Libyan Constitution of 1951, available online at: . 120 See for instance, art 2 of the Libyan Civil Law of 28 November1953. 121 See for instance art 2of the Constitutional Declaration of Libya which was issued in 1969: . This declaration was followed by a decision in 1970 to form a committee to revise the Libyan legal system to be Shari’a-compliant. As a result the work of the committee several pieces of legislation have been amended, such as the civil law, criminal law and commercial law. Contracts became required to be Shari’a compliant, hudud (Shari’a based criminal penalties) were imposed for extra-marital relationships and for drinking alcohol. See also the so-called Declaration of People’s Authority in Libya (1977). .. 122Libyan Interim Constitution, 2011. 123 For instance see ‘Muslim Brotherhood forms party in Libya’ Aljazeera,, 4 March 2012 .

banking transactions (riba)124 and new policies for the Islamisation of the banking sector.125Moreover, on 9 November 2013, the Minister of Justice announced the establishment of a special committee which will ensure that laws and regulations in Libya are consistent with the sources and principles of Islamic Shari’a.126

2.6 Conclusion

For those with knowledge of the higher objectives of Islamic Shari’a, the rules derived from its sources could run like a golden thread through the legal systems of the Islamic states to relate them to modern reality.127 Islamic Shari’a is not a rigid and fixed 1,400 year-old set of rules that aim to govern an advanced society; rather, it is comprised of guidance and principles that may be adapted to various environments.

This chapter has introduced notions of Islamic Shari’a and has shown how it is relevant in modern times.

Firstly, within Islamic societies, the sources of Islamic Shari’a govern devotions and all aspects of daily life including legal affairs. Accordingly, it strongly influences culture and law-making in those societies.

Secondly, the sources of Islamic Shari’a can be divided into primary sources and secondary sources. The primary sources contain flexible principles that can be read differently in different contexts to provide flexibility to Shari’a and they also provide authority for the secondary sources.

Thirdly, the secondary sources are the most relevant in the process of relating Islamic Shari’a to contemporary times. Among the secondary sources, we observe that maslaha mursala (consideration of public interest) is based on a pragmatic philosophy as it considers the interests of the Muslim society in adapting new issues to the sphere of Islamic Shari’a. Maslaha mursala has been used to relate emerging issues in science, technology and law to Islamic Shari’a.

124 For instance see, ‘Libya Bans Interests’ Aljazeera 7 January 2013. . 125 See for instance, Central Bank of Libya, Rules and Measures on Islamic Banking: . 126 Minister of Justice’s decision no 1621/2013 on Form a Special Committee. See Ministry of Justice, Decisions, 127 W. M Ballantyne, above n 22, 48.

Finally, Islamic Shari’a is concerned with ensuring the welfare of the community and preventing harm. Therefore, Muslim scholars developed the concept of maqasid al- shari’a (the objectives of Islamic Shari’a). Maqasid al-shari’a operates as a normative framework for Islamic-based law making process. It instructs lawmakers to ensure that laws and policies are designed to promote five essential objectives: religion, life, mind, lineage and wealth. In Chapter 4, the impact of some of these objectives on IP is discussed.

The following chapter discusses how principles derived from the Qur’an, the Sunnah and other sources of Shari’a, including maslaha mursala, have been used by scholars, commentators and institutions to integrate IP into Islamic Shari’a.

Chapter Three

The Place of Intellectual Property in Islamic Shari’a

3. 1 Introduction

Islamic Shari’a has a continuing relevance in modern Muslim societies, shaping and influencing legal, social and cultural life.1 However, while Islamic Shari’a continues to be generally relevant, it needs to be asked whether it is relevant to the contemporary concept of IP?

In response to this question, David Price asserts that ‘it would be a mistake to assume that Qur’an and [Sunnah] are no longer relevant to an IP context, and that they will not have any influence in the future dynamics of the IP regimes’. 2 Nevertheless, it would not be realistic to assume that specific rules for IP will be found in the textual sources of Islamic Shari’a. Consequently, commentators have focused on the general principles of the Qur’an and Sunnah as well as on the non- textual sources in their task of linking the concept of IP to Islamic Shari’a.

In order to understand the place of IP in Islamic Shari’a, this chapter gives an overview of the current status of IP protection in Islamic jurisdictions and demonstrates how Islamic civilisation dealt with the type of creativity which the current IP systems seek to protect. It will then discuss the way scholars, academics and commentators view IP from an Islamic perspective introducing and analysing the arguments of the opponents and proponents of Islamic Shari’a’s potential to recognise and protect IP. This chapter’s final and primary concern will be to review and evaluate the existing literature on IP and Islamic Shari’a, and provide a substantial critical analysis in order to define the proper scope for further research.

As will be shown throughout the following sections of this chapter, the existing literature on IP and Islamic Shari’a has demonstrated no clear distinction between Shari’a’s stand on the abstract concepts of ownership over ideas, on the one hand,

1 Chapter 2, 34. 2 David Price, ‘The Dynamics of Intellectual Property Protection in the Arab Gulf States’ (2007) 3 (1) International Review of Business Research Papers 158.

and its position on the existing regulation of IP as laid down in relevant international conventions on the other hand.

Before examining the place of IP in Islamic Shari’a, the status of IP protection in Islamic jurisdictions will be considered.

3.2. Intellectual Property Status in Islamic Jurisdictions

When judged by the current international standards of IP protection and enforcement, many Islamic countries lack adequate protection and enforcement, to the extent that some are considered to be ‘hot beds for the unauthorised use and duplication of intellectual property’.3

In Islamic Countries, as in other developing countries, the Western concept of IP is perceived as culturally based, prioritising the interests and the needs of developed countries, and promoting ideas and concepts which are unsuited for the particular situations of Islamic countries.4 The results of this perception can be observed in copying and infringing activities in the Middle East, the main centre of Islamic culture. John Carrol notes that:

Middle Easterners are purchasing copied goods in stunning amounts...strong profits and [laxity] of copyright enforcement reportedly encourage even drug dealers to change professions and embark on careers in illegal music distribution. Iranian publishers routinely translate and copy foreign works of authorship, irrespective of the wishes of foreign copyright holders. American television programming has been regularly [rebroadcast] without permission... Unlike other most industrialised countries, Turkey has a history of refusing to enforce IP rights in order to stimulate its generic pharmaceutical industry. Trademarks are routinely used without permission throughout the Middle East. One in three after-market automobile parts sold in [UAE] are inauthentically labeled.5

3 Chad M. Cullen, ‘Can TRIPS Live in Harmony with Islamic Law? An Investigation of the Relationship between Intellectual Property and Islamic Law’ (2010) SMU Sci. and Tech. L. Rev, 1. The accusation directed at Islamic countries started before the TRIPS era — it is believed to have started decades earlier. Richard. E. Vaughan, ‘Defining Terms in the Intellectual Property Protection Debate: Are the North Arguing Past Each Other When we Say ‘Property’ A Lockean, Confucian and Islamic Comparison’ (1996) ILSA Journal of Int’l and Comparative Law Vol. 2, 332. 4 Vaughan above n 3, 318. 5 John Carrol, ‘Intellectual Property Rights in the Middle East: A Cultural Perspective’, (2001) Fordham Intel. Prop, Media and Ent. L. J Vol 14, 557. Although this observation is dated back to 2001 it is still relevant to our present day as it will be seen in USTR’ special report and other international reports. See for instance USTR, Achieves of 301 Special Reports, available online at:

Developed countries which have commercial interests with Islamic countries seek to promote the adoption and enforcement of IP laws that best serve their interests.6 The most cited example is the United States (US), which can be used as a model to illustrate the gap between international standards of IP protection and enforcement and their practical application in Islamic countries which are US commercial partners.

The US went beyond the international standards laid down in the Paris and Berne Conventions and the Agreement on Trade Related Intellectual Property Rights (TRIPs) to more enhanced and strict protections through Free Trade Agreements (FTAs)7 with a number of Islamic countries.8 The tool used by the US to protect and enforce IP 9 and to exert pressure on its commercial partners including Islamic countries, is known as the ‘Special 301 Report’ (the Report). 10 This Report is prepared by United States Trade Representatives to examine IP protection and enforcement in the legal systems of United States trade partners.

If we look at the Priority Watch List and the Watch List11 in the Report from 2007 to 2011, it can be seen that the overwhelming majority of Muslim nations included are classified as violators of IP rights. The Islamic countries in the Report for 2011 are:12

. 6 Josh Martin, Arab Governments Back Stricter Patent Laws, available online at: . 7 Muhammed H. Hassanien, ‘Bilateral WTO-Plus Free Trade Agreements in the Middle East: A Case Study of OFTA in Post TRIPs Era’ (2007-2008) Wake Forest Intellectual Property Journal Vol. 8, 162. The rules concerning intellectual property which the US includes in its FTAs with its commercial partners are known as TRIPS-Plus as it includes stricter protection than that provided by TRIPS (ex. in US FTAs the term of copyright protection is 70 years instead of 50 as stated in TRIPS) 8 United States have four Free Trade Agreement with Islamic nations; namely, Bahrain, Oman, Jordan and Morocco. See the Office of USTR at . 9 David Price, ‘The Dynamics of Intellectual Property Protection in the Arab Gulf States’ (2007) International Review of Business Research Papers Vol. 3 No 1 March 2007, 151. 10 The name of this report stems from section 301 of the US Trade Act (Trade Act 1974) which requires United States Trade Representative to report on the Global status of intellectual property protection. 11 Whether a country is listed on the priority watch list or watch list depends on the severity of intellectual property infringement. 12 Other Islamic Countries such as Saudi Arabia were placed on the watch list for 2009 and removed from that of 2010. USTR Special Report 2010: . This report states that ‘Saudi Arabia significantly improved its IPR protection and enforcement regime and as a result was removed from the Watch List in February 2010, following the conclusion

A. Priority Watch List: Algeria, Indonesia and Pakistan.

B. Watch List: Egypt, Kuwait, Tajikistan, Turkey, Uzbekistan and Turkmenistan.13

The basis on which the ‘Special 301 Report’ determines that a country should be included in the Watch List or the Priority Watch List is the level of compliance of the IP laws and enforcement measures within the given country with international standards as prescribed in the TRIPs or in chapters concerning IP in the US FTAs.14 The existence of a significant number of Muslim countries in the Watch List and Priority Watch List suggests that these vast infringement activities within those countries might have shared grounds. Some commentators maintain that these common grounds are as follows.

The first and most important ground relates to the compatibility of IP with Islamic Shari’a. The rules of Islamic religion influence the formation and enforcement of laws as well as influencing culture.15 Because IP law is originally a Western legal concept, it is perceived by many not to be sourced in Islamic Shari’a. It is therefore seen as permissible to engage in actions amounting to the duplication of intellectual goods, especially those of foreign origin16.

The second ground suggested by commentators is that IP legal standards were set at the international level during a period when the overwhelming majority of Islamic countries were colonised17 or during a time where there had been no opportunity for them to participate in the standard-setting process. Therefore, many believe that IP rules are the product of ‘external pressures’ and that ‘the states do not yet have ... the

of an OCR. Enforcement, prosecutions, and transparency issues were successfully addressed in the past year, and the United States will continue to engage with Saudi Arabia to address remaining issues’, 5. 13The 2011 Special 301 Report is available online at (26 September 2011), the other reports for 2007, 2008, 2009 and 2010 are available on the same website. The Priority Watch List of 2011 includes 12 countries and the Watch List for the same year includes 28 countries. 14 Ibid 6. 15 See John Hursh, the Role of Culture in the Creation of the Islamic Law 1423; Chapter 2 of this thesis. 16 Heba Raslan above Ch 1 n 42, 498; John Carroll, above n 5, 11. 17 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), 307

infrastructure or the cultural mores to execute [them] to the level of satisfaction of the developed countries’.18

Finally, although many Islamic countries, especially in the Middle East and North Africa, have upgraded their IP laws during the past decade,19 these laws remain largely unimplemented due to the ‘lack of public knowledge and governments’ expertise’20 which is needed to enforce them. This could be attributed to the fact that IP enforcement is not a priority for the relevant authorities in many Islamic countries due to high administrative costs, which are largely seen as burden for developing countries.

Laws are sensitive to their local and cultural context. In order to ensure the effectiveness of a given law, it has to be relevant to the social and cultural context of the society it addresses. For many Muslim countries, especially Libya, that society and culture are conducted in the context of Islamic Shari’a. Accordingly, a study of the Islamic stance towards the current system of IP is required, in order to articulate a more comprehensive and enforceable system that takes into consideration the effects of Islam within its rules. Such a study should embark from an understanding of how the creativity which prompts a need for IP protection has been dealt with in Islamic civilization.

3.3. Creativity and its Protection in Islamic Civilisation

The knowledge contained in the Islamic religion has been transmitted from generation to generation by way of narration. Both the Qur’an21 and the Sunnah were carefully preserved. When the Qur’an was collected in one book, during the time of the third caliph Uthman B. Affan (d. 656 CE), enormous efforts were exerted to verify the literal transmission of the Qur’anic text from various sources into the new

18 Price above n 9,147. Price, in another study further emphasised the cultural factor as a main contributor to the lax of adequate protection and enforcement of intellectual property in the Gulf States. David Price, the Development of Intellectual Property Regimes in the Arabian Gulf States: Infidels at the Gates (Routledge 2009) 9. 19 These include all the Gulf States, Egypt and Tunisia. 20 Chad M. Cullen, above n 3, 63. 21 With regard to the Qur’an, God Almighty has promised in the Qur’an itself to preserve it from any derogation or alteration ‘Indeed, it is We who sent down the Qur'an and indeed, We will be its guardian.’ Qur’an, 15:09.

book.22 Furthermore, a completely discrete discipline was developed to protect the authenticity of the transmission of the Prophet’s sayings (Hadīth s), that is, ʿilm al- Jarh wa al-Taʿdīl (science of Hadīth authenticity).23 Ali Khan has described the ‘protected knowledge of Islam as a form of intellectual property. The Qur’an, the [Sunnah] and the unique marks and symbols of faith together constitute the protected knowledge of Islam’,24 the owner of which is God almighty.

This is not to say that Islamic civilisation up till now acknowledged what is recognized today as intellectual property. 25 Although, it was highly advanced in comparison to its counterparts in its early stages, in aspects of the legal system such as civil and commercial transactions (especially contracts), 26 like other ancient civilisations27 it did not develop an indigenous counterpart to the concept of IP.

Nevertheless, Islamic civilisation has contributed to the progress of humanity with an enormous variety of advancements in different fields of human knowledge. In the

22 Ibn Sirin reports that Uthman b Affan appointed a committee of twelve companions to verify the Qur’anic text and make sure that what will be transmitted in the new mushaf (the Book of Qur’an) is the text which was revealed to the Prophet (PBUH). For more on this see Muhammad Mustafa Al- A'zami, the History of the Qur'anic Text from Revelation to Compilation: A Comparative Study with the Old and New Testaments, (UK Islamic Academy) 89. 23 This science is considered one of the Sunnah sciences and it is mainly concerned with the study of the chain of narrators from the Prophet (PBUH) to preserve the knowledge of the Prophet and avoid any false attribution to him. The history of this science dates back to the era of the companions, which started after the demise of the Prophet in (632 CE) and continued to evolve throughout the stages of Islamic Fiqh. On the history of the science of ʿilm al-Jarh wa al-Taʿdīl, see Adnan Ahmed Atef, ʿilm al-Jarh wa al-Taʿdīl: ahmeyatuh, wa Tarīkhe’hi, wa qawaʿidihi’, (Majalat Markaz Buhūt al-Sunnah wa al-Sīra, Qatar University 1987), Vol. 2, 422. And for detailed account on the rules of this science see Ibn al-Mulaqin, al-Mughni fi ʿulūm al-Hadith (Dār Fawaz, 1992). 24 Ali Khan, ‘Islam as Intellectual Property: My Lord! Increase me in knowledge’ (2000-2001) Cumberland Law Review, Vol. 31, 361, at 631. 25 In fact the absence of the notion of human ownership of ideas or their expression is a common feature of the all pre-modern civilisations. Carla, Hess, ‘The Rise of Intellectual Property, BC 700- CE 2000 : An Idea in the Balance’ (2002) Daedalus: Spring, available online at: . 26 Islamic Jurisprudence since its early days and especially within the era of the four schools of law (tenth century) has dealt with the law of contract in a manner the effects of which is still apparent until our present day where it gave comprehensive classifications for contracts such as sale (bayʿ), rent (kira’) and contracts related to performances (ististnaʿ), the jurists discussed the conditions of these contract, the legal capacity to conclude them and their effects in terms of validity or invalidity. For more information see, Islamic World, Contracts in Islamic Commercial and their Application in Modern Islamic Financial System, available online at: http://www.islamic- world.net/economics/contract_03.htm 27 This assumption applies precisely to the Chinese civilisation. See Alford, William P, To Steal a Book is an Elegant Offence: Intellectual Property Law in Chinese Civilisation (Stanford University Press, 1995) 2.

following sections, various manifestations of Islamic tradition regarding the management of ownership over ideas will be discussed. These are derived from the role of authorship in early Islamic culture, and the institutions established to supervise and promote creativity and bodies which functioned as quasi-IP enforcement authorities.

3.3.1 Position of Authorship (Ta’līlf) in Islamic Civilisation

Since the pre-Islamic period, known as Jahiliyya,28 original authorship in literary works, specifically, poetry has been highly regarded.29 At that time, the emergence of a professional poet in a tribe was a matter of supreme importance. The words of the poet were considered to be the most effective weapon30 in defending the tribe against other tribes because a poem plays a role as a repository for recording the major events in a tribe.31

With the advent of Islam, poetry remained a matter of great social importance. Consequently, the Qur’an addressed it in a separate sura (chapter) titled ‘the Poets’32 in recognition of its influence on various social affairs. In this sura the Qur’an classifies the types of poetry which are compliant with its teachings and those which are not.33

If a poet creates a poem, their work is transmitted to the public by recitation. Each time the poem is recited, the person reciting it must include the full name of the poet, and by putting his or her name over the poem a poet could claim ownership of it.34 With the expansion of the Islamic states beyond the Arabian Peninsula to other cultural centres such as, Damascus, Baghdad, Cairo, Qayrawan, Fez and Cordoba,

28 Jahiliyya means ignorance and it refers to the condition in which the Arabs lived prior to the revelation of the Qur’an. 29 Basic forms of trademarks of intellectual property were recognised in the pre-Islamic and post Islamic period; however such forms have not gone through sustainable development as the case with original authorship. Amir 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, 155, and Azmi, observed that trademarks have not been addressed in Islamic Law Ida Azmi, above n 17. 30 Allen, Roger, Introduction to Arabic Literature (Cambridge University Press 2000) 65. The Arabs describe their poetry as (diwan al-arab), namely; repository of Arabs. 31 Ibid 109. 32 Qur’an: 26. 33 Patrick S. O’Donnell, ‘Poetry and Islam: An Introduction’ (March 2011) CrossCurrents, Volume 61, Issue 1, pages 72–87, 73. 34 Khory above Ch1 n 12,155.

the importance of poetry increased. 35 Fine poets were guaranteed a place in the courts of Caliphs and other rulers of Islamic regions and were granted monetary consideration for the poetry they produced.36

Due to the high status enjoyed by poets, some less creative individuals tried to ‘cash in’ by forging or plagiarising others’ poems. These practices were strictly monitored and harshly condemned,37 and were punishable by banishing the wrongdoer from the community (among the most severe of punishments).38 Ibn Salam (d. 846 CE), in his highly acclaimed treaty Tabakat Fuhūl Ashu’ara (Classifications of Prominent Poets), referred to claims and counter-claims of poem thefts from the pre-Islamic period till his death.39

In 950 CE, the first factory to produce papers was established in Baghdad, the capital of Abbasid Caliphate40 After that, paper production flourished with the establishment of factories in other cities within the Islamic states such as Cairo, Granada, Toledo and Cordoba.41 The increase in paper production significantly contributed to raising the levels of authorship and book production.42 Authors were regularly paid for their intellectual production. An independent profession known as warraq (book seller/publisher) existed in various cities in the Islamic states which bought books from authors and resold them to the public.43 Muslim rulers bought books from authors at excessively high prices in some cases. For instance, the ruler of Andalusia, al-Hakam al-Mustansir (d. 976 CE) paid 1,000 golden dinars to purchase the book of Abu al-Faraj al-Issfahani known as al-Aghani (book of songs). 44 Nonetheless, copying and translating had been common practice and no restrictions were imposed

35 Patrick S. O’Donnell, above n 186, 73. 36 Khory above Ch 1 n 12, 155. 37 Silvia Beltramitti, ‘The Legality of Intellectual Property Rights Under Islamic Law’, (2009) Prague Yearbook of Comparative Law 56. 38 Khory, above Ch 1 n 12, 155. 39 Ibn Salam al-Jamahi, Tabakat Fuhūl Ashu’ara (Umm Al-Qura University) avialble online at:

on them, 45 apart from certain restrictions related to ensuring the attribution and integrity of the original texts. In this context, one commentator reports that a warraq was able to copy and resell the books he had bought from the authors provided that the attribution and integrity of the original texts were observed.46

Special emphasis was placed on attribution and the integrity of intellectual production, known today as the authors’ moral rights. Two examples can be invoked to support this claim. The first is the concept of isnad (chain of narrators), which had been developed to authenticate the attribution of the Prophet’s Hadīths. Ibn Khaldun (d. 1406 CE) narrates that it was a common practice in the movement of authorship in Islamic civilisation that authors identify previous authors and narrators from which they have obtained the content of their books.47 Secondly, warraqun (book sellers/publishers) were not able to communicate the books to the public before obtaining Ijāza (approval) from the author that confirms the integrity of the text. Books usually began with a phrase which indicates that the content of the book was heard from the author (samaʿun ʿan) and copied by a specialised person known as nasikh (copier).48 The concept of Ijāza resembles the right to publish granted to authors in civil law jurisdictions.

Abd al-Raman al-Suyuti (d.1505 CE) provides a key example that demonstrates the importance of preserving the authors’ moral rights. He authored an entire book that dealt with the infringement of moral rights.49 His book al-Fariq bayn al-Musannif wa al-Sariq or ‘the difference between the original author and the infringer’ gives a detailed account of the importance of honesty in recognising original authorship, by giving examples from various works of Islamic Jurisprudence that show how eager jurists were to attribute the opinions they cite in their own books to the proper person.50 He further speaks of personal experience where two of his books were copied by a third party without acknowledging his rights over them. Sayouti used

45 Taha Baqqir, Mujaz fi Tarikh al-Ulum wa al-Ma’ ārif (al-Dār al-Dawliyya li al-Istithmarat al- Thaqafiyya, 2002) 168. 46 Hamed Deyab, al-Kutub wa al-Maktabat fi al-Andalus above n 41, 65. 47Ibn Khaldun, al-Muqaddimah, (Bayt al-Ulūm wa al-Funūn wa al-Adab, 2005) Vol 2, 322, for more see Hamed Deyab, al-Kutub wa al-Maktabat fi al-Andalus above n 41, 73. 48 Ibid 64-65. 49 Abd Alrahman al-Suyuti, al-Fariq bina al-Musanif wa al-Sariq (ʿ alim al-Kutub, 1998). 50 Ibid 40.

various expressions of condemnation to illustrate his dissatisfaction about the alleged theft.51

In this context Hassan and Hilli observe that:

The condemnation of... copying is consistent with the principles on creativity and originality. Creativity and Originality have been highly regarded in the Islamic historical academia and scholarship. Crafts, textiles, pottery, and bookbinding: all were normally signed with the author’s name, dated and inscribed with the place of manufacture to indicate origin and authorship 52

Furthermore, Professor Fathi al-Dirini observes that Imam al-Qarafi (1260 CE) was amongst the first jurists to discuss the possibility of transferring an intellectual product through inheritance. Imam al-Qarafi discussed in very broad terms the possibility of considering valuable assets related to the intellect of the deceased as mal (property) and thus transferable to his or her heirs.53 Although he concluded that such assets are not transferable, it remains significant that he studied the issue of intellectual assets in the 13th century, and recognised that an individual could have personal rights over her or his ideas.54

3.3.2 Islamic Institutions Promoting Creativity

Islamic states during different historical eras and in different geographical locations have established institutions to supervise and promote the creation and dissemination of intellectual products. These institutions were called Maktabat (libraries); however, some commentators rightfully debate this label, as they were more than ‘store houses for books but seen as centres for learning and teaching’.55

What is unique about these institutions is that they demonstrate how Islamic states since the ninth century have recognised the intellectual creations of their residents not only morally but practically. Apart from providing a forum for learning, budgets

51 Ibid 33. 52 Hassan and Hilli, Islamic Technology (Cambridge University Press) par. 8-9. Cited in Azmi, Intellectual Property in Islam, above n 17, 132. 53 Fathi al-Dirini , Haq al-Ibtikar fi al-Fiqh al-Islami al-Muqāran (al-Risāla Foundation 1977) 55. 54 Ida Azmi, ‘Basis for the Recognition of Intellectual Property in Light of the Shari’ah’ (1996) International Review of Industrial Property (IIC) Vol 27, 650. 55 Roldah Adams, ‘Historical development of Islamic libraries internationally and in South Africa : a case study of the Islamic Library in Gatesville’ (2003) Cap Peninsula of Technology 6 available online at: .

were allocated through the Maktabat to compensate individuals for writing books and producing scientific inventions.56

However, the history of these institutions does not inform us that they provided comprehensive protection of intellectual products. Apart from a primitive protection of moral rights, the dissemination of knowledge through reproduction and duplication was widespread and even encouraged. This supports the conclusion that the early Islamic civilisation did not develop an indigenous counterpart of IP as we know it today.

The institutions which supervised creativity and authorship in Islamic civilisation include: Bayt al-Hikma (House of Wisdom) in Baghdad, Dār al-’ilm (House of Knowledge) in Cairo and the Library of Cordoba in Andalusia (Spain).57

3.3.2.1 Bayt al-Hikma (House of Wisdom)

Bayt al-Hikma was founded in Baghdad during the Abbasid Caliphate (750-1517 CE). It is believed to have been established under the rule of Caliph Abu Jafar al- Mansour (714-775 CE)58 and significantly expanded under the rule of Caliph al- Mamun B. Haroun al-Rashīd (813-833 CE).59 Bayt al-Hikma should not be confused with the Fatimid Dār al-’ilm (House of Knowledge) as both were founded in different historical eras and geographical areas as will be seen later.60

The main purpose for establishing Bayt al-Hikma was to promote scientific authorship and discoveries and to translate scientific books from other civilisations such as the Greek, Persian and Indian.61 Since the Caliph Al-mamun was a scientist himself, he gathered other scientists such as al-Khawarizmi, the founder of Algebra,

56 Hassan and Hilli, above n 52. 57 It is noteworthy that the Islamic civilisation contained other knowledge centres such as the al- Madrasa al-Mustansiriyya in Baghdad which was established in 1200s CE al-Madrasa al- Mustansiriyya contained educational hospital and over 80,000 books and 248 researchers. Essam Abd Al-Ra’uf, Tarīkh al-Fikr al-Islami , above n 40, 186. 58 Said De Youji, Bayt al-Hikma, (Maktabat Kunuz al-ʿilm, 2006) 33. 59 Ibid, 35, see also Amira K. Bennison, The Great Caliphs: The Golden Age of the Abbasid Empire, (Yale University Press 2009) 179. 60 Halm Heinz, Fatimids and their Traditions of Learning, (I. B. Tauris and Company, Limited in Association with the Institute of Ismaili Studies 1997, 73. 61 Said De Youji, al-Hikma, above n 58, 35 and Essam Abd Al-Ra’uf, Tarīkh al-Fikr al-Islami , above n 40, 199.

and compensated them for their scientific achievements.62 Bayt al-Hikma contained approximately 200,000 books and was equipped with one of the two observatories in Baghdad dedicated to scientific research.63

Bayt al-Hikma was divided into different sections, firstly, qism al-takhlīd (the deposition section), where authors of that era were eager to deposit their books.64 Secondly, qism al-naskh (the reproduction section), which was tasked with making copies of the books deposited in qism al-takhlīd.65 Thirdly, qism al-tarjama (the translation section) which specialised in translating books from different languages into Arabic. It has been reported that the books of Plato, Aristotle, Hippocrates and Galen were first translated into Arabic in Bayt al-Hikma.66 Finally, qism al-ta’līf (the authorship section), in which authors would write books to be placed in Bayt al- Hikma in exchange for monetary compensation.67

The point of interest for this study is that, although authors had been compensated for the books and discoveries they produced, there is no indication that authors or inventors enjoyed exclusive rights over their intellectual creations. This is evident from the fact that books were translated and copied at large scale without reference to any right of the first authors’ to object to the reproduction of their works.

3.3.2.2 Dār al-’ilm (House of Knowledge) 1005 CE68

Dār al-’ilm was founded during the ruling period of the Fatimid69 Caliph al-Hakim- bi-Amre-Allah (996-1021 CE). Dār al-’ilm functioned to promote knowledge and creativity and was the largest knowledge centre in the world with 600,000 books on its shelves as well as various innovative devices.70 Dār al-’ilm is seen as an example of the level of advancement that Islamic civilisation had reached in that distant era compared with other civilisations.

62 Muhammed Hamdadeh, above n 73. 63 Essam Abd al-Ra’uf, Tarīkh al-Fikr al-Islami , above n 40, 195. 64 Abd al-Basit A. al-Alussi and Uthman A al-Muhammadi, ‘Min Rawaiʿ ' al-Hadāra al-Islamiyya: Bayt al-Hikma Numūdhajan’ (2009) Journal of Deyalla, and Essam Abd Al-Ra’uf, Tarīkh al-Fikr al-Islami , above n 40 194. 65 Ibid. 66 Said De Youji, al-Hikma, above n 58, 20. 67 Abd al-Basit A. al-Alussi and Uthman A al-Muhammadi, above n 64. 68 Common Era. 69 The Fatimid Caliphate ruled various areas in Muslim world such Egypt, the Maghreb, Sudan, Sicily, the Levant, and Hejaz from 909 C.E to 1171 CE. 70 Said De Youji, al-Hikma , above n 58, 44.

Taqi al-Dīn al-Maqrizi 71 (1364-1442 CE) gives a detailed account of the establishment and functions of Dār al-’ilm . al-Maqrizi states:

On Saturday 10th of Jamadi al-Akhera 395 Hijri [equivalent to 23 March 1005 CE], the House of Knowledge was opened in Cairo. Jurists gathered there and the books were carried from the castles [of the Caliph]. People were allowed in and permitted to read and copy from the books. ... General public, linguistic and grammar scientists and physicians gathered and used ... the books of literature and sciences which were carried to Dār al-’ilm under direct orders from al-Hakim bi-Amr Allah.

People from all walks of life were allowed to enter ... he [the Caliph] allocated rizq (monetary compensation) for scientists working in the House … people were coming for different purposes: reading books, copying them or to get specialised knowledge ... the Caliph provided the house of knowledge with all necessary stationary such as ink, pencils and papers.72 (Emphasis added.)

Al-Maqrizi further narrates that the Caliph ordered the relevant officials to manage the budget of the house in a certain manner and allocated to each department of the house specified amount of money.73

What is interesting about the above quotation in terms of IP is that the Fatimids’ state recognised the right of scientists to receive monetary compensation for their intellectual creations, and allowed people to freely use them in a manner that resembles to a large extent the modern concept of Open Access to Knowledge.74 Additionally, mass reproduction of the books at Dār al-’ilm was allowed and no restrictions have been identified except those known in Islamic traditions on authorship at that time, namely, attribution and integrity.

Dār al-’ilm also promoted scientific inventions. It was there that the most accurate astronomical chart of the time was developed to calculate the exact length of the Muslim’s lunar year, with modern day accuracy. Al-Hasan B. al-Haitham, the author of the most pioneering optical inventions of that period, is also reported to have benefited from the resources of Dār al-’ilm. 75

71 Egyptian Historian. 72 Taqi al-Dīn al-Maqrizi, al-Mawaʿid wa al-Eʿtibar, 518. This book is out of copyright and the cited version available online at: . 73 Ibid 518. 74 Anne Fitzgerald, Open Access Polices, Practice and Licensing (CRC SI, 2009), 3. 75 Halm Heinz, Fatimids and their Traditions of Learning, (I. B. Tauris and Company, Limited in Association with the Institute of Ismaili Studies, 1997) 76.

3.3.2.3 The Library of Cordoba

When Islamic civilisation expanded to Andalusia (now Spain), spreading and implementing knowledge was an essential part of the policy agenda of the Muslim rulers. Muslims brought with them pioneering knowledge in different fields such as engineering, agriculture and astronomy. 76 However, the most significant advancement in this regard was the establishment of the specialised and highly advanced research centre known as the Library of Cordoba.

The Library of Cordoba was established under the rule of caliph al-Hākam ibn Abdu al-Rahman (961–976 CE). As was the case with al-Mamun ibn Haroun al-Rasheed, the founder of Bayt al-Hikma, al-Hākam was a scientist himself with state budget that exceeded twelve million golden dinars. 77

The Library of Cordoba contained over 400,000 books in different languages such as Arabic, Latin, Persian and Indian. As is the case with Bayt al-Hikma, the Library of Cordoba was divided into different sections such as the reproduction, translation and authorship sections. Scientists across the religious spectrum worked in the Library and produced vast amounts of knowledge that has benefited humanity until today, in various fields such as medicine, philosophy, engineering, mathematics and astronomy.78

Although caliph al-Hākam had allocated budgets to purchase books from scientists in Andalusia and overseas,79 the large number of books in the Library did not come only from purchasing. The free flow of knowledge and the absence of the desire to control reproduction and translation rights had significant impact on the richness of scientific content the Library of Cordoba enjoyed.

3.3.3 IP-like Enforcement Authorities in Islamic Civilisation (hisbah)

Hisbah, an institution which existed from the early days of Islamic civilisation can be described as an IP-like enforcement authority. Hisbah worked to ensure that the

76 Bettany Hughes, When the Moors Ruled in Europe (Directed by Timothy Copestake, 2005) available online at: . 77 Hamed Deyab, al-Kutub wa al-Maktabat fi al-Andalus , above n 41, 70. 78 Ibid, 111-120. 79 Essam Abd Al-Ra’uf, Tarīkh al-Fikr al-Islami (Dār al-Fikr al-Arabi,1997) 196.

commercial practices in suq (marketplaces) were compatible with the rules and principles of Islamic Shari’a. The modern trademark system works to the same effect.

Hisbah basically means commanding what is good and prohibiting that what is wrong according to the sources of Islamic Shari’a. 80 Hisbah finds its legal justification in the Qur’an: ‘And let there be [arising] from you a nation inviting to [all that is] good, enjoining what is right and forbidding what is wrong, and those will be the successful.’81 In addition, the Prophet (PBUH) used to visit marketplaces to ensure that the ethics and injunctions contained in the Qur’an were respected and no cheating was taking place in commercial transactions. The Prophet is reported to have said ‘whoever cheats us is not one of us’.82 The companions of the Prophet who took leadership after his death continued to inspect markets, which further enhanced the development of hisbah in later historical stages of the Islamic world.83

Hisbah remained a concept until it developed into one of the institutions of the Islamic state during the Abbasid Caliphate (750-1517 CE), where the office of muhtasib (the person who takes count of good and wrong of the people) was formally established.84 The muhtasib performed quality control tasks across a vast range of trades and professions including doctors, bakers, blacksmiths, bookbinders, booksellers, butchers and slaughterers to ensure origin and quality requirements, and to prevent unfair competition.85

However, what is interesting and potentially relevant to IP, is that the muhtasib used a distinctive seal to ensure authenticity and conformity of weights, measures and units with market requirements and regulations.86 This resembled what is known

80 Muhammed K. Imam Islam, Usūl al-Hisbah fi al-Islam (Institution of Ahram for Publications and Distribution,1998) 15. 81 The Qur’an, 3:104. 82 Muslim, hadith no: 262325. 83 Muhammed K. Imam, above n 80, some commentators believe that the Hisbah was established since the time of the second Caliph Umar Ibn al-Khatab (d. 643 C.E). Abbas Hamadani, The Muhtasib as Guardian of Public Morality in the Medieval Islamic Cities, (University of Wisconsin 2008), 4. 84 Ibid 5. 85 Hassan Halaq, Dirasāt fi Tarīkh al-Hadāra al-Islamiyya (Dār al-Nahda al-Arabiyya, 1999),73. 86 Amira, above n 59, 154 Amira states that ‘in Fatimid Cairo, a special office was set up next to the Muhtasib’ s headquarters with equipment to check weights and measures, and mechants were obliged to take their scales and weights there to be checked and stamped before they could use them’.

today as certification marks. Counterfeiting that seal was considered a serious crime.87

One commentator further argues that:

Muhtasib functioned as a ‘living trademark’ by ensuring the continued quality of products in the marketplace. One of the trademark’s functions is to assure the customer of the continued and constant quality of products bearing the trademark. The muhtasib, through his continued supervision of the marketplace, ensured that merchants and producers would sell authentic products of quality, hence similarity between the function of Hisbah and trademarks.88

Although Islamic civilisation recognised some aspects of IP, early Muslims did not seek to control the knowledge and literature which they had produced. Many Muslim authors and entrepreneurs, driven by Shari’a’s encouragement for knowledge sharing and dissemination,89 were eager to allow the public to have access to their work as way of gaining thawab (reward) in the Hereafter. 90 This is probably one of the reasons that there are arguments about the legitimacy of IP under Islamic Shari’a.

3.4. Arguments Regarding the Legitimacy of IP under Islamic Shari’a

This section reviews the existing literature on IP and Islamic Shari’a. It traces and examines the main arguments on IP and Shari’a and identifies areas for further research.

The concept of IP and its recognition and protection from an Islamic perspective has been a subject of debate amongst the contemporary commentators on Islamic Shari’a91 who are split into different camps92 which could be described as follows.

3.4.1 Opponents of IP Protection

Notwithstanding the flexibility provided by the different sources of Islamic Shari’a, some scholars are not convinced that they can be applied to accommodate IP. The arguments presented by the opponents of IP protection vary, but can be categorised

87 Khory, above n Ch 1, 12 182. 88 Ibid. 89 Chapter five of this thesis will elaborate more on this issue. 90 Muhammad. M. al-Shanqitti, Dirāsa Shar’iyya li Aham al-ʿuqūd al-Maliyya al-Mustahdatha (Maktabat al-Ulūm wa al-Hikam, 2006) Vol 2 at 740. 91 Price, above n, 26. 92 Raslan, above Ch 1 n 42, 502.

into two distinct approaches. The first is the most extreme: that Shari’a does not accept IP as it is a tool imposed by the West, which would be of no benefit to the Muslim community.93 An aspect of this approach was summarised by Mufti Taqi Usmani (who supports IP protection) as claiming that the primary sources of Shari’a and the juristic views of Muslim scholars have not supported the protection of intangible objects. Furthermore, knowledge in Shari’a cannot be subject to private ownership.94 In that vein, the late Mufti of Pakistan, Sheikh Muhammed Shafe’e, issued a legal opinion (fatwa) stating that authorship and inventions are acceptable as means of income, but it is not permissible to exclude others from using them, as they represent only an abstract right which is not protected according to Shari’a’s rules.95

Likewise, others who oppose IP protection claim it prevents others from benefitting from knowledge, which contradicts hadīth (Sunnah) of the Prophet (PBUH), who is reported to have said ‘the one who conceals knowledge would appear on the day of resurrection as reined in a bridle of fire’. This hadīth is particularly relied upon by some scholars to reject copyright protection, as it might entail the concealment of Knowledge.96

As for the second approach, it does accept the acquiring of benefits from the work of the mind and recognises that creative works should receive compensation; 97 however, it rejects the contemporary IP legal framework, as it might contradict fundamental rules within the system of civil transactions in Islamic Shari’a. This view is advocated by Professor al-Nadawi (a member of International Islamic Fiqh Academy) with regard to copyright. Professor al-Nadawi argues that:

93 Qais Mahafzah, Melhem, Ali Basemand and Hitham Haloosh, ‘The Perspective of Moral and Financial Rights of Intellectual Property in Islam’ (2009) Arab Law Quarterly, Volume 23, 464 and Raslan, above Ch 1 n 42, 501. 94 Mufti T Usmani, Copyright According to Shari’a available online at: . This opinion might be based on an old juristic view within the Hanafi School of Jurisprudence which restricts the ownership to tangible objects (Al’Ayyan) only. See Imam al-Sarkhasi, al-Mabsūt (Dār al-Sa’āda, 1912) Vol 11. 95 Cited in Abu Zīd A Bakr, ‘Mulkiyyat al-Ta’līf Tarīkhan wa Hukman’ (1986) 2 (2) Journal of International Islamic Fiqh Academy 220. 96 Abdul-Same’ Abu al-Khīr, above Ch 1 n 9, 1; Muhammed Amanullah, ‘Author’s Copyright: An Islamic Perspective’ (2006) 9 (3)The Journal of World Intellectual Property 303. Although the argument presented by the two authors deals with copyright, it is relevant because copyright is a form of IP and the basis of the opinion illustrated above applies to all forms of IP. 97 Abi al-Hasan al-Nadawi, al-Ister’ad al-Fiqhi li haq al-Ta’līf wa al-tibā’a (al-Risāla Foundation, 1977) 149.

[T]he author [in a publication contract] of a book is not compensated on its work with fixed amount of money; rather it is compensated according to the acceptance of its book in the market and the number of copies which were sold. Accordingly, the monetary consideration of the contract between the author and the publisher is unknown precisely at the time of concluding the contract. This ambiguity surrounding the consideration enters into gharar (sale by speculation or indefiniteness) and the Prophet (PBUH) strongly forbade sale by speculation.98

A publication contract is a transaction which involves copyright. If there is gharar in such a transaction then the Islamic prohibition of gharar applies to that specific transaction and should not be generalised to be seen as objection to the IP system. This issue is dealt with below.

3.4.2 Objections to Intellectual Property

The objections which will be addressed below are based on the assumption that there are underlying inconsistencies between some injunctions of the Qur’an and Sunnah and certain pillars of the IP system. These inconsistencies might affect the nature and scope of the protection afforded to some forms of IP.99 This section examines these objections and considers whether they can be justified.

3.4.2.1 Intellectual Property and the Concealment of Knowledge

The Qur’an contains various ayat (verses) that disapprove of the concealment of anything that is good for society.100 With regard to ʿilm (knowledge), it has been reported that the Prophet warned Muslims against the concealment of knowledge as it is the common property and the shared heritage of all humankind, the owner of which is God. 101 In authentic hadīth the Prophet said ‘the one who conceals knowledge would appear on the day of resurrection as reined in a bridle of fire.’102 A broad initial reading of this saying is that every person who attains knowledge that would benefit other members of the society must disclose such knowledge and share

98 Ibid 151. 99 Jamar D. Steven, ‘The Protection of Intellectual Property under Islamic Law’ (1992) 21 Cap U.L Rev, 1093. 100 For instance see the following ayat (verses) in the Holy Qur’an, 2:42, 2:140, 2:174 and 371. 101 Azmi, above Ch1 n 11, 197, 650. 102Nasr al-Dīn al-Albani, Sahih al-Targhīb wa al-Tarhīb, 29 . The translation quoted from Muhammed Amanullah above n 96, 303.

it with them without any restrictions. Moreover, the Prophet encourages sharing and the dissemination of knowledge when he is reported to have said that ‘there is no other form of Sadaqah (charity) that equals knowledge which is being disseminated’103

What needs to be asked at this stage is: does IP fall within the prohibition of the concealment of knowledge according the abovementioned hadīth? In other words, does the protection of knowledge underlying patents and copyright lead to the concealment of knowledge from an Islamic perspective?

The modern concept of IP is based on property rights over ideas or forms of expression that give the right holder time-limited monopolies.104 These monopolies are embodied in the form of exclusive rights over the subject matter (which could be thought of as knowledge) to exclude others from using the intellectual products without permission or monetary compensation. According to some commentators this might contradict the Islamic prohibition of the concealment of knowledge.105

However it is not accurate to conclude that IP leads to the concealment of knowledge in the meaning of the above-quoted hadīth.106 A closer look into the mechanisms of IP reveals that the overall structure and rules of IP does not lead to the concealment of knowledge which is prohibited under the hadīth.107

For instance, the basic forms of IP (copyright and patent)108 contain mechanisms that allow for knowledge to be disseminated in exchange for compensation to the rights holder for a limited period. Furthermore, in a wide range of circumstances, knowledge underlying IP rights can be disseminated without the consent of the rights holder and without any compensation.

103 Abduazim al-Munziri, al-Targhīb wa al-Tarhīb min al-Hadīth al-sharīf (Dār al-Fikr) 121. Cited in Azmi, above n 54. 104 It is noteworthy that various prophetic hadiths condemn the monopolisation of products and commodities which have public interest at heart. For examples of these Hadiths please see Abduazim al-Monziri, above n 103, 249. 105 Price, above n 9, 27. 106 Professor Ida Azmi (above n 54, 671) concludes that ‘there are prophetic Hadith allowing a person to be selective of the recipient of information; therefore, a person has the right to control the disclosure and the audience of his work. In this respect, it is submitted that it is not the privatisation of ideas that leads to their monopolisation, but only the exclusive control of them’. 107 Ibid, 653. 108 Trademark is not included as the intangible subject matter in trademarks is not knowledge.

With regard to copyright, there are various mechanisms within the copyright system that operate to prevent the type of concealment mentioned in the hadīth. For instance:

 Copyright protects only the form of expression and not the underlying idea,109 so that any person could use any discovered idea without any restrictions. For example, if an author created software program, a third party could use the idea (knowledge) underlying the program to develop his or her own version;

 Where there is an overriding public interest in the dissemination of copyright knowledge, the copyright system neutralises the exclusive rights of the owner, and grants users the right to use the subject matter without permission. This is known in copyright systems as ‘exceptions and limitations’, such as use for educational purposes, reporting news, parody and satires, and fair use;110

 Exclusive rights over the copyright subject matter are not permanent. Generally, after the elapse of fifty years after the death of the author the subject matter enters into the public domain and can be freely used and exploited.111

On the other hand, the patent system has its own mechanisms which are supposed to ensure that the knowledge underlying the patent is disseminated. These include:

 The scope of patentability is limited by certain restrictions. Consequently not all knowledge can be subject to private ownership. For instance discoveries, scientific theories, laws of nature and mathematical methods are not patentable.112

 The patent system requires the inventor to fully disclose patent information; such disclosure is considered the main requirement for granting the inventor patent rights.113

109 Anne Fitzgerald and Brian, Fitzgerald, Intellectual Property in Principle (Lawbook, Sydney, 2004) 84. 110 For example see Australian Copyright Act, 1968 sec 40 et seq. 111 Art 7 of Berne Convention for the Protection of Literary and Artistic Works (1886). 112 Fitzgerald, above n 109, 282. 113 See art 29 of the TRIPS Agreement.

 As in copyright, where there is an overriding public interest that necessitates using the patented invention, it may be used without permission from the owner.

 Also as in copyright, the exclusive monopoly of the patentee over the invention is not permanent, and normally ends after the expiry of twenty years from the application date.114

It is widely accepted in the IP literature that any individual who uses his intellect to write a software program or invent a machine should be entitled to benefit financially from his creation. And to do so, a certain degree of protection is required, to be able to prevent others from making use of the intellectual item in a way that prejudices the legitimate interests of the creator. However, this protection does not necessarily prevent others from accessing the relevant intellectual creation. Accordingly, the prohibition against the concealment of knowledge in Islamic Shari’a should not involve the prohibition of transactions involving knowledge115 as it is possible to both disseminate knowledge and take money for it simultaneously.116

Nevertheless, this does not mean that the current regulation of IP is fully consistent with Islamic Shari’a principles, including those aspects related to the dissemination of knowledge. As will be discussed in the subsequent chapters of this thesis, Islamic Shari’a’s prohibition of the concealment of knowledge and encouragement of its dissemination may raise certain challenges for the current regulation of IP as laid down in its international framework.

3.4.2.2 Islamic Shari’a and the Subject Matter of Intellectual Property

The scope of protectable subject matter under the international and Western IP systems is very broad when compared to what could be accepted as protectable subject matter according to Islamic Shari’a. Generally, the scope they provide for protectable subject matter is limited only by public order and morals117 which in themselves are loose concepts, and substantially affected by the liberal understanding

114 See art 33 of the TRIPS Agreement. 115 Ida Azmi, above Ch1 n 13, 77. 116 Muhammed Amanullah, above n 96, 305. 117 Not all the Western IP laws explicitly consider the public morality within its structure. For instance, Australian Patent Law of 1990 does not address this concept.

of personal freedom.118 Islamic Shari’a has its own concept of morality, which is believed to be much narrower than that of the West.119 This has a bearing on the protection of IP.

Even if we concluded that Islamic Shari’a could accept the existing international IP paradigm, such acceptance might be limited by certain dictates from the main sources of Islamic Shari’a. In this section, Shari’a’s stance on the subject matter of copyright, patent and trademark will be examined.

3.4.2.2.1 Copyright

In their early days, copyright laws functioned as a ‘form of censorship’.120 Courts denied copyright on the grounds of morality; any works which were considered immoral were refused copyright protection. This historical attitude may no longer be relevant in the majority of jurisdictions.121

There are various copyright subject matters protectable according to the current international standards which raise problems when examined under the rules of Shari’a. For instance, literary works which contain what Shari’a deems as inappropriate language or pornographic content are not protectable under Islamic Shari’a as the ideas underlying them are not accepted in Islamic Shari’a. 122 Accordingly, any idea or form of expression which is worthy of punishment in Islamic Shari’a cannot be protected according to its rules.123

3.4.2.2.2 Patent

In a decision concerning scientific research, the Council of Islamic Fiqh (Jurisprudence) Academy stated:

Islam does not set up any obstacle…to the freedom of scientific research that constitutes a means to discover the order established by God Almighty in His creation. Nevertheless,

118 For instance the Berne Convention does not specifically consider immorality as a barrier to granting copyright. 119 Ida Azmi, above n 54, 286. 120 Ibid. 121 Ibid. 122 M. A. Naser and W. H. Muhaisen, 'Intellectual Property: An Islamic Perspective' (2008-2009) 56 J. Copyright Soc'y USA 571, 584. 123 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) 36.

Islam stresses that the door cannot be left wide open, without restriction, to the generalised implementation, without limit, of the results of scientific research, without examining them closely in the light of Shari’a, so to authorise what is lawful ‘halal’ and prohibit what is [unlawful] ‘haram’. It is not allowed to apply a discovery just because such an application is technically possible124

This confronts the widespread Western belief that ‘anything under the sun made by man can be patented’.125 Certain discoveries and inventions will definitely fall within the scope of haram subject matter. According to the Qur’an, any modification to the living organism in a way that contradicts the order established by God Almighty is condemned.126 In light of this, ‘the human body or parts of human body must be excluded from patentability. Inventions which involve processes for modifying the genetic identity of the human body must be excluded from patentability as they are contrary to the dignity of man’127 from an Islamic perspective.

Additionally, invented devices which promote activities that are contrary to the dictates of Shari’a, such as gambling, will not be granted patent protection according to any Shari’a-compliant patent act.

In some Islamic countries, Shari’a’s stance on the scope of patentability has been explicitly considered. The patent system of the Gulf Cooperation Council (GCC) in Article 2 stipulates that for an invention to be patentable it should not contradict the rules of Islamic Shari’a. 128 Article 4 of Saudi Patent Law 129 and Article 2 of Industrial Property Rights130 both carry provisions to the same effect.

3.4.2.2.3 Trademarks

The rules of Islamic Shari’a prohibit the consumption and trading of certain products and services such as alcoholic beverages, 131 pork132 and casinos. In any Shari’a-

124 Resolutions and Recommendations of the Council of Islamic Fiqh Academy, 1985-2000, 209. 125 Diamond v. Chakrabarty, 447 US. 303 (1980). 126 The Qur’an (Yūsuf Ali trans) 4:119. 127 Ida Azmi, above n 54, 670. 128 Patent System (GCC), Available online at (4 October 2011). 129 Saudi Patent Law, available online at: (4 October 2011). 130 Industrial Property Rights and their Enforcement for the Sultanate of Oman (Royal Decree No. 67/2008). 131 The Qur’an (Sahih International trans) 5:90. 132 The Qur’an (Sahih International trans) 5:3.

compliant trademark law, the registration, and thus the protection, of any trademarks associated with any of these products would be denied.

It is common practice in Muslim countries in general and in some Gulf States in particular to reject the registration of trademarks or geographical indications relating to wines, spirits and other alcoholic beverages. 133 In Libya, the Implementing Regulations of Libyan Trademark Law exclude alcoholic beverages from the registrable trademarks.134

The impact of the rules of Islamic Shari’a on IP matters means the exclusion of some subject matter and items from protection, such as certain literary works, discoveries or goods. However, it does not mean Islamic Shari’a cannot recognise and protect of the ownership of ideas in general.

3.4.2.3 Intellectual Property and Maysir

The word Maysir is derived from the word yusr, which literarily means easy.135 The Qur’an encourages Muslims to gain their livelihood (rizq) through work. Therefore it prohibits acquiring money without labour, as in gambling.136

Some forms of intellectual creation could yield enormous revenues for the creator who might have spent little effort and time in making the relevant item. For example, a writer of a novel might spend a couple of months writing a novel which would bring hundreds of millions as revenues through the sale of books or from its derivative works. The same thing applies to an inventor of a machine or process who might acquire disproportionate profits to the initial investment made by the inventor through licensing or rent seeking practices.137 The question which arises here, does the easy profit generated in situations such as these falls within the scope of Maysir?

133 Price, above n 9, 31. 134 Libyan Ministry of Economy and Trade, Implementing Regulations of Libyan Commercial Law (as amended by Decision no 86/2004). 135 Raslan, above Ch 1 n 19, 528. 136 The Qur’an (Sahih International trans) 5:90: ‘O you who have believed, indeed, intoxicants, gambling, [sacrificing on] stone alters [to other than Allah], and divining arrows are but defilement from the work of Satan, so avoid it that you may be successful’. 137 Khory, above n Ch 1, 12,188.

Some commentators observe that ‘the prohibition against [Maysir] may be relevant in IP transactions if the profit generated is significantly disproportionate to the time and money invested in developing and marketing the creation’138

Nevertheless, it could be argued that the Qur’an encourages working to generate wealth and does not impose any restrictions on individuals so long as they seek profit through legitimate methods of income of which mental work is one as will be discussed below. In the majority of cases the right holder of an intellectual creation does not generate income without incurring responsibility in the form of renewal fees, taxes, and compensation in all cases where their creation causes harm to others. It is also clearly established in Islamic scholarship that with certain degree of responsibility, the well-known rule of Islamic Shari’a ‘al-kharaj bi al-dhaman’ (reward comes to those who could be held accountable) applies. One relevant aspect of this rule basically means that every person who assumes responsibility over something has the right to claim whatever benefits might come from the exploitation of that thing.139 When applied to IP, this means that if the right holder could be held accountable for any harm that might be caused by his intellectual creation, he should benefit from the fruits of that creation regardless of the quantity of the generated benefits.

In addition, Maysir should not negatively affect the recognition and protection of IP because of mechanisms within the IP system that could be used to control the dissemination of the product in a way that takes into consideration the public interest and the legitimate interests of the right holder to benefit from her or his creations (ex. compulsory licenses and user rights).

3.4.2.4 Indefiniteness (Gharar) and Intellectual Property

It is a fundamental rule within the system of civil transactions in Islamic Shari’a that the contracting parties must have complete knowledge of the countervalues (subject matter of the contract) to be exchanged in their transaction. The chief reason for

138 Raslan, above Ch 1 n 19, 529. 139 For information regarding this rule see: Jalal al-dīn al-Suyuti , al-Ashbah, above n Ch 2, 82, 35.

establishing this rule is to protect the weak party in a contract against any exploitation that might occur by the strong party.140

Accordingly, Islamic Shari’a prohibits uncertainty (gharar) in contracts and requires that all transactions should be devoid of any speculation or risk. Nabil Saleh141 observes that the following rules should avert gharar in any given transaction: a. There should be no want of knowledge (jahl) regarding the existence of the exchanged countervalues. b. There should be no lack of knowledge regarding the characteristics of the exchanged countervalues or the identification of their species or knowledge of their quantities or the date of future performance, if any. c. Control of the parties over the exchanged countervalues should be effective.

The absence of the above mentioned conditions would result in the contract being invalid.142 This strict approach, which requires complete certainty about the subject matter of the contract, might negatively affect the validity of certain transactions involving IP.

For instance, when licensing trade secrets, according to Shari’a the parties must have complete knowledge regarding the subject matter, which means that the licensor must disclose to the licensee all the relevant information. This would be problematic as the subject matter is the information itself, which, if disclosed, would have no value and might deter the potential licensee from concluding the contract.143

In addition, and as mentioned above, some scholars maintain that a publication contract might fall within the prohibition of gharar. In certain circumstances an author does not know in advance the exact monetary consideration that will be paid to her/him at the time of concluding the contract, as this is determined according to

140 Nabil A. Saleh, Unlawful Gain and Legitimate Profit In Islamic Law, (Graham and Tortman 2nd Ed 1992) 62. 141 Ibid 66. 142 Ibid 70. 143 Beltramitti, above n 37, 74 It should be stressed that the prohibition of gharar would only be problematic in contracts involving licensing trade secret so its effect should not be overstated as it will not hinder the licensing agreements in general. Raslan, above Ch 1 n 12, 530.

external factors such as the acceptance of the book in the market and the number of copies sold.

As is the case with Maysir, gharar does not constitute a critical objection against Islamic Shari’a’s recognition of IP. If a dispute arises with regard to gharar in a trade secrets or publication contract, the general principles of contract law in Islamic Shari’a should be applied on case by case basis.

3.4.2.5 Inheritance (Mīrath) and Intellectual Property

The rules of inheritance are addressed in detail in the main sources of Islamic Shari’a. Therefore, they are categorised as an area of Islamic Shari’a which cannot be the subject of any alterations or leeway interpretation whatsoever.144 These rules require that the property of a deceased person should be transferred to their legitimate heirs.145 If no heirs exist at the time of its entitlement then it should be transferred to the state, and no exception is permitted to this rule.

Normally, in a joint authorship situation, if one author dies leaving no heirs, his part in the ownership of the work is transferred to the other co-authors and not to the state.146 Some commentators believe that this contradicts the rules of inheritance in Shari’a and that the deceased’s share should be transferred directly to the state.147

The claim that there is a conflict between Shari’a and the rules of joint authorship in international copyright systems is not well established. As with all legislation in any given country, the laws of IP represent the will of the state. Accordingly, if these laws grant co-authors the right to acquire the share of the work belonging to the deceased author, this would mean that the state has assigned its rights to the co- authors. This could just as easily be the case for a state basing its laws on Islamic Shari’a as for any other state’

144 Yūsuf al-Qaradawi, Mudkhal li Derāsat al-Sharia al-Islamiyya (Maktabat Wahba 2009) 279. 145 The Qur’an (Sahih International trans) 4:7 ‘For men is a share of what the parents and close relatives leave, and for women is a share of what the parents and close relatives leave, be it little or much - an obligatory share’. 146 Beltramitti, above n 37, 76; Raslan, above Ch1 n 12, 534, gives an example of this from art 174 of Egyptian intellectual property law which breaks the rules of inherence in Shari’a as it gives the co- authors the right to the portion of the deceased instead of transferring it to the state. 147 Beltramitti, above n 37 and Jamar, above n 99, 1100.

It can be understood from the various objections to IP considered above that there is no serious conceptual conflict between Islamic Shari’a and the recognition and protection of IP.148 However, there are certain injunctions and principles in Islamic Shari’a which may limit the scope of the protectable subject matter or invalidate certain transactions related to IP.

3.5. Proponents of Intellectual Property Protection

Within Islamic scholarship there are few arguments that support the view that Islamic Shari’a opposes IP. The majority of contemporary Muslim scholars149 submit that Islamic Shari’a recognises IP rights and ‘there is nothing in [its rules] that enjoins or contravenes protecting and enforcing intellectual property’. 150 On the contrary, the principles derived from the Qur’an and Sunnah along with the non- textual sources of Shari’a seem to provide strong support for the recognition and protection of IP.

3.5.1 The Position of Intangible Property in Islamic Shari’a

The first argument which can be used to support Shari’a’s recognition of IP is the concept of mulk (property). Under Islamic Shari’a, if anything is considered to be property, it is granted very strong protection to the extent that in certain circumstances, a trespass on others’ property could be punishable with amputation of the hand.151 The question then arises as to whether the Islamic concept of mulk could be extended to IP.

In answering this question, commentators have considered the position of intangibles (manfa’ah) within Islamic Shari’a.152 Professor al-Dirini, who studied the four main schools of Islamic jurisprudence (Hanafis, Malikis, Hanbalis and Shafies), asserts

148Cullen, above n 3. 149 Islamic websites are filled with legal opinions issued by Muslim scholars in the field of intellectual property, particularly copyright, stating that Islamic Shari’a recognises and protects intellectual property. It is noteworthy that even with religious knowledge; the scholars maintained the opinion that no form of expression should be infringed regardless of its nature. For more information see some of these opinions: http://guyanamuslims.org/viewtopic.php?f=59&t=439 http://www.bakkah.net/interactive/q&a/aamb080-copyrights-translations-intellectual-property.htm

that the majority of those schools (Malikis, Hanbalis and Shafis) accept intangibles as a subject of ownership (mulk), as for tangible property.153

Only the classical scholars of the Hanafi School of law reject intangibles as a form of property. This is because they consider physical possession as a fundamental requirement to regard anything as property. Therefore, they only accept tangibles as mulk.154

Professor al-Dirini further argues that ‘[t]here is nowhere in the Holy Qur’an, the Sunnah, nor in any other source of Islamic Shari’a that you will find a text that states [in a direct or in indirect way] that intangibles are not a subject of property’.155

An example of the classic juristic acceptance of intangibles in Islamic Shari’a can be found in the writings of the distinguished Muslim scholar, Imam al-Qarafi (d. 1260 CE), who states in one of the most comprehensive works of Islamic jurisprudence (al-Furuq) that the concept of mulk (property) includes Manfa’ah (usufructuary rights) and intangibles. 156

Another commentator argues that the opinion of the majority of Muslim scholars (which recognises intangibles as a form of property) is worthy of consideration as it can be extended to encompass IP rights, 157 since the latter is classified in the category of intangibles. This is because the intangible right of IP is a form of usufructuary right (manfaʿah),158 and since there is no authority in the sources of Shari’a denying protection for manfaʿah, 159 the first of the abovementioned secondary sources of Shari’a (Qiyas) could be used to encompass IP under the concept of manfa’ah and therefore recognises it as mal or mulk.160

153 Al-Dirini i, above Ch 1 n 9, 20. The view held by the majority is supported by Prophetic approval that manfa’ah could be mal as it has been reported that the Prophet approved teaching the Qur’an — usufructuary act — as a dowry and only mal (property) could be used as dowry which meant for many scholars that manfa’ah is a form of property. Azmi, above n 54, 660. 154 Raslan, above Ch 1 n 12, 517. 155 Al-Dirini i, above Ch 1 n 9, 42. 156 Al-Qarafi, al-Furuq (Dār al-Salam, 3rd ed, 2010),vol 3, 1009. 157 Husain H. Shalgami, Wasa’il himayat al-mulkiyya al-fikriyya fi al-fiqh al-islami wa al-qanūn al- wadʿi (PhD Thesis, al-Azhar University, 2004) 91. 158 Ida Azmi, above Ch 1 n 13, 54. 159 See page 32 in the second chapter of this thesis for definition of Qiyas. 160 Al-Dirini, above Ch 1 n 9, 34.

To sum up, Islamic Shari’a does not only recognise tangible assets as property, intangible assets also are recognised and protected. Therefore, extending Islamic Shari’a’s recognition to IP based on Islamic Shari’a’s recognition to manfa’ah is ‘methodologically correct’.161

3.5.1.1 Generation of Wealth

Through its main sources, Islamic Shari’a calls upon Muslims to work to create wealth and enhance the welfare of the community. The Qur’an advises Muslims to ‘seek from the bounty of Allah’.162 The Prophet (PBUH) himself used to trade for his family and praised trade that leads to acquiring wealth for the benefit of all members of the society.163 There were no limits to wealth generation except that it should come from legitimate sources and contribute to the good of all.

IP is granted to legal persons to ensure that any person who spends time and effort in developing something useful to humankind is given a chance to benefit from their creation. However, the ultimate aim is to ensure the innovation within the society is encouraged and boosted as it is fundamental to wealth generation in society. A certain level of IP protection is needed to create ‘new technologies, products and services, describe new ways of doing things and expand the cultural richness of the society’164

Accordingly, IP generally meets one of the highest objectives of Islamic Shari’a, that is, the preservation of wealth for humankind and maintaining the welfare of the community. 165 This means that adequate protection for authors, inventors and trademark owners would be compatible with and encouraged by Islamic Shari’a.

3.5.1.2 Legitimate Labour in Islam and Intellectual Property

Islam’s appreciation of labour (aml) has been used to justify the recognition of ownership over ideas.166 Various verses in the Qur’an167 and Sunnah encourage and

161 Ida Azmi, above Ch 1 n 13, 71. 162 The Qur’an: 62:10. 163 Khory, above Ch1 n 12,165. 164 Keith Eugene Maskus, Intellectual Property Rights in the Global Economy (Institute for International Economics, 2000) 27. 165 See the second chapter of this thesis, page 29. 166 Azmi, above n Ch, 13, 113. 167 The Qur’an (Sahih International trans) 4:32; 35: 10; 16:97 and 9: 105.

praise labour.168 In the authentic book of Sahih Al-Buhkari the Prophet (PBUH) is reported to have said: ‘No one ever ate better food than from the work of his own hands; and Allah’s Prophet David used to eat from the work of his own hands’.169 This appreciation of the work of the hand necessitates the protection of its fruits. Because labour is considered to be a legitimate source of acquiring property, the property which stems from labour should, accordingly, be respected. Does the concept of labour in Islam include mental labour?

Azmi contends that ‘mental labour, in any case, should not be treated differently from any other kind of physical labour’170 as the term labour in Islam is broad and flexible enough to include physical as well as mental exertions.171

The fact that the main sources of Islamic Shari’a do not directly or indirectly require the term ‘labour’ to be confined to physical effort supports this conclusion. In cases where there is no textual authority in a given issue, the Islamic jurisprudential rule of al-asl fi al ashya al ibaha172 (permissibility is the default status in legal affairs) applies. Applied here, this rule would mean that labouring on ideas is permissible according to Islamic Shari’a and the fruits generated from such labour should be protected in the same manner as the products of physical labour. This provides additional support for the recognition and protection of IP.

3.5.1.3 Productivity in Islam and Intellectual Property

Islam recognises that the creative act of making something useful could be a means of acquiring ownership.173 It is established in Islamic jurisprudence that if a person

168 Azmi, above n 54, 663 asserts that’ Muslim scholars have developed the first acquisition theory into a labour theory, i.e. which holds that a man can only obtain what he strives for. According to this theory, the yardstick for economic gain is labour. She cites Ibn Khaldon, leading Muslim scholar in social sciences (1406 CE), where he states in his well know book of al-Muqaddimah (The Introduction) ‘the effort to (obtain sustenance) depends on God’s determination and inspiration. Everything comes from God but human labour is necessary for every profit and capital accumulation. It has thus [became] clear that gains and profits, in their entirety or for the most part are value realised from human labour’. 169Al-Maktabah Al-maqru’a, sharh riyad al-salihin, vol 3. http://www.ibnothaimeen.com/all/books/printer_18205.shtml 170 Azmi, above n 54, 664. 171 Beheshti, ‘Ownership in Islam’ (English translation by Ali Reza Afghani Foundation of Islamic Thought Tehran 1988). Cited in Azmi, above n 54, 664. 172 For detailed account on this rule see Al-imam Al-Suyuti , al-ashbah wa al-nazayer, above n Ch 2, 82, 65. 173 Jamar, above n 99, 1085.

occupies an unclaimed piece of land for a certain period of time and spends effort and money to develop it and exploit it in a productive and fruitful manner, he or she will have the right of ownership over that land. This injunction finds its origin in a prophetic Hadīth which states that ‘whoever revives a dead/vacant piece of land shall own it’.174 The rules covering this means of ownership are comprehensively organised in the classical works of Islamic jurists under the title of ihya al-mawat (developing or improving vacant land).

This concept (ihya’ al-mawat) reflects Shari’a’s appreciation of all human endeavours that amount to create new things or develop and improve existing things for the benefit of humankind.175The concept of ihya al-mawat resembles the concept of ‘moral desert’ (entitlement for the fruits of labour) that is widely used in Western IP scholarship to justify IP protection and enforcement.176

Accordingly, creative individuals who apply their intellect to produce something unique or put their efforts into a copyrightable material, an invention or a trademark that distinguishes their products or services are no less worthy of legal protection than their counterparts who develop a vacant land. They are probably more worthy of protection than those who develop vacant land given the increasing importance of the information economy and the broader advantages of intellectual products over physical ones.

3.5.1.4 Islamic Shari’a Condemns Deceitful Practices

If the concept of ʿamal (labour) in Islamic Shari’a is inclusive of mental and physical efforts then the fruits of one’s mental labour should be respected. Accordingly, additional justification for the protection of rights over the products of intellectual effort can be found in direct injunctions within the Qur’an and the Sunnah which praise honesty and fairness in trade, and prohibit any deceitful acts or unjust commercial practices.177

174 Mansur al-Bahūti, Kashaf al-Qinaʿ ʿan matn al-Iqnaʿ (ʿālam al-Kutub, 1997) 398. 175 Raslan, above Ch 1 n 12, 518. 176 Compare Khory, above n Ch 1, 12, 169. 177 For the authentic Hadiths relating to trade, see translation of Sunnah book of Sahih Al-bukhary. Available online at:

One commentator has argued that ‘[v]arious verses of the Qur’an prohibit deceitful practices such as imitation and counterfeiting’ 178 which by their nature fall also within the scope of ‘unscrupulous acts’ condemned by Islamic Shari’a. Examples of these verses include:

Plead not on behalf of those that are unfaithful to themselves’179

O you who have believed do not betray Allah and the Messenger or betray your trusts while you know [the consequence]180

And those who harm believing men and believing women for [something] other than what they have earned have certainly born upon themselves a slander and manifest sin181

Surely Allah will defend those who believe; surely Allah does not love anyone who is unfaithful182

These verses illustrate Shari’a’s condemnation of all kinds of unfair commercial practices in a traditional market. However, one commentator observes that the same verses could be broadly read to provide support from Islamic Shari’a for the protection of IP rights.183 In linking the verses cited above and the Sunnah with IP, Al-ghamidi observes that violating an IP right would be:

Cheating that contradicts religion, morals and honesty which are condemned by many instructions and injunctions of Islamic Shari’a. God has said [in Qur’an] ‘O ye who believe! betray not Allah and His messenger, nor knowingly betray your trust’ ... [t]he messenger of God is reported to have said [in Sunnah] ’...he who cheats us, is not one of us’. ... Violating IP rights is prohibited by Shari’a because it is considered as cheating.184

Accordingly, any person who makes copies of a computer program and sells those copies as if they were authentic versions; a person who manufactures products using a patented invention without authorisation from the patent holder; or a trader who

178Amir 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 173. 179 The Qur’an (M. M. Pickthall trans) 4:107. 180 The Qur’an (Sahih International trans) 8:27. 181 The Qur’an (Sahih International trans) 33:58. 182 The Qur’an (Sahih International trans) 22:38. 183 Raslan, above Ch 1 n 12, 524 and Khory, above Ch 1 n 12, 174. 184 Nasser M al-Ghamidi, Protection of Intellectual Property in Islamic Jurisprudence and its Economic Implications Available on http://hawassdroit.ibda3.org/t712-page

uses a trademark of other person to market counterfeited goods is committing an act that contradicts the general prohibition of deceitful practices in Islam. As a result, laws and regulations that prevent unfair ‘free riding’ on others’ efforts and compensate any resultant damages are compatible with the main sources of Shari’a .

3.5.1.5 Islamic Law of Contract and IP

Islam calls upon Muslims to honour their contracts and considers respecting contractual obligations as an act of worship. In this context, the Qur’an says ‘O you who have believed, fulfill [all] contracts’.185 To the same effect, the Prophet in the Sunnah says ‘Muslims are bound by their stipulations’.186 This shows that within the rules of Islamic Shari’a, contracts are not only legally binding but also sacred.187 The principle applies equally to the contracts concluded by individuals or international conventions signed by the Islamic states.

This might have a bearing on the protection of IP in Islamic states. The contemporary IP system has been adopted in almost all the countries of the world through international conventions such as the TRIPs, and the Berne and Paris Conventions. Accordingly, if a Muslim state enters into an international IP convention, the contract rules within Islamic Shari’a will require authorities in that state to enact and implement IP laws provided that the rules contained in the international conventions are not in a direct conflict with an established rule in the Qur’an or the Sunnah.

Nevertheless, this does not mean that the current international IP system is fair and compatible with the principles of Islamic Shari’a. Rather, Islamic countries should adhere to their obligations as the Qur’an commands and aim to neutralise any aspects of the current system which contradict the sources and principles of Islamic Shari’a. At a later stage, this thesis makes useful recommendations as to how this may be achieved.

185 The Qur’an (Sahih International trans) 5:01. 186 Abu Da'ud, No: 3120. 187 Jamar, above n 99, 1086.

3.5.1.6 Support of IP in the Non-Textual Sources

This section argues that, in addition to the various principles outlined above, some of the non-textual sources of Shari’a can provide additional support for the recognition of IP.

The non-textual sources of Islamic Shari’a possess significant importance as they represent the golden tool by which the Shari’a can be related to modern times. Isthisab (presumption of continuity) and maslaha mursala (consideration of public interest) can be used in adapting IP law to Islamic Shari’a.

3.5.1.6.1 Istishab and IP

Commentators who have studied the Islamic stance on IP al-Dirini 1977,188 Abd Al- samee 1988, 189 Jamar 1992, 190 Azmi 1996, 191 Khory 2003, 192 Ralan 2007 193 and Price 2009 194 agree that IP is not regulated according to the sources of Islamic Shari’a nor in the classical literature of Muslim jurists as is the case with contracts for example.

Istishab could therefore be relevant. Istishab promotes the rule that, within Islamic Shari’a, permissibility is the default status for legal affairs (al-asl fi al-ashya al ibaha)195 that is, when an issue emerges for which there is no injunction in the Qur’an, the Sunnah or the other sources according to the hierarchy illustrated above, the subject in question should be considered mubah (permissible). Since IP is not regulated in the sources of Islamic Shari’a, the concept of Istishab could provide additional support to the recognition of IP in Islamic Shari’a.

3.5.1.6.2 Maslaha Mursala and IP

Among the different non-textual sources (Ijma’a, istislah or maslaha mursala and qiyas), we observe that commentators on IP and Islamic Shari’a focus mainly on

188 Al-Dirini, above n 2,7. 189 Abd Al-samea, above Ch 1 n 42,1. 190 Jamar, above n 99, 1080. 191 Azmi, above Ch n 13, 53. 192 Khory, above Ch 1 n 12, 158. 193 Raslan, above Ch 1 n 12, 497. 194 Price, above n 9, 26. 195 Al-Suyuti al-Ashbah wa al-Nazayer, above Ch 2 n 82, 65.

maslaha mursala (consideration of the public interest). This is because the latter is a considered the key non-textual source in the process of seeking solutions for modern social and legal challenges. IP is no exception. In this regard, one commentator has observed that:

It is clear that protecting and enforcing IP rights is a novel situation for which no specific rules in Shari’a are to be found. Thus, the doctrine of public interest [maslaha mursala] has significant bearing on intellectual property. To determine whether the existing mechanism for protecting and enforcing IP right is compatible with the principles of Shari’a, an objective weighing of the benefits of the mechanism against its expected harmful effects must be applied.196

After such an evaluation is carried out, if the benefits acquired from regulating IP are found to outweigh its expected harmful effects, then IP should be accepted under Islamic Shari’a on the basis of maslaha mursala and vice versa.

Another commentator who evaluated IP according to the maslaha mursala doctrine noted that the modern economy is based on information. Its strength is measured according to the strength of the innovation cycle, which is driven by ideas and intellectual creations. A very important example can be found in the pharmaceutical industry, where many years and large amounts of money are invested to develop an idea into a patentable invention. Only a few ideas end up as successful patents. If we do not provide acceptance for IP protection under Islamic Shari’a, a clear public interest will be undermined due to the collapse of overall investment and the deterrence of future inventors. Additionally, exceptions and limitations to intellectual property such as fair use, royalty free exceptions and compulsory licensing guarantee the precedence of the public interest by restricting the exclusive rights of the IP owners in certain circumstances, such as educational purposes, personal use, public health and national security.197 Another commentator has argued that every person who applies his intellect to produce or improve something provides an enormous service to the community and in turn, accomplishes one of Shari’a’s purposes in preserving wealth for humankind.198

196 Raslan, above Ch 1 n 12, 526. 197 Beltramitti, above n 37, 80-81. 198 Husain H. Shalgami, Wasa’il himayat al-mulkiyya al-fikriyya fi al-fiqh al-islami wa al-qanūn al- wadʿi (PhD Thesis, al-Azhar University, 2004).

Widely renowned Muslim scholar Professor Wahba al-Zuhili issued a fatwa in 1977 in favour of ‘Islamic protection’ for copyright. That fatwa was explicitly based on the notion of maslaha mursala. Professor al-Zuhili stated that:

Copyright, which enters under a new legal concept, the intellectual right, is protected under Islamic Shari’a [and] the basis for such protection would be Istislah or maslaha mursala. This is because any work that brings prevailed interest or obviates damage and evil is legitimate under Islamic Shari’a.199

Also based on maslaha mursala, but on a broader scale, the International Islamic Fiqh Academy (one of the most highly regarded Islamic institutions in modern times) issued a fatwa in 1988 regarding incorporeal rights in general:

First: Business name, corporate name, trade mark, literary production, invention or discovery, are rights belonging to their holders and have, in contemporary times, financial value which can be traded. These rights are recognized by Shari’a and should not be infringed.

Second: It is permitted to sell a business name, corporate name, trademark for a price in the absence of any fraud, swindling or forgery since it has become a financial right.

Third: Copyrights and patent rights are protected by Shari’a. Their holders are entitled to freely dispose of them. These rights should not be violated.200

In 2000, the al-Azhar Fatwa committee also issued a legal opinion to the same effect.201

Nevertheless, the extent to which maslaha mursala can be used to regulate IP has yet to be determined. This is because Muslim scholars have stipulated certain criteria that must be met to invoke the doctrine of maslaha mursala.202 These criteria are based on the parts of Islamic philosophy that strongly emphasise the supremacy of the public interest.203 Applying the doctrine of maslaha mursala to IP is problematic. Some might argue that the prevailing public interest from a Shari’a perspective lies

199 Wahba al-Zuhili, Haq al-Ta’alīf wa al-Nashr wa al-Tawziʿ (al-Risalah Foundation, 1977) 188. 200 International Islamic Fiqh Academy, Resolution No 43 (5/5) 1988 Regarding Incorporeal Rights, available online at: . 201 Al-Azhar Fatwa Committee in a number of opinions issued on April 20, 2000 and August 16 2001 cited in Raslan above Ch 1 n 12, 503. 202 Muhammed Sa’īd al-Būti, dawābit al-maslaha fi al-shari’a al-islamiyya (PhD Thesis, Faculty of Shari’a al-Azzhar University,1965) 248 et seq. 203 Yūsuf Kamal, al-Islam wa al-Madhāhib al-Iqtisādiyya al-Mu’āsira (Dār al-Wafa Publications, 1990) 149.

in the unrestricted use of intellectual creations. In this sense, maslaha mursala is seen as double-edged sword that can be used to undermine IP protection. In this context, Professor Steven Jamar has, rightly, expressed concern that:

If the public interest is drawn too broadly and too powerfully, it can be abused to remove protections for IP on the grounds that the whole society has need of, or could benefit by, unrestricted use of the item.204

In the context of copyright, another commentator suggests that an Islamic approach to copyright might be not to restrict the duplication of original materials, based on the premise that ‘the most widespread dissemination of knowledge is for the good of all’205

Some commentators have responded to these concerns from the assumption that without IP protection individuals will lack the incentive to create, and that established exceptions and limitations will serve the public interest well. They further warn that without strong IP protection the economy will collapse.206

However, this assumption may not always be correct. Many other commentators on IP and development (economists/social scientists), have argued that the integration of the current international IP system into the laws of developing countries will not serve the public interest in those countries.207 Taking into consideration the fact that, at this stage, all Muslim countries are developing countries, 208 a claim that ‘intellectual property laws have the society’s interest at heart’209 and accordingly should be accepted under the maslaha mursala in Shari’a might be incorrect.

David Price, in a study of IP in the Arab Gulf States from a Shari’a perspective concludes that:

204 Steven D Jamar, The Protection of Intellectual Property Under Islamic Law (1992) 21 Cap. U. L. Rev 1090.

206 Raslan, above Ch 1 n 12, 527. 207 Cullen, above n 3, 57. 208 United Nations, Least Developed Countries Report (2010) 5 available online at: American Mathematical Society: (25/9/2011) 209 Raslan, above Ch 1 n 42, 527.

Very high standards of protection may be in the public interests in developed countries with highly sophisticated scientific and technological infrastructure, but this does not mean the same standards are appropriate in all developing countries210

It is difficult, then, to argue that all the aspects of IP found in the relevant international treaties could fit within the required conditions of maslaha mursala211 as illustrated above.212 If the primary goal of maslaha mursala is to ensure ‘the good of all’, many commentators have argued that the current IP systems do not guarantee the interests of developing countries.

Various examples can be cited to illustrate that there are many aspects of the current international IP system that contradict the interests of developing countries. 213 Investigating them in detail is an important part of Chapter 4 of this thesis.

3.5 Similarities between Islamic and Western Theories on Ownership of Ideas and Expressions.

This section introduces a broader perspective on the legitimacy of the ownership of ideas and expressions from an Islamic perspective. It demonstrates that there are profound similarities between Islamic and Western philosophies on private property. Recent international scholarship on theories of IP, based on Western philosophy on private property, can be extended to justify Islamic Sharia’s recognition of the ownership of property rights on intellectual products.

210Price, above n 9, 7. In the same context Joseph Stigliz in an article published in the Daily Times confirms that ‘Intellectual property is important, but the appropriate intellectual-property regime for a developing country is different from that for an advanced industrial country’, Joseph Stigliz, ‘Intellectual-property rights and wrongs’ Daily Times (Pakistan) 16 August 2005, . 211 Raslan is of the opinion that the current intellectual property system fits with the conditions of maslaha mursala in Islamic Shari’a, Raslan, above Ch1 n 12, 528. 212 See Chapter 2 page 32. 213 Tzen Wong and Graham Dutfield highlight various aspects of the current international system of IP which do not serve the interest of developing countries. They question numerous provisions within the international copyright and patent systems and criticise the ignorance of traditional knowledge. One interesting example of this is their criticism of the Berne Convention, they contend that ‘the treaty structure does not seem to have trickled down into greater access by developing countries to textbooks and other knowledge inputs to education’. Elsewhere, they observe that the convention needs to be reconsidered in terms of the translation rights, the copyright duration and the use of works for broadcasting and educational purposes as the current provisions within the treaty do not seem to serve the interests of developing countries. Tzen Wong and Graham Dutfield, Intellectual Property and Human development: Current Trends and Future Scenarios (Cambridge University press, 2011) 229-230.

3.5.1 Justification of Property in the West

Generally, the private property rights are justified in the West by reference to the writings of theorists such as John Locke (d. 1704 CE), Immanuel Kant (d. 1804 CE) and Georg Hegel (d. 1831 CE).

In Chapter 5 of his Two Treatises of Government214 Locke justifies the right to private property. In sections 25, 26 and 34 Locke maintains that ‘God gave the world to men in common’, (emphasis added) 215 and that the resources of nature are available for all people.216 In Locke’s theory on property, each individual owns ‘the labour of his body and the work of his hands ... Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.’217 Thus, ‘no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others.’218 From this assumption comes the exclusionary nature of the contemporary Western right of private property.

According to Locke, the concept of labour is fundamental in justifying the right to private ownership of resources that are held in common. The most prominent example in Locke’s Treatises is the private ownership of land (sections 32, 37 and 43). An individual who tills, plants, improves and cultivates a piece of land,219 has ‘added something to [it] more than nature … and so [it] became his private right’.220 ‘Thus, labour ... [gives] a right of property, whenever anyone was pleased to employ it upon what was common’.221

Hegel, on the other hand, argues that ‘man has by nature the impulse to right [and] the impulse to property’ (emphasis added).222 On that basis Hegel proposes his so- called personality theory. According to personality theory, property can be justified as an expression of the self. What creates ownership is the will of an individual. This takes place, for instance, when that will interacts with the external world at various

214 John Locke, The Second Treatise of Civil Government (1690) available online at: . 215 Sec 34. 216 Sec 27. 217 Sec 27. 218 Ibid, the language of sec 44 carries meaning to the same effect. 219 Sec 32. 220 Sec 28. 221 Sec 45. 222 G.W.F. Hegel, Philosophy of Right, translated by S.W Dyde Batoche (Books Kitchener, 2001) 41.

levels of activity. According to Hegel’s philosophy, intellectual processes such as realisation, remembering, contemplation, classification and constructive imagination ‘can be viewed as appropriations of the external world by the mind’,223 and since the will of an individual represents his or personality, the right to private ownership over what has been appropriated by the will should be considered as a fundamental prerequisite for satisfying natural human urges.224

3.5.2 Justification of Property in Islamic Shari’a

The theories of both Locke and Hegel have strong parallels in the theoretical framework of private property in Islamic Shari’a. For instance, the theological premise of Locke (sec 34) is emphasised throughout the Qur’an:

‘It is He (Allah) who created for you (humankind) all of that which is on the earth.’225

‘And it is He who has made you successors upon the earth and has raised some of you above others in degrees’226

‘And He has subjected to you whatever is in the heavens and whatever is on the earth - all from Him. Indeed in that are signs for a people who give thought.’227

The Qur’an describes this premise in the following terms God gave the world to human beings in common as Istikhlaf or Khilafah (stewardship). This concept is considered at greater length below. (Emphasis added).228

Muslim scholars define the resources held in common as mubah.229 From an Islamic perspective, the mubah includes vacant land (al-ard al-jarda), marine life (al-hayate

223 Justin Hughes, ‘The Philosophy of Intellectual Property’ (1988) Geo. L.J, 30. 224 William Fisher, ‘Theories of Intellectual Property’ in New Essays in the Legal and Political Theory of Property (Cambridge University Press, 2001), 5, online version available at: . 225 The Quran (Sahih International trans) 2:29. 226 The Quran (Sahih International trans) 6:165. 227 The Quran (Sahih International trans) 45:13. 228 In several verses of the Quran, the term isthikhlaf is found to mean that Allah gave the world to human beings so they couldappropriate the resources that are found in it and develop it (imarat al- ardh) See for instance, the Quran (Sahih International trans)11:61. For more elaboration, see Abdallah. A. Al-bar, ‘Mafhom al-Isthikhlaf wa Imrarat al-Ardh fi al-Islam’ (2003) Salah Kamel ‘s Journal of Islamic Economics, al-Azhar University, 82. 229 See for instance Muhammad Abu Zahra, al-Mulkeyyah wa Nazareyat al-ʿaqd fi al-Shari'a al- Islamiyya (Dār al-Fikr al-Arabi, 1977) 55.

al-bahriyya), animals (hayawanat), vegetables (nabatat) and mines (ma’ādin). 230 Generally, the appropriation from mubah grants title (mulkiyyah) to the appropriator.231 This takes place through labour that leads to possession of some of the resources that are held in common (ihraz al-mubah).232

As is the case in Locke’s Treatises, the example of land is widely used in the jurisprudence of Islamic Shari’a to justify granting title over resources held in common. As we have seen in above, this is known as ihya’ al-mawat (reviving the death),233 and relies on a hadīth of the Prophet (PBUH) that implies whoever labours on an unclaimed piece of vacant land will have the right to own that land.234

Ali al-Khafif and Muhammad Abu Zahra have studied the meaning of ‘ihya’ al- mawat’ according to the opinions of Hanafi (d. 767 CE), Maliki (d. 796 CE), Shafiʿi (d. 820 CE) and Hanbali (d. 855 CE) schools.235 What appears from their work is that the term (ihya’) resembles the concept of labour in Locke’s Treaties. Ali al- Khafif contends that ownership of vacant land cannot be recognised without productive labour that adds something to the land which makes it more beneficial than its original or natural condition.236 Abu Zahra gives examples of the kind of labour that qualifies for the ownership of the vacant land, which could be understood to include the examples that were given by Locke in sec 32: tilling, improving and cultivating.237

According to the abovementioned concept of ‘ihraz al-mubah’ and the concept of ‘ihya’ al-mawat’ from the early stages of the Islamic civilization, Muslim scholars developed ‘labour theory’ to justify ownership of God-given resources. For instance, Abu-Bakr ibn Abi al-Dunya, (d. 894 CE) in his book Islah al-Mal (maintenance of

230 Mustafa al-Zarqa, al-Madkhal al-Fiqhi al-A’am (Dār al-Qalam, Damascus, 1998) 336 and Muhammed M. Shalabi, al-Fiqh al-Islami: Tarīkhuhu wa Madārisahu wa Nazareyatahu: al- Mulkiyyah wa al-ʿaqd (Al-Dār al-Jami’iyya, Beirut, 1985) 381. 231 Muhammed R. Said, al-Mal, Mulkkiyyatuh, Istithmaruh wa Infāquh (Dār al-Wafa Publications, 2002) 60. 232Shalabi, above n 230, 38.1 233 See p 78. 234 This Hadith was narrated in different forms by Imam al-Termidi. It is also reported in Sahih al- Bukhari from Aisha, the wife of the Prophet. Atef A. S. Ali, Ihya’ al-Aradhi al-Mawat fi al-Islam (the League of the Islamic World, 1996) 58; see also, Mansur al-Bahūti, Kashaf al-Qinaʿ ʿan matn al- Iqnaʿ (ʿālam al-Kutub, 1997) 398. 235 Ali al-Khafif, al-Mulkiyyah fi al-Shari’a al-Islamiyya (Dār al-Fikr al-Arabi, 1996) 249 Muhammad Abu Zahra, above n 229, 125-126. 236 Ali al-Khafif, above n 235, 249. 237 Muhammad Abu Zahra, above n 229, 125.

wealth) traced the texts of Islamic Shari’a and found that productive labour justifies private property. 238 What is more, the great Muslim jurist, philosopher and sociologist Abdul Rahman Ibn Khaldun (known as Ibn Khaldun) who died in 1406 CE (298 years before John Locke) in his highly acclaimed book al-Muqaddimah (the Prolegomena) developed an advanced Islamic theory of labour resembling that of Locke.

In the fifth chapter of the first volume of al-Muqaddimah, Ibn Khaldun refers to several verses from the Qur’an that illustrate that Allah has given the world with all its natural resources for the benefit of humankind.239 He maintains that ‘hands of humans’ have equal opportunities to appropriate those resources, and once an individual exerts his or her labour on a certain object, it becomes his/her own property and thus ‘cannot be taken without remuneration’. 240 This could be understood as recognition of exclusive right from an Islamic perspective. He further argues that ‘human labour is a prerequisite for wealth accumulation’, and that ‘profits and gains, in their entirety or in the majority of cases, are value realised from human labour’.241 Therefore, Ibn Khaldun argued in favour of what can be termed as ‘the utilitarian approach’ towards the necessity of labour, where he notes that ‘welfare and prosperity of a society is dependent on the magnitude of labour in that society’242 which means that those societies which respect the fruits of human labour and reward it, shall flourish, and those who do not respect human labour will suffer adverse consequences.243

Moreover, as is the case in Hegel’s personality theory, in which Hegel affirms that having private property is innate, Muslim scholars submit that the texts of the Qur’an and Sunnah pertaining to property illustrate that having private property is a natural disposition of human beings.244 For instance the Qur’an says:

238 Abu-Bakr Ibn Abi al-Dunya, Islah al-Mal, this book was authenticated in a study prepared by Mustafa. M. Alghatat (Al-wafa Publications, 1990) 84. 239 Ibn Khaldun, al-Muqaddimah, (Bayt al-Ulūm wa al-Funūn wa al-Adab, 2005) Vol 2, 259. 240 Ibid, 259. 241 Ibid, 260-261. 242 Ibid, 262. 243 Ibid. 244 See for instance, Abdu Allah. M. Yūnus, Athar al-Tanzīm al-Islami li al-Mulkiyyah (Dār al- Shima’) 31 and Abdu Allah al-Muslih, al-Mulkiyyah al-Khāsa fi al-Shari’a al-Islamiyyah (The International Association of Islamic Banks, 1982) 35-36.

‘And you (humans) love wealth with immense love.’245

‘And indeed he (human being) is, in love of wealth, intense.246

As for the Sunnah of the Prophet Muhammed (PBUH), he is reported to have said: ‘If the son of Adam were to possess two valleys of riches, he would long for the third one’247

The recognition in the main sources of Islamic Sharia that the desire for ownership is a natural disposition of human beings necessitates the prohibition of all actions which may lead to disrupting that natural disposition. In other words, the recognition provided in the Islamic sources for ownership as being a human natural need, must have a normative implication, that is, providing some sort of protection for ownership acquired through legitimate means, especially labour. Accordingly, Mustafa al-Zarqa concludes that mulkiyyah, under Islamic Shari’a, is a private right that permits owners to exclude others from using the subject matter,248 and that it encompasses tangible and intangible assets.249

Once property rights are recognised according to Islamic Shari’a, the state is obliged to protect them and allow the owner to practise their rights. In this regard, the renowned Hanafi scholar, Abu Yūsuf (d. 798 CE), wrote to Harun al-Rashīd (d. 809 CE) the head of Islamic State (Caliphate):

Neither according to the religion nor according to thelaw can the sovereign [Imam] concede to anyone what belongs to another Muslim or to a person under the protection of the Muslims. Nor can he deprive them of anything they possess, except when he has a legal claim against them. In this case, he may exact from them that to which he has a right. 250

In summary, the general framework of mulkiyyah, as prescribed in the sources of Islamic Shari’a, and the writings of Islamic scholars is consistent with the general framework of property as developed in Western philosophical thought.

245 The Quran (Sahih International trans) 89:20. 246 The Quran (Sahih International trans) 100:08. 247 Translation of Sahih Muslim, Hadith no 2281, available online at: . 248 Mustafa al-Zarqa, al-Madkhal al-Fiqhi al-’ām, above n 230, 333. 249 Ibid, 334. 250 Yaqūb ibn Ibrahim, Kitab al-Kharaj, (1884), 34, cited in Saba Habachy, ‘Property, Right and Contract in Muslim Law’ (1962) Colum. L. Rev, 455.

3.5.3 ‘Common Terms’

Justifying private ownership of ideas on the basis of Locke or Hegel’s writings encompasses, to a large extent, the same principles used to justify such ownership on the basis of the theoretical framework of private property in Islamic Shari’a.

Justin Hughes (1988), William Fisher (2001) and Robert Merges (2011) conducted intensive research to articulate theories of IP on the basis of the classical theories of real property as expounded in the works of Locke, Kant and Hegel.

Hughes argues that private ownership of ideas can be justified under Locke’s approach according to three propositions. First, the state of nature or the ‘common’ in Locke’s words can be imagined as the realm of ideas. Second, the production of useful ideas generally requires labour by the individual. Third, ideas can be made property and, yet, there will be ‘enough, and as good, left in common for others’ as Locke’s proviso of non-waste suggests.251

In the same context, Merges asserts that Locke’s theory ‘applies ... well ... to intellectual property’ 252 because ‘[the] stock of public domain information from which individual creators draw fits closely with Locke’s conception of a vast realm of common resources’,253 so ‘the claiming of intellectual property rights out of the public domain follows the same logic as the emergence of property rights from the state of nature’254 Merges further argues that the importance of labour in Locke’s theory has significant bearing on the world of IP:

[N]ontrivial creations presumably requiring significant effort are often said to be at the heart of IP law. Although labour is relevant in establishing some real property rights, it is a much

251 Hughes above n 223, 8. Elsewhere Hughes argues that intellectual property systems, however, do seem to accord with Locke's labor condition and the ‘enough and as good’ requirement. In fact, the ‘enough and as good’ condition seems to hold true only in intellectual property systems. Hughes above n 223, 27. 252 Robert P Merges, Justifying Intellectual Property (Harvard University Press) 2011, 32. Professor Merges defended the applicability of Locke’s theory of IP against crticisms from the leading philosophers, Robert Nozic and Jeremy Waldron. See Merges, 43-46. 253 Ibid, 33. 254 Ibid. Similarly Hughes argues that: ‘It requires some leap of faith to say that ideas come from a ‘common’ in the Lockean sense of the word. Yet it does not take an unrehabilitated Platonist to think that the ‘field of ideas’ bears a great similarity to a common. The differences between ideas and physical property have been repeated often. Physical property can be used at any one time by only one person or one coordinated group of people. Ideas can be used simultaneously by everyone. Furthermore, people cannot be excluded from ideas in the way that they can be excluded from physical property.’ Hughes, above n 223, 18.

larger, and much more prominent, part of the IP landscape. So Locke is more pertinent to IP255

Additionally, Fisher inferred from Locke’s theory the existence of a utilitarian approach in IP that riddles American Law; starting from US Constitution through to legislation, judgments and legal argument. 256 According to the utilitarian interpretation of Locke’s theory, intellectual labour should be rewarded by granting those who labour the exclusive right to exploit their respective creations, as through this channel, lawmakers will ensure the maximisation of social welfare. Contrariwise, failing to allocate such exclusive rights ‘will deter creators from making socially valuable intellectual products in the first instance’ and thereby creating an ‘economically inefficient outcome’. 257 We might make the same assumption if we rely on al-Muqaddimah of the Muslim scholar Ibn Khaldun who argues - as shown above - that without respecting the fruits of labour, societies might perish. Accordingly, ‘the Lockean explanation of intellectual property has immediate, intuitive appeal.’258

With regard to justifying IP according to Hegel’s theory,259Fisher and Merges imply that granting IP rights could be looked at as ‘crucial to the satisfaction of some fundamental human needs’260 or as fulfilling ‘human instinct’ which is bound with the existence of an individual’s will.261This holds true especially in the field of artistic creation, where an artist represents his or her will in a novel or painting.262 The reflection of personality theory is evident in the generous protection of moral rights in the European countries. Brian Fitzgerald refers to the influence of the

255 Merges, above n 254, 33. Fisher argues in the same direction, Fisher, ‘Theories of Intellectual Property’, above n 224, 4. 256 Ibid, 8, Fisher refers at the begging of his reseach to the utilitarian approach as a separate from Locke ‘s theory; however, Justin Hughes presents the utilitarian approach as a potential interpretation of Locke ‘s labour theory. See Hughes, above n 223, 6. It should be noted that Professor Fisher has wrote on the theories in 1988 see, William W. Fisher, ‘Reconstructing the Fair Use Doctrine’ Harvard Law Review (1988), 1755 et seq. 257 Fisher, above n 224, 2. 258 Hughes, above n 223, 8. 259 Although Professor Justin Hughes in his mentioned article did not refer to the influence of Kant on shaping the personality theory, Kant’s contribution is mainly recognised by Fisher and Merger, see respectively, Fisher, Theories of Intellectual Property, above n 224, 5 and Merges, Justifying Intellectual Property above n 252, 72. 260 Fisher Theories of Intellectual Property, above n 224, 5. 261 Merges, Justifying Intellectual Property above n 252, 72. 262 Hughes, above n 223, 28.

personality theory in shaping the recognition of moral rights in Article 6bis of the Berne Convention.263

At this stage, it is worth considering Justin Hughes’ summary of the strengths and weaknesses of Lockean and Hegelian theories and their relevance to the field of IP:

Both of the grand theories for IP - [labour] and personality - have their own strengths and weaknesses. The [labour] justification cannot account for the idea whose inception does not seem to have involved [labour]; the personality theory is inapplicable to valuable innovations that do not contain elements of what society might recognize as personal expression. At the same time, the two justifications seem to apply more readily to intellectual property than to the property they are usually called upon to legitimate. The Lockean [labour] theory applies more easily because the common of ideas seems inexhaustible. The Hegelian personality theory applies more easily because intellectual products, even the most technical, seem to result from the individual's mental processes ... the personality theory might justify rights to protect one's private property without justifying rights to alienate that property. I must add, as a possible corollary, that the [labour] justification, with its emphasis on value maximization, might legitimate alienation and value exchange without safeguarding rights to keep particular objects merely as ‘possessions.’ In this way, the two theories may compensate for each other's weaknesses.264

Finally, we saw above how the Islamic concept of mubah carries identical features to the concept of the commons, from which real property is appropriated. Likewise, the concept of mubah could be extended to the stock of public domain information, from which individual creators draw ideas for artistic and innovative products.265 These products could be perceived as private property according to Islamic Shari’a so long as they meet the general criteria of private ownership as discussed above, which requires productive effort (ʿamal) that adds value to resources held in common (mubah).

263 Brian Fitzgerald, ‘Theoretical underpinning of intellectual property : ‘I am a pragmatist but theory is my rhetoric’ (2003) The Canadian Journal of Law and Jurisprudence, 16 (2),182. The mentioned article is explicitly titled ‘moral rights’ and seems to recognise the author ‘s instinct in protecting her artistic works as an embodiment of her personality. 264 Hughes, above n 223, 51. 265 A similar opinion is held by Ida Madieha bt. Abdul Ghani Azmi, ‘The Philosophy of Intellectual Property Rights over Ideas in Cyberspace: A Comparative Analysis between the Western Jurisprudence and the Shari'ah’ (2004) Arab Law Quarterly, 202.

3.6 Evaluation of the Existing Literature on IP and Islamic Shari’a

The adoption of IP into Islamic Shari’a has been the subject of dispute. However, those who oppose IP protection have failed to provide convincing evidence to demonstrate a conceptual conflict between Islamic Shari’a and notions related to IP. Most of the objections discussed above are valid as grounds to introduce IP laws that are different from those implemented in the West, but they do not validate rejection of IP by Shari’a.

With regard to the proponents of IP, their arguments are stronger and reveal that the principles contained in the textual sources of Islamic Shari’a unequivocally support the recognition and protection of IP rights. For instance, the theoretical concept of mulk in Islamic Shari’a is broad enough to encompass intangible property. Islamic Shari’a recognises mental labour as a method of making a livelihood and it strictly condemns ‘free-riding’ or obtaining an advantage without paying for it or earning it. Above all, there are concepts of property in Islamic scholarship that are similar to the grounds used to justify ownership of ideas and expressions in Western scholarship. Therefore, insofar as the theory of IP is justified in Western scholarship it can also be justified according to the concepts of ownership in Islamic Shari’a.

Nevertheless, there has been confusion in providing recognition for IP according to the sources of Shari’a, particularly with regards to maslaha mursala. This confusion stems from a failure to differentiate between the theoretical concept of ownership over ideas, on the one hand, and the existing regulation of IP, on the other. It might be in the best interests of society to enact laws that protect and enforce IP rights. In this maslaha mursala can be used to provide additional support for Islamic Shari’a’s recognition of IP. Does this mean that Islamic Shari’a would accept the current regulation of IP as laid down in its international framework?

The demonstration of Islamic Shari’a’s acceptance of ownership over ideas is not the same as demonstrating its acceptance for the international framework of IP. As discussed in Chapter 2, safeguarding the interests of society is a fundamental aspect of law making in Islamic Shari’a. If maslaha mursala is to be applied to validate the adoption of a given institution, that institution must conform to the Islamic conception of public interests. Accordingly, it is imperative to investigate whether

the international framework of IP promotes the interests of society from an Islamic perspective. No existing studies have provided a comprehenisve analysis of the current regulation of IP from an Islamic perspective.

A comprehensive study of IP and Islamic Shari’a has to consider not only providing justifications for Shari’a’s recognition of ownership of ideas but also how Islamic Shari’a might interact with the current framework of IP. It must consider how the sources, principles and objectives of Islamic Shari’a view the effects of the existing framework of IP on the interests of society in areas such as education, public health and economic growth. Were the existing systems of IP set up to further the interest of societies, particularly less affluent societies? How does Islamic Shari’a perceive the way in which the current IP system regulates information and knowledge? All in all, is the current regulation of IP compatible with Islamic Shari’a?

Islamic Shari’a has its own framework for regulating property institutions. This framework consists of principles that might assist in reshaping the laws and policies of IP systems in a way that is more conducive to social welfare. It is inaccurate to argue that IP as developed in the West, particularly the dominant systems of IP, is ‘consistent with the concepts of mal [and] property...according to Islamic sources’.266 As discussed in Chapter 5 various principles based on Shari’a’s sources pull largely in different directions from various aspects of the IP systems as developed in the West.

The existing literature on IP and Islamic Shari’a has failed to provide an answer to the questions asked above. Therefore, the rest of this thesis will be dedicated to filling the gap and providing a framework for integrating IP into Islamic Shari’a, in order to construct an optimal IP system that promotes the interests of Islamic developing countries and, at the same time, proves faithful to the sources, principles and objectives of Islamic Shari’a.

3.7 Conclusion

Islamic Shari’a is based on a philosophy that its rules are not only applicable to the spiritual aspect of human life (devotions) but are broad and flexible enough to include the regulation of persons’ conduct within the society. For this reason it does

266 Ida Azmi et al, ‘Distinctive signs and early markets: Europe Africa and Islam’ in Alison Firth Perspectives on Intellectual Property (Sweet and Maxwell, 1997) 150.

not stand neutral regarding emerging scientific and legal issues such as IP. This Chapter sought to demonstrate the place of IP in Islamic Shari’a.

Historically, although there had been no indigenous counterpart of the current system of IP, there are indications that Islamic civilisation appreciated mental labour and that the Islamic states throughout different historical eras encouraged and rewarded intellectual creativity.

Currently, IP in the Muslim world is not in complete conformity with dominant international IP regulation and standards. Therefore, reforms that take into consideration the social and cultural reality of the Muslim world are required.

Objections raised by some commentators and scholars lack a deep understanding of the diverse field of IP. However, one of the objections raised may affect the protection of certain intellectual subject matter which is not sanctioned according to Shari’a. This may include subject matter related to copyright (eg pornography), patent (eg some inventions related to biotechnology) and trademarks.

There is no text in the primary sources of Islamic Shari’a that prohibits Muslims from acquiring property through mental labour or that rejects the conceptual notion of intellectual property. In fact, various principles derived from the Qur’an and the Sunnah provide support for the recognition and protection of IP. These include the concept of mulk, labour and Shari’a’s principles on encouraging productivity and discouraging ‘free-riding’.

The non-textual sources also provide additional support for the theoretical notions of IP; however, they may not justify the current regulation of IP as prescribed in international conventions.

To reach productive results regarding IP in Islamic Shari’a, we need to consider the following:

 The scope of the research should not be focused only on whether Islamic Shari’a accepts IP. Rather, a more holistic approach is required to define the relationship between Islamic Shari’a and the current system of IP in terms of acceptance of and implications for the system.

 In defining the scope of IP protection according to Islamic Shari’a, IP should be comprehensively addressed according to its sources, objectives and principles of. These should be employed to evaluate the current application of IP and to identify the elements required in an IP system that is compatible with Islamic Shari’a. This task will be carried out in the following chapters.

Chapter Four

Rethinking the Relationship between Intellectual Property and Islamic Shari’a

4.1 Introduction

There is clear support for Islamic Shari’a’s recognition of the legitimacy of ownership of ideas and expressions. However, it is not enough to argue that Islamic Shari’a accepts the theoretical concept of IP, it is also important to determine its stance on the practical applications of IP as embodied in the current and dominant IP systems.1

This chapter digs deeper than the existing literature on Islamic Shari’a and IP. It adopts a holistic approach in examining the current IP system from the perspective of the sources and objectives of Shari’a. This requires an understanding of the current IP system’s history, an examination of its underlying assumptions and a definition of its relationship to the progress of societies.

In this chapter, the currently predominant IP systems are evaluated on the basis of one of the most important non-textual sources of Islamic Shari’a, namely maslaha mursala, as well as the legislative objectives of Islamic Shari’a. If the IP system currently predominating on the international level is found to be compatible with Islamic Shari’a, it is then necessary to consider whether it can be justified according to the public interest considerations of maslaha mursala and whether the current IP system meets Islamic Shari’a’s objectives in preserving life, intellect and wealth.

The benchmark for law and policymaking from an Islamic perspective is securing the public interest by promoting welfare and/or preventing harm from being inflicted upon society. This encompasses utilitarian concepts but go far beyond them. Maximising economic welfare is part of the Islamic concept of the public interest, but there are other considerations as well. Islamic Shari’a directs policymakers to design laws and policies that preserve religion (Dīn), human life (nafs), human intellect (ʿaql), lineage (nasab) and human wealth (mal). This chapter draws upon

1 The scope of the currently dominant IP system is defined in p 11.

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the modern definitions and international measures of development to investigate whether the currently dominant IP systems satisfy the requirements of the Islamic perspective on the public interest.

Development could be used as a synonym for public interest. Accordingly, studying the relationship between IP and development provides us with an understanding of the potential of IP laws in promoting the public interest as required by Islamic Shari’a. This will take place by studying the interaction between IP and the main driving factors of development, namely, health, education and economic growth.

This chapter begins with introductory remarks about the concept of development. A link is drawn between development and the public interest, on one hand, and development and maslaha mursala, on the other, to illustrate that development could better represent a measurement for the implementation of maslaha mursala, the most important instrument used to adapt IP to Islamic Shari’a. The importance of maslaha mursala in the formation of Muslim society in modern times is also considered.

Having established the link between the Islamic perspective on the public interest and development, this chapter embarks on an objective weighting of the currently dominant IP systems to determine whether they promote the public interest. This part traces the history of the IP system to find out whether it was built to advance the public interest of the less affluent nations. Finally, this part identifies measures of development (public health, education and economic growth) and determines the impact of the currently dominant IP systems on these measures.

4. 2. The Scope of Public Interest: Public Interest as Development2

Maslaha mursala is a source of Islamic Shari’a designed to operate as a normative framework to ensure that law and policymaking promote the public interest. Currently dominant IP systems would be acceptable only if they promote the public interest.

2 The issue of development in its various aspects is considered one of the most important challenges to face the international community. This explains why its importance is recognised in several conventions and forums such as the United Nations Declaration on the right to Development (1986), UN Millennium Development Goals (2000); the Sao Paulo Consensus (2004) Plan of Implementation of World Summit on Sustainable Development (WSSD) and the Doha Declaration in 2005 and so on. Rami Olwan, Intellectual Property and Development: Theory and Practice (PhD Thesis, Queensland University of Technology, 2011) 3.

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By and large, the public interest involves positive change and progress. Modern notions of development offer definitions and measures to identify and determine positive change and progress. Therefore, development can be used as an indicator of the public interest, as discussed in the following sections. Consequently, development shall be used as a yardstick to define the public interest required to implement maslaha mursala as a source of Islamic Shari’a.

4.2.1 A Secular Perspective on Development

At the outset, there is no intention of shifting the reader‘s attention to the complexities associated with the term ‘development’ as a contested term in the social sciences.3 Rather, the term will be used to the extent needed to assist in realising the purpose of this chapter, which is to understand what impact Islamic Shari’a might have on the currently dominant IP system.

In the field of social sciences, ‘development’ is a complex and multifaceted notion.4 A standard dictionary definition indicates a process of positive change, growth, advancement, evolution or improvement.5 Generally, in the field of economics, the concept of development ‘incorporates the diverse and broad aspirations of what might be called good life in all its economic, social and political dimensions’,6 which includes improvement in education, health, skills, income and employment to the extent that people in a given society have the ability7 to choose a healthy life, better education and decent standards of living.8 James Cypher and James Dietz understand development as being about:

a) Equality of opportunity;

b) Increasing income and standards of living;

3 Anthony Payne and Nicola Phillips, Development (Polity Press, 2010) 1. 4 James Cypher, and James Dietz, The Process of Economic Development (Routledge, 2009) 30. 5 Oxford Dictionary ; Dictionary, . 6 James Cypher, and James Dietz, above n 4 31. 7 This might be considered as part of the ‘Capability Approach’ developed by Amartya Sen and Martha Nussbaum which views the essence of development not as an economic process of raising individuals’ income per capita, but more broadly as a set of capabilities that include: being able to live to the end of a human life of normal length; being able to have good health including reproductive health; being able to move freely from place to place; being able to use one’s senses including thinking, imaging and reason ‘in truly human way’ and being able to participate in political choices. Martha Nussbaum ‘Capabilities and Human Rights’ (1997-1998) C 66 Fordham L. Rev., 273. 8 Rohan Kariyawasam, International Economic Law and the Digital Divide: A New Silk Road? (Book News Inc, 2007) 266.

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c) Equity in the distribution of income and wealth; political democracy and widespread participation in society’s decision making;

d) Increased opportunities for education and self-improvement;

e) The expanded availability of, an improvement in, health care.9

Development has three main aspects that are interconnected: human development, economic development and social development.

The Human Development Report defines human development as a ‘process of enlarging people's choices... to lead a long and healthy life, to acquire knowledge and to have access to resources needed for a decent standards of living’.10 According to the Report ‘additional choices [for achieving human development include] ... political, economic and social freedom to opportunities, being creative and productive, enjoying personal [self-respect] and guaranteed human rights’ 11

Irma Adelman12 defines economic development as ‘a process by which an economy is transformed from one whose rate of growth in per capita income is small or negative to one in which a significant self-sustained rate of increase of per capita income is a permanent long-term feature’.13

The process of economic development is understood today to encompass positive reforms in economic growth, patterns of production, technological capacities, modernising of social and political institutions and widespread improvements in human conditions.14

9 James Cypher, and James Dietz, above n 4, 31. The view of the authors on development draws upon what is known as Millennium Development Goals adapted by 189 United Nations members in 2000 as goals to be achieved by 2015. For more information please see: United Nations, Millennium Development Goals (2000) http://www.un.org/millenniumgoals/ 10United Nations Development Program, Human Development Report 1990, 10 available online at . 11 Ibid. 12 University of California, Berkeley. 13Irma Adelman, Theories of Economic Growth and Development (Stanford University Press, 1961) 1. Notwithstanding the fact that economic growth is used in the abovementioned definition to measure economic development, many economists maintain that economic growth should not be confused with economic development because ‘the two are not identical. Growth may be necessary but not sufficient for development. Economic growth refers to increase in a country’s production or income per capita ... [economic] development refers to economic growth accompanied by changes in output distribution and economic structure’ Wayne Nafziger, Economic Development, (Cambridge University Press 2005) 15. Also see Richard Grabowski et al, Economic Development: A Regional, Institutional, and Historical Approach (M.E. Sharpe, Inc 2006), 6. 14 Ibid.

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The concept of social development, first attracted unprecedented interest after the World Summit for Social Development held in Copenhagen in 1995 as a result of the principles declared by the Summit.15 It was emphasised at that time that social development ‘should serve to build up egalitarian and solidaristic communities and create societies in which human beings can live together in peace and in which their basic rights are respected’.16 Various definitions are given to social development, which reveal its strong and interconnected relation to the other aspects of development. James Midgely17 defines social development as a ‘process of planned social change designed to promote the well-being of the population as a whole, in conjunction with a dynamic process of economic development.’ 18 Another commentator observes that ‘social development is inclusive of economic development but differs from it in the sense that it emphasises the development of the totality of the society in its economic, political, social and cultural aspects’19

Leading philosophers Amartya Sen and Martha Nussbaum introduced a holistic approach to defining and measuring development known as the Capabilities Approach.20 They argue that a comprehensive conception of development includes economic growth but must go well beyond that. Nussbaum states that: development must be defined in light of ‘what is each person able to do and be?’.21

15 The United Nation Report on the World Summit for Social Development introduced the main objectives of social development as to include eradicating poverty, enhancing productive employment and reducing unemployment, and fostering social integration. Report on the World Summit for Social Development (April, 1995), available online at: http://www.un.org/documents/ga/conf166/aconf166- 9.htm 16 Hans Günther Homfeldt and Christian Reutlinger, ‘Social Development’ (2008) Social Work and Society Online Journal, Vol 6, No 2, available online at: . 17 University of California, Berkeley. 18 James Midgley, Social Development: The Developmental Perspective in Social Welfare (Sage Publication Ltd, 1995), 25. On the relation between social and economic development the author states that ‘social development and economic development form two sides of the same coin. Social development cannot take place without economic development, and economic development is meaningless unless it is accompanied by improvement in the social welfare for the population as a whole.’ 19 Manohar Pawar and David Cox, Social Development: Critical Themes and Perspectives (Routledge, 2010), 15 citing Gore (1973). The author also cites on page16 other definitions for social development that embark from a different perspective, viewing social development as a structural change or as a process that aims to realise the human potential, needs and quality of life. It is noteworthy that the latter perspective resembles the mentioned definition of human development as a process of enlarging human choices in terms of rights and quality of life. 20 Martha Nussbaum ‘Capabilities and Human Rights’, above n 7, 273; Amartya Sen, Development as Freedom (Anchor Books, 2000). 21 Martha Nussbaum, Creating Capabilities: The Human Development Approach (Harvard University Press, 2011) 18.

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Both Sen and Nussbaum argue that to achieve an efficient and balanced development process, law and policy must secure for all citizens central capabilities that include: access to adequate health care and the capability to use the senses, imagination, and thought in a way informed and cultivated by an adequate education.22

Development revolves around positive progress in the overall well-being of a given society. This can be measured according to several factors; most importantly, the ability to live healthily, the ability to learn and the ability to have access to a decent source of income. These abilities are in complete conformity with the main objectives of law making in Islamic Shari’a.

4.2.2 The Islamic Perspective on Development

Islam emerged in the seventh century CE in a desert and spread among the Bedouin tribes in the Arabian Peninsula. Yet, after two decades, that underdeveloped society developed into a strong international state with territories in three contents, and an advanced economic and cultural life which continued to exist for eight centuries.23 There must have been an applied concept for development that led the change in that society.24

The Muslim jurist Muhammad al-Ghazali, one of the most renowned Islamic scholars of the 20th century, highlighted the importance of development (ʿimara) as a priority for the Islamic society. al-Ghazali equates the necessity of development with the importance of devotions (ʿibadat) in Islam. He observes that it is pointless to preach to a community with the moral commandments of the religion without establishing the foundations of collective economic reform as well as collective development.25

Several Western scholars, including Toynbee (1935), Hitti (1958), Hodgson (1977), Baeck (1994) and Lewis (1995) have argued that Islam played a positive role in the development of Muslim societies in the past.26 This can be attributed to the strong

22 Martha Nussbaum, Creating Capabilites, above n 21, 33; compare Sen, Development as Freedom, above n 7, 3. 23 For instance, Hamed Deyab reports that the budget of al-Andalus exceeded 12 million golden dinars, Hamed Deyab, al-Kutub wa al-Maktabat fi al-Andalus, above Ch 3 n 41, 70. 24 Sayīd Qutb, al-ʿadalah al-Ijtima’iyya fi al-Islam (Dār al-Shuruq, 13th ed, 1993) 11. 25 Muhammed al-Ghazali, al-Islam wa al-Awda' al-Iqtisādiyya (Nahdat Misr, 2005) 42-43. 26 Muhammed Umer Chapara, ‘Ibn Khaldun’s theory of development: Does it help explain the low performance of the present-day Muslim world?’ (2008) The Journal of Socio-Economics 37 846.

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linkage that Islam draws between deeds that should be done in this world (dunya) and its reward or punishment in the Hereafter (akhira). This linkage paved the way for a balanced and rapid progress for the Muslim society where believers were not only motivated by economic interests but also with reward in the Afterlife from the Supreme Creator of the universe.27

Muslim scholars use ‘ʿimara’ 28 as a synonym for the modern concept of ‘development’. The termʿimara came in the Holy Qur’an to refer to establishing human civilisation under God’s name on earth.29 From a Muslim perspective God (Allah) has created the universe and ‘placed all the material resources at the disposal of humans to empower them to serve humanity and the rest of creations in servanthood of the Cherisher Lord’. 30 As a result, human being as the khalifa (vicegerent)31 of Allah on earth, has to seek development that is consistent with the method revealed from Allah through His Prophets to humankind.32

The Islamic conception of ʿimara includes seeking economic progress but goes beyond that. It entails systematic efforts to qualify the society to serve the purposes of Allah Almighty.33 In achieving that, the development process must enhance the overall well-being of society, in terms of promoting health, employment, education training and technological progress as only these will guarantee the ability of the humans to carry on the obligations of stewardship assigned to them by Allah.34

The concept of social justice is central to the Islamic concept of development.35 Law and policymakers are directed by the sources and objectives of Islamic Shari’a not only to ensure the maximisation of wealth but also to empower people to lead meaningful lives in terms of ‘general need fulfillment, full employment, and

27 Abbas Mirakhor and Hossein Askari, Islam and the Path to Human and Economic Development, (Palgrave Macmillan, 2010) 57. 28 Fuad A. Ahmed, al-Sīyāsa al-Sharʿiyya wa ʿalaqatuha bi al-Tanmiya (Islamic Bank for Development, The Islamic Institute for Research and Training, 2003) 76. 29 The Quran (Sahih International trans) 11:61. 30 Abbas Mirakhor and Hossein Askari, Islam and the Path to Human and Economic Development, above n 27, 91. 31 We will discuss below how the concept of vicegerency influences the function of private property in Islamic Shari’a. 32 Ibrahim al-’asal, al-Tanmia fi al-Islam: Mafāhīm, Manāhij wa Tatbiqat (al-Mu’asasa al-Jamiʿiya li al-Nashr wa al-Tawziʿ, 1996) 63. 33 Abd al-karim Bakkar, Mudkhal ila al-Tanmia al-Mutakamila (Dār al-Qalam, 2008) 10. 34 Ibid. 35 Muhammed Umer Chapra, Islam and Economic Development, above n 26, 4.

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equitable distribution of income, without unduly large or prolonged imbalances’.36 Chapter 5 will shed more light on the Islamic conception of social justice and its potential relationship to IP.

Both Islamic and secular perspectives take into account overall social welfare.37 The Islamic perspective on development also implies positive progress or as Fuad Ahmed observes ‘collective civilizational improvement through a balanced interaction among devotional, social and economic factors that lead to a rise in need fulfillment for the community in a gradual and sustainable manner’.38

The main driving factors of development (good health, education and income) are strongly linked to the maqasid al-shari’a (objectives of Islamic Shari’a), particularly its objectives in maintaining nafs (life), ʿaql (intellect) and mal (wealth). Muslim law and policymakers are directed to promote these ‘human capabilities’ — to use the language of Sen and Nussbaum — through the normative framework of the maqasid al-shari’a.

For instance, pursuing Islamic Shari’a’s objective in maintaining nafs includes promoting good health as one of the main factors of development. Similarly, preserving ʿaql and mal encompasses good education and increasing income.39 As discussed below, the relation between maqasid and the driving factors of development has a significant bearing on defining the relationship between current regulation of IP and Islamic Shari’a.

4.2.3 Maslaha Mursala, Public Interest and Development

Maslaha mursala, as a secondary source of Islamic Shari’a, is about the consideration of the overall public interest in adopting emerging issues into Islamic Shari’a. This section aims to define the best possible manner by which the public interest can be measured. This will be achieved by defining the relationship between

36 Ibid 59, in the same context Fuad Ahmed, above n 28, 78. 37 The Islamic perspective on development is in line with the new concept that emerged three decades ago which looks beyond the material welfare to individual as a measurement for development, to consider the latter as collective process that should be conceived also on moral basis, Abbas Mirakhor and Hossein Askari, Path to development, above n 27, 105 38 Fuad. A. Ahmed, above n 28, 62 39 Compare, al-Tahir B. Ashur, Maqasid al-Shari’a al-Islamiyya, above Ch 2 n 65, 302 and Al-Būti, above Ch 2 n 62, 351.

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the concept of public interest and development, on the one hand, and the relationship between public interest and maslaha mursala, on the other.

With regard to the relationship between public interest and development, it is argued that development is the best representative of the notion of public interest for reasons discussed below. First we might discuss how the public interest is connected to development.

It can be understood from the above mentioned description of the term ‘development’ and its associated aspects that it ‘connotes a sense of positive change’ 40 in the economic, social and political structure of the society which ultimately seeks to achieve the highest levels of welfare within a given society.41 Common sense suggests the concept of public interest and the concept of welfare are two sides of the same coin. This means that actualising some level of development includes achieving the public interest. Accordingly, the term development and the relevant studies in the fields of economic and social science will be used in this research to indicate and measure the public interest. In other words, to determine whether the current international systems of IP secure the public interest, we must examine how such systems would impact on the development process within a developing society.42

The rationales behind using development to mean public interest, for the purpose of this research are twofold:

Public interest remains a broad academic concept with no international institutions to define it. In this context, Burton Weisbrod states that

40 James Midgley, above n 18, 26. In a similar vein Manohar Pawar and David Cox observe development as collective process that passes by degrees or stages towards a more advanced or mature society. Manohar Pawar and David Cox, Social Development: Critical Themes and Perspectives, above n 19, 14. 41 Rami Olwan observes that it is a process ‘often involving major changes to the existing social structures and [the] popular attitudes that transform a nation’s overall standard of living from unsatisfactory to satisfactory. Rami Olwan, Intellectual Property and Development: Theory and Practice, above n 2, 5. 42 The conclusion mentioned above regarding integration of the secular perspective on development and public interest applies to the Islamic perspective on development which provides additional support to use the concept development as a measurement for maslaha mursala.

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The term public interest is complex and not susceptible of any simple definition. While the term ‘public interest’ has been used in many contexts throughout the ages, there has developed no consensus as to what it means, even in an approximate sense.’43

The same does not apply to the term development. Development has received significant attention worldwide with special international organisations44 devoted to it and a great number of international reports outlining specific factors that assist in measuring it.45 Accordingly, the different measures used to determine whether IP promotes development should be considered valid for determining whether IP promotes the ‘public interest’ under the terms of maslaha mursala. This thesis argues that IP is acceptable under maslaha mursala only if it promotes development.

In addition, this study is mainly concerned with Libya and its Muslim counterparts which all happen to be developing countries.46 Based on the foregoing arguments, actualising development in Libya or elsewhere in the Islamic World would be inclusive of securing the public interest.

As for the relationship between the Islamic concept of maslaha mursala and public interest (development), in Chapter 2 we saw that the Arabic term maslaha literally means interest/benefit and mursala means unregulated. 47 The combined terms indicate the consideration of public interest (development) in adapting new issues within the society into Islamic Shari’a. Maslaha mursala expresses the pragmatic

43 Burton A Weisbrod et al, Public Interest Law: An Economic and Institutional Analysis, (University of California Press 1978), 4. 44 According to the Dictionary of Development Organisations, there are 70,000 organisations devoted to development worldwide, . However, the most famous at an international level include the United Nations Development Programme (UNDP); Organisation for Economic Co- Operation and Development (OECD) , and Oxfam European Report on Development (ERD) and Arab Human Development Report . In addition, the Human Development Index (HDI) which is ‘a comparative measure of factors like life expectancy, literacy, education and standards of living, well- being, especially child welfare for all countries worldwide’ provides sensible measurement to decide whether the welfare of certain communities has been achieved. No comparative measurement could be found for ‘public interest’, Human HDI, . 46 Although there is no international consensus on the term ‘developing countries’, various international organisations with different standards have classified the Islamic countries among the developing nations regardless of their level of income per capita. See for instance, the International Monetary Fund (IMF) and World Bank . 47 See p 32, one commentator observes that the Arabic term maslaha ‘is much closer in meaning to well-being, welfare, and social weal’ Opwis Flectias, ‘Maslaha in Contemporary Islamic Legal Theory’ (2005) Islamic L. & Soc'y, 183.

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aspect of the process of law making in Shari’a, since the central intenet of its operation is the overall welfare of the community.48

Maslaha mursala is a dynamic source of Islamic Shari’a that operates on the consideration of unregulated public interest. In this context an eminent Muslim scholars (al-ʿizz Ibn Abd al-Salam) asserts that ‘all the teachings of Islamic Shari’a are advice [to humankind] to prevent any potential harm that [they] might encounter, or bring about public interests’.49 Ibn al-Qayyim al-Jawziyya 50 and Ibn Taymiyya 51 have made the same observation.

The relationship between maslaha mursala on the one hand, and public interest (development) on the other, should be understood as a relationship between a purpose and its means. Development is an interest which is the purpose of all Muslim societies; maslaha mursala is the means which Shari’a uses to actualise that interest.

Hence, assessing whether the currently dominant international system of IP or, for that matter, any given IP system could or could not be acceptable in Islamic Shari’a by virtue of maslaha mursala, we must consider whether that system would adhere to the Islamic perspective on the public interest. The public interest is achieved when the IP system promotes or, at least, does not hinder the overall development of Muslim societies.

4.2.4 The Role of Maslaha Mursala in the Formation of the Muslim Society

State-building in the modern times requires meeting various considerations that include: a righteous and advanced political configuration, balanced economic structure, modern education system, efficient technological base, adequate health care and fair regulation for contractual (civil or commercial) relations within the

48 See p 32. 49 Al-‘izz Ibn Abd al-Salam, Qaw’aid al-Ahkām fi Islāh al-Anām (Dār ibn Hazm, 2003) 14. 50 Ibn al-Qaiyyim states that: The rules of Islamic Shari’a are based on bringing about the welfare [interests] of the Muslims in this life (al-ma’ash) and in the hereafter (al-ma’ad). And it [the Shari’a] is all justice, all mercy, all interests and all wisdom. Accordingly, any matter that appeared to be unjust, unbeneficial, unmerciful or unwise it cannot be considered as a part of Islamic Shari’a Ibn al- Qayyim, aʿlam al-muwaqiʿīn (Dār ibn al-Jawzi 2002) Vol. 3, 3. 51 Ibn Taymiyya holds that ‘Islamic Shari’a came to secure the interests and develop Muslim societies, and prevent harm [or] minimise it’ Ahmed Abd al-Halīm, Minhāj al-Sunnah, Vol 2, 131, cited in Adnan Muhammed Osama, al-Tajdīd fi al-Fikr al-Islami (Dār ibn al-Jawzi, 2001) 34.

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society. These considerations are necessities for state formation and the extent to which a state is prosperous is determined by the efficiency of each of them. In order to be efficient, these pillars are supposed to operate under an effective law-making process that keeps abreast with advances in human knowledge and the increased sophistication of the economic and social foundations of the community.52 At this juncture, one might ask: how is maslaha mursala relevant to state formation?

First we need to emphasise what was discussed in Chapter 2 of this thesis: the rules of Islamic Shari’a are a complete way of life that regulate — in addition to devotional matters — the relationships among individuals, between individuals and the state and among states at the international level.53 Accordingly, in a country where the dominant population is Muslim, it is a matter of social security to make sure that the rules of Islamic Shari’a have a bearing on what is considered to be in their interests in the process of state-building.54

Policymakers, as constantly emphasised in fiqh al-sīyāsa al-sharʿiyya ‘jurisprudence of Islamic legal policy’,55 are supposed to consider the role of Islam in building institutions within the state and in the operation of these institutions. This should be done by issuing laws and regulations whenever needed. This is where the role of maslaha mursala comes in.

52 In a modern state the political, social and economic structures are institutionalised are governed with different laws and regulations enacted by people’s representatives. It is the law which constitutes the different authorities in the state, and regulates the relationships between spouses, parents and children in the family, Phil Harri, an Introduction to Law (Cambridge University Press 2007) 12. 53 See p 21 et seq. 54 Iman al-‘izz Ibn Abd al-Salam states that ‘the worldly interests (al-masalih al-dunyaweya) are in generally realised according to necessities, experiments, habits and realistic speculations’ which means that in defining what could be considered as an interests the concerned party has to resort to a knowledge-based process and avoid arbitrary assumptions in doing so. Al-‘izz Ibn Abd al-Salam, above n 49, 13. 55 In Islamic Jurisprudence, there exists a separate discipline called ‘Islamic Legal Policy’ which is based on a central argument known as ‘Divine Governance’, that is, a principle derived directly from the Holy Quran and the Sunnah. According to ‘Divine Governance’ Muslim policymakers must adhere to the will of Allah in all their actions and make sure that the decisions and strategies that they conduct have roots in Islamic Shari’a. See for example, Yūsuf al-Qaradawi, al-Sīyāsa Sharʿiyya (Maktabat Wahba, 2011) 18. One of the first Muslim scholars who wrote on this important discipline was Ibn Taymiyya (1263 – 1328 CE), al-Sīyāsa Sharʿiyya fi Islah al-Raʿī wa al-Raʿiyya (meaning: Islamic legal policy in advising the rulers and community).

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Felicitas Opwis notes that ‘Since the the 14th century and the late 19th century century jurists of Islamic Law have increasingly drawn upon the concept of maslaha to address changes in the political and social environment’.56

For instance, Islam does not impose any particular kind of political system on the Muslim community. The Qur’an instructs that any state matter should be settled by way of Shura57 (consultation) regardless of the way in which the Shura might take place. Be it through parliament, advisory council or tribal gatherings. It is the maslaha mursala which should legitimise one of the choices and adopt it within the rules of Shari’a after making sure that the chosen system is responsive to the interests of the Muslim societies and does not conflict with an established rule in the Qur’an or Sunnah.58 Furthermore, it is the maslaha mursala which would advise the policymakers on the best method of choosing the head of state, the ministers and the high-ranking officials within the state.59

In addition, contemporary Islamic institutions such as the International Islamic Fiqh (jurisprudence) Academy in Jeddah, Kingdom of Saudi Arabia have applied the non- textual sources — specifically maslaha mursala — in addressing matters related to technology, medicine and legal affairs.60 The same thing would apply within a state, where policymakers could apply maslaha mursala to address important issues in social and economic reform on which there is no authority in the textual sources of Islamic Shari’a. One commentator gives examples that include labour law, traffic laws, agricultural and industrial activities and in addressing the advances that take place in the medical field.61

Idris Hamadi (Professor of Principles of Islamic Jurisprudence)62 has studied the role of maslaha mursala in the formation of human society (al-Masālih al-Mursala wa

56 Felicitas Opwis, ‘Maslaha in Contemporary Islamic Legal Theory’ Islamic Law and Society, Volume 12, Number 2, 2005, 220. 57 The Quran (Sahih International) 42:38. 58 Abdalhameed A. Mahmoud, maslaha mursala wa tatbiqateha almo’asera fi al-hokm wa al-nodom al-seyaseya (Master Dissertation, National Alnajah University: Nablus, 2009) 123. 59 Ibid 162. 60 See p 41. 61 Abdu Allah M. Saleh, ‘al-maslaha al-mursala wa tatbiqatuha al-mu’asera’ (2000) majalat jami’at demashq vol 1. 62 Fes, Morocco.

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bina’ al-Mujtamaʿ al-Insani) through the classic writings of both: Ibn Khaldun63 and Imam al-Shatibi. 64 He concluded that the maslaha mursala doctrine is relevant in the process of law making as well as in theʿimara (development) of society65

Hamadi embarks from an established assumption in the Principles of Islamic Jurisprudence, that is, the entire purpose of Islamic Shari’a (maqasid al-Shari’a) 66 is to secure the interests of the community through preserving religion (Dīn), life (nafs), intellect (ʿaql), lineage (nasl) and wealth (mal).67 He takes into consideration that whatever sustains these five purposes is an interest that could be considered to be maslaha mursala.68 Economic efficiency and wealth accumulation is only one of the objectives of Islamic Shari’a.

For instance, the Shari’a objective which aims at preserving human life requires that any legislation enacted must not restrict access to essential and lifesaving medicine. The objective which seeks to preserve human intellect obliges policymakers to consider providing full access to educational materials. The objective of preserving wealth obliges policymakers to consider the enactment of laws that contribute to the economic growth of the society.69

Hamadi draws upon the theory of Imam al-Shatibi regarding maslaha mursala70 in actualising the legal reform needed for the advancement of society. Al-Shatibi’s

63 Abū Zayd ‘Abdu-Rahmān bin Muḥammad bin Khaldūn al-Hadrarami d.1406 CE) was a Muslim historiographer and historian who is often viewed as one of the forerunners of modern historiography, sociology, and economics. . 64 Ibrahim bin Mosa bin Muhammad al-Shatibi (d. 1388 CE) Islamic legal scholar. 65 Idris Hamadi, al-Masālih al-Mursala wa bina’ al-Mujtamaʿ al-Insani (al-Ma’ārif al-Jadida, Morocco, 2009) 5 et seq. 66 Chapter 2. 67 Idris Hamadi, above n 65, 80-81.Imam Abu Hamid al-Ghazali (1058–1111C. E) in his renowned treaties al-Mustasfa (The Clarified in Legal Theory) was the first who classified the purposes/objectives of Islamic Shari’a (Purposes of Islamic Shari’a). He states that: The objectives of the divine revelation could be classified into five, these are, the preservation of religion (din), life (nafs), intellect (aql), lineage (nasl) and wealth (mal). Accordingly, whatever actions that might secure achieving one of these maqasid is an interest for the community and whatever action that might obstruct one of these objectives is a harm the prevention of which is an interest for the community. Abu Hamid al-Ghazali, al-Mustasfa, (al-Jami’a al-Islamiyya) vol 2, 482. 68 Ibid, 200. Compare Mohammed Hashim Kamali, al-maqasid al-shari’ah/ the objectives of Islamic Law, at 2, the Association of Muslim Lawyers, . ‘fiqh al-imar’ (Jurisprudence of Development) al-shari’a wa al-haya TV program, 25/04/2010 (Yūsuf al-Qaradawi) available online at: . 70 Imam al-Shatibi articulated his theory on maslaha mursala in his book of ‘al-Muwafaqat fi Usūl al- Shari’a’. Al-Shatibi, al-muwafaqat fi Usūl al-Shari’a (Dār ibn Affan, 2003) Vol. 1,12.

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theory provides lawmakers with comprehensive parameters for applying the maslaha mursala to the unregulated issues that might face the community as a result of the elapse of time, the change of location and human knowledge. Al-Shatibi’s theory offers guidance in terms of the classification of the interests that can be considered, the different scope of such consideration and the conditions that need to be met. 71

The maslaha mursala has influenced Ibn Khaldun’s perspective onʿimara (development) contained in his renowned work al-Muqaddima.72 Hamadi maintains that the maslaha is embodied in all that which serves human beings in terms of their livelihood and in terms of their progress scientifically and industrially.73 Its aim is to raise the status of the society from merely seeking the necessary requirements of survival to one of general welfare.74 In this context, he cites Ibn Khaldun’s words from al-Muqaddimah, who argues that al-ʿumran (development) is a necessity for humans, and securing its foundations is a prerequisite for achieving it. 75 The foundations of al-ʿumran should today be defined according to the definitons and measures of the welfare state, particularly those contained in the relevant UN reports and the research of leading scholars such as Nussbaum and Sen.

In summary, maslaha mursala is the most efficient tool for helping the Muslim community to build modern states based on effective political systems, modern economic structures and resourceful educational systems by applying the new ideas that emerge in modern times to the sources of Islamic Shari’a. It works as a thread that links the beliefs of Muslims that emerged fourteen hundred years ago to the sophistications of the modern day.

In this context, Yūsuf al-Qaradawi76 observes that what made Muslim scholars insist on the necessity of maslaha mursala in the process of law-making and in building the judiciary system, is the need they felt that doing so would be in the best interest of Muslims in the modern day.77 He further indicates that waliu al-amr (Islamic government) may use maslaha mursala in carrying out the community’s affairs in a

71 Al-Shatibi, al-Mūwāfaqat fi Usūl al-Shari’a, (Dār ibn Affan, 2003) Vol. 2, 8 et seq. 72 This literally means ‘introduction’, and is known in English as Prolegomenon. 73 Idris Hamadi, above n 65, 31. 74 Ibid 200. 75 Ibid 322. 76 Yūsuf al-Qaradawi is one of the most influential Islamic Scholars of modern day, and the Chairman of International Union of Islamic Scholars. He has been writing in different fields in Islamic Shari’a since the 1950s: . 77 Yūsuf al-Qaradawi, above n 55, 104.

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way that brings about welfare and prevents harm. This applies particularly to those interests that Shari’a came mainly to preserve (religion, life, intellect, lineage and wealth) through the issuance of modern legislation based on maslaha mursala in all fields of public affairs. This, in turn, will secure individual well-being, family happiness, social stability, development and the flourishing of civilisation.78 Do the current and dominant IP systems fit into Islamic Shari’a’s idea of developed society?

4.3. The Current IP System and Islamic Shari’a

Various commentators have emphasized the importance of maslaha mursala in addressing the questions surrounding the legitimacy of IP as an unregulated issue in the textual sources of Islamic Shari’a. 79 International Islamic forums, 80 Muslim scholars81 and commentators on IP and Islamic Shari’a have concluded that maslaha mursala justifies the protection and enforcement of IP.

Heba Raslan summarises the trend which adopts IP into Islamic Shari’a by employing the concept of maslaha mursala:

From my point of view, preserving and protecting public interest from a Shari’a perspective calls for observing IP rights. Most intellectual creations, whether they are inventions, computer programs, books or trademarks consume significant amount of effort, time resources, and money. Those who develop such creations and those who publicly disseminate them deserve some form of compensation for their efforts ... Thus they have a legitimate interest in protecting their production and in earning profit. IP laws allow creators to financially benefit from their creations ... this right; however, is conditioned on fully disclosing creations to the public. Furthermore, the right is limited in duration so that after a specified period of time, the creation becomes public property, and everyone can freely use it. Accordingly, IP laws have society’s interests at heart.82

78 Ibid 69. 79 See p 82. 80 International Islamic Fiqh Academy, Resolution No 43 (5/5) 1988 Regarding Incorporeal Rights, available online at: . Also see the al-Azhar Fatwa Committee in a number of opinions issued on April 20, 2000 and August 16 2001 cited in Raslan above Ch 1 n 12, 503. 81 We have referred previously to fatwa issued by Professor Wahba al-Zuhili regarding the legitimacy of copyright by virtue of maslaha mursala. Ida Abdul Ghani Azimi adds that other renowned Muslim scholars in the twentieth century (Mustafa al-Zarqa, Ali al-Khafif and S. Rajab Mahmasani) have also approved ‘transactions involving intellectual property on the basis of maslaha mursala’ Ida Azmi, ‘Basis for the Recognition of Intellectual Property in Light of the Shari’ah’ above Ch1 n 54, 660. 82 Raslan above Ch 1 n 12, 526. To back up her claims Raslan examines the consequences of the absence of IP system, she argues that ‘[t]he best way to show the inaccuracy of the claim that society suffers a huge loss from strong intellectual property protection is to examine the consequences of weak protection. In a country with lax intellectual property protection, where counterfeiting,

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Those who have used maslaha mursala to justify Islamic Shari’a’s recognition and protection of IP do not differentiate between employing maslaha mursala to recognise and protect ownership of intellectual products and and using maslaha mursala to justify the currently dominant systems of IP, as manifested in the main international conventions and the dominant laws and policies of the developed countries. The enactment of IP laws may contribute to promoting development, and therefore, is justified under maslaha mursala. Nevertheless, this does not extend to the currently dominant IP systems which may not promote development as maslaha mursala requires.

Therefore, one needs to treat the findings of Raslan and other commentators, on the compatibility of IP and Islamic Shari’a, with caution.83

The existing studies on IP and Islamic Shari’a fail to investigate whether the current IP systems would ‘really’ promote the progress and advancement of poor countries and whether the systems will assist those countries to achieve human, social and economic development. Based on the linkage drawn between maslaha mursala, public interest and development, I observe that an investigation of the role current IP systems play in development processes of Muslim countries (as developing countries) is crucial to determining their compatibility with maslaha mursala.

The currently dominant IP systems were not set up to promote development. Now- developed countries (NDCs) were able to promote development without the current levels of protection offered by these systems. Finally, the systems are negatively linked — or at best neutral — in relation to the main measures of development: public health, access to education and economic growth. Therefore, the current IP imitation, and piracy practices are prevalent, the absence of an incentive to create would eventually destroy the scientific and technological base and lead to the immigration of scientists. This would not only diminish the ability of national businesses and industries to compete efficiently in local market but also, more importantly in this era of globalisation, in foreign markets. Additionally, consumers would end up losing their confidence in a market characterised by unfair competitive practices and a lack of safety standards. The government would be deprived of significant tax revenues on profit from counterfeited and imitated goods. Cultural life would suffer heavily since writers and artists would become less willing to create original works not only for the lack of incentive but, more importantly, out of fear of piracy. Accordingly, the benefits to society from an intellectual property system outweigh the benefits expected from a free shared knowledge for all’ system. Therefore, the doctrine of public interests of Shari’a calls for protecting and enforcing intellectual property rights. Raslan, above Ch 1, n 12, 527-528. 83 Many researchers who have studied the subject are expert in one aspect of the issue. In other words, either they were experts in Islamic Shari’a but not intellectual property or specialists in IP but not experts in Islamic Shari’a. This may explain the lack of comprehensive theory on IP and maslaha mursala.

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systems fail to respond to maslaha mursala and the objectives of Islamic Shari’a, which use development as a yardstick for assessing IP laws.

4.3.1 Absence and Pressure: the Role of Developing Countries in Institutionalising the International IP System

To better understand whether the current international IP system secures the interests of Muslim developing countries, it might be useful to investigate what role — if any — they have played during the conclusion of the main agreements that represent the international IP system.

Those main agreements, as alluded to in Chapter 3, include the Paris Convention, the Berne Convention and the TRIPS Agreement.

With regard to the Paris Convention, the only developing country that was present at the time of its conclusion in 1883 was Brazil.84 The vast majority of developing countries became parties to the Convention from the 1960s.85No Islamic independent country was among the original signatories. The only country with a predominantly Islamic population that had the chance to be part of the Convention in its early days was Tunisia, which acceded to the Paris Convention on 20 March 1884. This does not mean that it had any role to play in the negotiations that led to concluding the Convention as it was a French colony at that time.86

In the Paris Convention, significant issues which have formed the current international patent system87 were negotiated among the NDCs. Peter Yu sheds light on some of these issues:

Countries ... disagreed on how and what type of universal rules the international community should adopt. While the French delegates wished to derive the uniform rules from the French

84 According to WIPO website, the only developing country that signed the Paris Convention on (20/03/1883) was Brazil among other countries from the European Continent that include Switzerland, Spain, Italy, France Portugal, Netherland and Belgium. WIPO, Treaties, . Rami Olwan adds the UK and Serbia as signatories to the Paris Convention and mentions Tunisia as original signatory, Rami Olwan, Intellectual Property and Development: Theory and Practice, above n 2, 6. 85 This includes the majority of Islamic countries. 86 WIPO, Treaties and Contracting Parties Contracting Parties, Paris Convention, Tunisia: http://www.wipo.int/treaties/en/Remarks.jsp?cnty_id=326C 87 Paris Convention regulated different forms of IP. As mentioned in the first chapter, referring to patent at this stage is due to its vital importance in terms of securing the public interest in comparison with the other form of IP contained in art 4 of the Berne Convention.

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law, the other delegates refused and stood by their own laws. To make things more complicated, some countries, like the Netherlands and Switzerland, did not offer any patent protection at all, and Germany remained heavily influenced by the anti-patent movement. By the middle of the Congress, it was apparent that [the only important question upon which an agreement could be reached was the principle of national treatment of foreign countries] therefore could not reach a consensus on other questions, such as [previous examination of the invention, conditions of patentability, (and) effects of registration of trademarks].88

Developing countries in general and Muslim countries, in particular, were not represented in the formation of the Paris Convention and they did not participate in the norm-setting process which introduced the current international system for protecting ‘Industrial Property’.89 Instead, those rules were transplanted into the legal systems of developing countries — including the Muslim states — through colonisation,90 which did not demonstrate any consideration of the local concepts of ownership91 or the reality and needs of the colonised countries.92

The discussion regarding the Paris Convention applies as well to the Berne Convention. The views and national copyright laws of some European countries influenced what should and should not be included in the Berne Convention.93

Here as well, colonialism had an essential role to play in the expansion of the copyright provisions, produced in individual states and contained in the Berne

88Peter K Yu, ‘Currents and Crosscurrents in the International Intellectual Property Regime’ (2004- 2005) 38 Loy. L. A. L. Rev, 349. It appears from the citation above that the discussions took place between the powerful countries of that time which certainly had integrated its local perspectives on ownership of knowledge. Those perspectives do not necessarily resemble those of the rest of the world, especially, those of the Islamic countries as will be discussed below. 89 Peter Drahos, ‘Developing Countries and International Intellectual Property Standard-Setting’ (2002) The Journal of World Intellectual Property, vol 5, 765 90 Peter K Yu, ‘International Enclosure, the Regime Complex, and Intellectual Property Schizophrenia’, (2007) Mich. St. L. Rev, 5. 91 Carolyn Deere, ‘Developing Country Perspectives on Intellectual Property in the WTO: Setting the Pre-TRIPS Context’ in Carlos M. Correa, Research Handbook On The Protection Of Intellectual Property Under WTO Rules Intellectual Property in the WTO (E. Elgar, 2009) Volume I cited in Olwan, above n 2, 36 92 Ibid. 93 Paul Goldstein, International Copyright: Principles, Law, and Practice, (Oxford University Press, 2001) 20. One commentator argues that:

Under the membership terms of the Berne Convention ... all signatories ... must agree to establish and enforce, within their own borders, certain minimum standards of copyright protection — recognised to be highly restrictive of public use and to contain the ‘strong authors’ bias that is the ‘Grundnorm of Berne’ for all works of foreign nationals. Alan Story, ‘Burn Berne: Why the Leading International Copyright Convention Must Be Repealed’ (2003) Houston Law Review, 771; see also, Jane C. Ginsburg, ‘International Copyright: From a ‘Bundle’ of National Copyright Laws to a Supranational Code?’(2000) Public Law & Legal Theory Working Paper Group, 4.

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Convention. Four major countries that had signed the Convention in 1886 (France, Germany, Britain and Spain) took advantage of Article 19 of the Berne Act for the Berne Convention, which gave them the right to accede to the Berne Convention at any time on behalf of their colonies.94 They included colonies around the world, with the consequence that most developing countries had their copyright laws tailored for them.95

Peter Drahos explains how the British Copyright Law of 1911 was transplanted onto Malaysian soil following the familiar colonial practice. 96 Ruth. L. Okediji aptly describes the role that developing countries, in general, played in the formation of the international IP system:

In this respect, non-European peoples and their territories were, initially, mere objects of inter-European economic rivalry [which as alluded to above, included the content of the conventions that formed the international IP system]. Nineteenth century international law offered the doctrinal tools of ‘war’ and ‘treaties’ to resolve competition among Europeans for control and ownership over non-European territories and peoples (emphasis added).97

Rami Olwan has traced the history of developing countries in relation to both the Paris and Berne Conventions. From his research, it is apparent that all developing countries were able to do regarding the rules contained in the Paris and Berne Conventions was to attempt to revise them to suit their local needs. 98 Olwan concludes that:

History shows that developing countries were keenly interested, from the early development of the international IP system, to change the system to suit their development needs ... their demands were not listened to by developed countries which insisted that the system should remain as it is.99

94 Same Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886- 1986, (Kluwer, 1987) 791. 95 Ibid, 129. See also Drahos, above n 89, 767. 96 Drahos argues that in most cases, the transplant of intellectual property laws to developing countries has been the outcome of empire building and colonization. For example, in parts of pre- independent Malaysia, it was English Copyright Law that applied. When in 1911 the United Kingdom enacted the Copyright Act of 1911, its operation was extended to include ‘his Majesty’s dominions’ Drahos, above n 89, 766. 97 Ruth L. Okediji, ‘International Relations of Intellectual Property: Narratives of Developing Country Participation in the Global Intellectual Property System’ (2003) Sing. J. Int'l & Comp. L, 324. 98 Rami Olwan, above n 2. Olwan discusses the efforts of developing countries to inject the development dimension into the Berne and Paris Conventions and concludes that they achieved very little or no success at all, 37- 42. 99 Ibid 47.

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The TRIPs Agreement built upon the provisions of the Paris and Berne Conventions.100 Therefore, it has inherited the negativities that resulted from them in terms of developing countries’ lack of participation in the norm-setting process.

Despite the fact that the majority of the developing countries were represented in the negotiations that led to the conclusion of the TRIPs Agreement, it is unrealistic to assume that those negotiations were carried out among sovereign and equal states.101 A great deal of pressure has been exerted on developing countries first to accept the inclusion of IP matters in multilateral trade negations, and then to accept a set of rules that are widely believed to be oriented towards private interests.

Developed countries, led by the United States, realised that the issue of IP had to be integrated into the realm of international trade where efficient mechanisms for its enforcement could be found.102 ‘They pointed out that the General Agreement on Tariffs and Trade (GATT) forum provided for effective enforcement of agreements and for dispute settlement mechanisms which were practically lacking in the WIPO [World Intellectual Property Organization] administered Conventions.’ 103 This mechanism was later to be the responsible body for imposing ‘cross-collateral trade sanctions for non-compliance with the agreed minimum standards of intellectual property protection’,104 the World Trade Organisation (WTO) Dispute Settlement Body.105

The renowned economist and Nobel Prize laureate, Joseph Stigliz, states that ‘intellectual property should never have been included in a trade agreement in the first place, at least partly because its regulation is demonstrably beyond the competency of trade negotiators’.106Jagdish Bhagwati also comments that developing

100 See for example articles 1/3; 2 and 3 of the TRIPS Agreement. 101 Drahos, ‘Developing Countries and International Intellectual Property Standard-Setting’, above n 89, 769. 102 Surendra J Patel, ‘Intellectual Property Rights in the Uruguay Round: A Disaster for the South?’ (1989) Economic and Political Weekly, vol 24, No 18, 978-993, 798. Patel states that the main advocates of integrating the negotiations on IP into the Uruguay Round were US and Japan. The EC was hesitant for a while but eventually supported the U. S-Japan view. 103 Adronico Aded, ‘Origins and History of TRIPS Negotiations’ in Christophe Bellmann, Trading in Knowledge: Development Perspectives on Trips, Trade, and Sustainability, International (Centre for Trade and Sustainable Development, 2003) 25. 104 J. H. Reichman, ‘the TRIPS Agreement Comes of Age: Conflict or Cooperation with the Developing Countries?’ (2000) 32 Case W. Res. J. Int’l L. 441- 443. 105 Dispute settlement, 106 Joseph E. Stiglitz, ‘Intellectual-property rights and wrongs’ The Daily Times, 2005, .

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countries were forced to accept the integration of IP into the WTO system despite the fact that ‘it was clearly not a trade issue’.107

The negotiating history of the Uruguay Round leading to the adoption of TRIPs tells of different groups of countries with varying agendas. 108 The United States, the European Community, Canada and Japan were the main players among the developed countries.109 Driven mainly by the interests of big tax paying industries (e.g. pharmaceutical, computer software and microelectronics, entertainment, chemicals and biotechnology) they bargained for strong protection for intellectual property rights (IPRs) as they claimed to have lost over $50 billion in 1987 from a lack of protection.110 A coalition was formed between these competing industries in United States, the European Community and Japan, which had a shared interest in pressuring the other parties to accept IP provisions that best served their (the coalition’s) interests.111

On the other side of the negotiating table were the developing countries, led by a group of countries that opposed the position taken by the developed countries. The ‘hard liners’ 112 consisted of Argentina, Brazil, Cuba, Egypt, India, Nicaragua, Nigeria, Peru, Tanzania, and Yugoslavia. 113 The underlying objectives of those countries were different from those pursued by developed countries. What mattered for this group was to bargain for an IP regime that would assist in achieving their basic development and growth needs114 and secure adequate access to the essential

107 Jagdish Bhagwati, What Really Happened in Seattle, An abbreviated version of this essay was published in The Financial Times, under the title ‘An Unjustified Sense of Victory’, 21 December 1999. Available online at: . 108 The atmosphere that prevailed during the negotiations tainted deeply with mistrust stemming from the colonial experience’; therefore the developing countries aimed to prove themselves in the Uruguay Round without real success, see Gana Ruth, ‘Prospects for developing countries under the TRIPS Agreement’ (1996) Vanderbilt Journal of Transnational Law, 29 (4) p. 735, 737. 109 P Drahos, ‘Bits and BiPs’ (2001) The Journal of World Intellectual Property In another article Drahos describes them as ‘the Quad States’ and the supporters of the US business agenda, Peter Drahos, ‘Developing Countries and International Intellectual Property Standard -Setting’. Above n 89, 771. 110 Adronico Aded, ‘Origins and History of TRIPS Negotiations’, above n 103, 25. 111 Ruth Okidiji, ‘Public Welfare and the Role of the WTO: Reconsidering the TRIPS Agreement’ (2003) 17 Emory Int'l L. Rev, 819, 829 and 845. 112 This term used by Drahos, above n 89, 774. 113 Jane A. Bradley, ‘Intellectual Property Rights, Investment, and Trade in Services in the Uruguay Round: Laying the Foundations’ (1987) Stanford Journal of International Law, 81. It is noteworthy; however, that the LCDs were not part of any group as Drahos observes. Drahos, above n 89, 772. 114 Gana, above n 108, 736.

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medicines critical for treating hundreds of millions of their citizens with HIV/AIDS and tuberculosis.115

Peter Drahos points to the pressure exerted on the developing countries. He investigates whether the conditions of democratic bargaining were met in the negotiations that led to the TRIPS.

In Information Feudalism116 Drahos and Braithwaite identify certain criteria that have to be met in order for the international IP system to be democratic and thus secure ‘the public good’:117 These conditions are:

(1) All relevant interests must be represented in the negotiation of the property rights;

(2) All involved in the negotiation must have full information about the consequences of various possible outcomes; and

(3) One party must not coerce the others.118

In examining whether the first condition was satisfied in the TRIPs negotiations, Drahos observes that ‘[on] the face of it, this condition seems to have been met’.119 The interests of developing countries were formally represented as key developing countries such as Brazil and India did send negotiators.120

115 Okidiji, above n 111, 821. 116 Peter Drahos and John Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (Earthscan Publications, London, 2002). 117 Ibid, 190, Drahos argues that ‘democratic societies are likely to have more efficient property rights than totalitarian ones – like feudal or communist societies’ he seems to be convinced that this democracy should also be considered on the international level when attempting to negotiate on the property over information as the case in intellectual; property rights. 118 Ibid 190 et seq. 119 Drahos makes this observation in his article ‘Developing Countries and International Intellectual Property Standard -Setting’ above n 89, 770. While in his work Information Feudalism, which came before the mentioned article (2002) seems to have a different opinion. He starts by demonstrating how the IP regime under TRIPS prevents the African countries from acquiring adequate life-saving drugs by using WTO-dispute panel and states that: ‘They [developing countries] could import generic AIDS drugs from India, but when they do the global intellectual property regime punishes them through well-funded litigation by drug companies, threats from Europe and the US to withdraw foreign aid, USTR watch-listing, and the threat of bilateral sanctions backed by WTO dispute panels. How did they allow themselves to sign up to such an inefficient regime that is so transparently against their interests? One answer is that they were not represented when the deals were done. Egypt and Tanzania were the two most active African states. Neither could be described as a key player. Neither was in the room for the most important or decisive meetings that sentenced millions of African AIDS victims to death for want of drugs that were placed beyond their reach by monopoly profits extended by TRIPS patents ... The WTO formally meets the conditions of equal democratic representation for all states, but the informal reality was that most states were not represented.’ Drahos and Braithwaite, Information Feudalism, above n 116, 190. 120 Drahos, ‘Developing Countries and International Intellectual Property Standard -Setting’, above n 89, 770.

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Nevertheless, groups that are supposed to typically represent public interest objectives were noticeably absent from the TRIPs bargaining process. These include libraries, educational institutions, research institutes, and non-governmental organisations.121 The absence of these groups poses a critical question as to what extent the provisions of the TRIPs reflected the realities and needs of sectors whose participation is fundamental to the building and the flourishing of societies.

As for the second condition — ‘full information’ — it appears to be absent. It is true that for the developed counties, who pushed for negotiating IP within the trade forum, the trade gains were ‘beyond doubt’.122 However, developing countries were ‘in ignorance about the likely effects of the TRIPs’.123 For instance the African States have accepted the TRIPs twenty-year patent term on pharmaceuticals, which could result in millions of deaths among HIV/AIDs carriers in the continent. ‘South African trade negotiators simply did not understand that they were signing an agreement that would contribute to a situation by 2001 where, [according to Médecins sans Frontières], a 15-year-old would have greater than a 50 percent chance of dying of HIV-related causes’.124 In this context Stigliz concludes that:

I suspect that most of those who signed the agreement did not fully understand what they were doing. If they had, would they have willingly condemned thousands of AIDS sufferers to death because they might no longer be able to get affordable generic drugs? Had the question been posed in this way to parliaments around the world, I believe that TRIPs would have been soundly rejected.125

The absence of knowledge of the likely consequences might be attributed to the fact that developing countries did not have efficient bodies for consultation on IP matters like those in the developed world, or even like those attached to multinational corporations.126 In addition, the pressure that was put on those countries might have

121 Okidiji welfare, above n 111, 858. 122 Drahos, above n 89, 772 123 Ibid. 124 Drahos and Braithwaite, above n 116,191 and Rami Olwan, Intellectual Property and Development: Theory and Practice, above n 2, 77. 125 Joseph E. Stiglitz, ‘Intellectual-property rights and wrongs’ The Daily Times, 2005, . 126 One could find it difficult to compare between IP offices in developing countries which, many of them, operate on assistance from developed countries and from WIPO, and those offices in the developed world such as IP Australia or US Patent and Trademark Office. Some countries such as Libya do not even have this kind of offices as an independent governmental device.

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contributed to the lack of adequate information on the consequences of the TRIPs, which lead us to the third condition.

In relation to the third condition ‘absence of coercion’, Drahos concludes that here ‘TRIPs lies most exposed’.127 In 1989, the US Trade Act section 301128 entered into operation against the developing countries that resisted the United States views on what should and should not be included on the TRIPs Agreement. Brazil129 and India found themselves on the Priority Watch List which indicates the countries that are most worthy of trade sanctions; while Argentina, 130 Egypt and Yugoslavia were placed on the Watch List.131Developing countries were in no position to negotiate; either they accept the minimum standards promoted by the US and its partners, or face sanctions that would certainly harm their economies in the short term.132 Herein lies the apparent coercion.

The result according to Okediji is ‘an Agreement that in many respects reflected prevailing United States law and policy’,133 and ‘is not a reflection of the need to encourage creativity or to promote the public welfare [in developing countries]. Rather, the chief aim of the Agreement is to secure from these countries and societies the full monopoly benefits that Western intellectual property laws offer.’134

Accordingly, it seems that the phrase in the Preamble of the TRIPs Agreement which states ‘intellectual property rights are private rights’135 means that they are as such according to developed countries’ perspective, and that other local concepts on

127 Drahos, above n 89. 128 This is section is used as a tool by the US to impose sanctions that include the withdrawal of trade benefits or to impose duties’ on commodities from foreign countries, . For a detailed account regarding employing 301 in the negotiations of TRIPS, please see Drahos and Braithwaite, Information Feudalism, 88 et seq. 129Bello H. Judith, Section 301: The United States' Response to Latin American Trade Barriers Involving Intellectual Property, 21 U. Miami Inter-Am. L. Rev. 495 (1989-1990), 502. Judith points out here that the usage of Special 301againt Brazil came as a consequence for its refusal ‘provide adequate patent protection for pharmaceutical products’ at 502. 130 Ibid, 504. 131 Peter Drahos, above n 89, 774. 132 Ibid 774, Drahos argues in another place that ‘For the moment, the point we are making is simply that non-domination as a condition for democratic deliberation to settle an efficient regime of property rights was absent from the new global intellectual property regime’. Drahos and Braithwaite, Information Feudalism, above n 116, 192. 133 Okidiji, ‘Welfare’, above n 111, 825. 134 Ruth L. Gana, ‘Has Creativity Died in the Third World - Some Implications of the Internationalization of Intellectual Property’ (1995-1996) 24 Denv. J. Int'l L. & Pol'y , 141. 135 TRIPS Preamble.

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ownership and its role in advancing the society have not been considered, including that of Islamic Shari’a.136

The international IP system was not tailored to suit the interests of developing countries in general and Muslim Countries in particular. Therefore, it is questionable to argue that it is compatible with the maslaha mursala because it secures the interests of the society.137 Developing counties which are supposed to benefit the most from that system were either absent when it was built or were under irresistible pressure.

4.3.2 Was IP necessary for Development?

This part examines the history of IP laws and their relation to development in NDCs. The main argument is that there are various examples from NDCs which indicate that the level of IP protection offered by the currently dominant systems, particularly IP provisions in FTAs, was not needed to promote development, progress and social welfare in the NDCs. On the contrary, development was achievable with weak IP protection and in some cases without IP protection. Accordingly, the introduction of IP laws, especially according to the current international standards, does not necessarily promote the development of society as Islamic Shari’a requires.

It is widely observed that developed countries are extremely eager to introduce strong IP laws. The central argument for the proposed strong protection is that: strong IP laws promote the progress of society and secure the good of all. Developed countries introduced this argument in the negotiation that led to the making of the TRIPs Agreement as well as in their FTAs with developing nations. However, one might raise the following questions to examine the soundness of that argument:

1. Did the NDCs need IP laws by the standards of today to promote their progress?

136 Ida Azmi, above Ch 1 n 13, 307. 137 Chad M. Cullen sheds the light on two aspects of the TRIPS Agreement, these are, its impact on access to medicine and food. He concludes that it opposes the principle of maslaha mursala: ‘[Restricting] access to patented medicines and various agricultural products creates more of a problem. Although the argument has not been prominently voiced by legal scholars, restricting such access may violate the principle of Maslaha, which requires Muslims to care for and share with those less fortunate or facing hardship. By preventing the sick from using vital medicines or depriving the starving of an efficient and plentiful food source, enforcement of such patent rights stands directly opposed to Maslaha and may be considered a violation of Shari’a.’ Chad M. Cullen, ‘Can TRIPS Live in Harmony with Islamic Law: An Investigation of the Relationship between Intellectual Property and Islamic Law?’ (2010) SMU Science and Technology Law Review, 58.

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2. What if the TRIPS-standards / TRIPs-plus IP regimes were introduced and enforced in 1800s, when NDCs were in the early stages of development? Would those countries stand firm to their arguments?

Cambridge economist J. H. Chang has conducted extensive research on the history of NDCs.138 He points to examples where some NDCs have employed policies on IP that are different from what they demand from the developing countries today.

Chang states that:

Most now-developed countries established their patent laws between 1790 and 1850, and established other elements of their IPR regimes, such as copyright laws (first introduced in Britain in 1709) and trademark laws (first introduced in Britain in 1862), in the second half of the nineteenth century. All of these IPR regimes were highly ‘deficient’ by the standards of our time. Patent systems in many countries lacked disclosure requirements, incurred very high costs in filling and processing patent applications, and afforded inadequate protection to the patentees. Few of them allowed patents on chemical and pharmaceutical substances (as opposed to the processes) — a practice that continued well into the last decades of the twentieth century in many countries. (Emphasis added).139

The early IP system in the United States was highly deficient by present day standards. Lawrence Lessing has gone so far as to describe the United States as ‘a pirate nation’140 as, in the words of William Alford, it ‘was notorious for its singular and, in many regards, cavalier attitude toward the intellectual property of

138 J. H Chang’s research in this area has been included in several books and journal articles: J. H Chang, ‘Intellectual Property Rights and Economic Development: Historical Lessons and Emerging Issues’ (2001) Journal of Human Development, Vol. 2, No. 2; J. H Chang, Kicking Away the Ladder: Development Policy in Historical Perspective, (Anthem Press, 2003); and J. H Chang, ‘Under- explored Treasure Troves of Development Lessons: Lessons from the Histories of Small Rich European Countries’ in Monique Kremer et al, Good or Doing Better: Development Policies in a Globalizing World (Amsterdam University Press 2009). However, the most famous among these works was Kicking Away the Ladder. In this book Chang digs deep in the history of different rich nations such as US, UK, Netherland and Switzerland, in terms of the policies that they have employed in trade, industry and property. He observes that these policies were tailored to suit the local needs at that time and amounted to the development and prosperity of the mentioned nations. However, by the standards of today these policies are fought by the developed countries. And that is why he concluded that NDCs is kicking away the ladder which they have initially climbed, at 10. 139 J. H Chang, ‘Intellectual Property Rights and Economic Development: Historical Lessons and Emerging Issues’ above n 138, 290. Elsewhere Chang states that ‘in the early days of their industrialization, when they needed to import technologies from abroad, today’s rich countries all protected IPRs of foreigners only weakly. Many of them explicitly allowed the patenting of foreign inventions’ J. H Chang, ‘Under-explored Treasure Troves of Development Lessons: Lessons from the Histories of Small Rich European Countries’, above n 138, 2. 140 Lawrence Lessig, Future of Ideas: The Fate of the Commons in a Connected World (Random House, Incorporated, 2001), 106. In my view the description of pirate nation used by Lessig applies to the standards of today. What is deemed to be piracy today is a technology transfer similar to taking something from the common reserve of human knowledge in 1800s.

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foreigners’.141 Various examples can be advanced to demonstrate the weakness of the IP system in the United States in its early stages of development.

Before 1891, under United States Copyright Law, it was not possible for publishers from foreign countries to acquire copyright protection for their creative works.142 Even after that date, protection was denied to ‘publishers of English language books unless their works were printed in [the United States] or Canada’.143 This explains why the famous English novelist Charles Dickens travelled to the United States to complain about the piracy of his works by American publishers. 144 However, Dickens’ trip to the United States was not successful and the Americans continued to copy and publish his works until they considered it was in their own best interests to protect copyright.145

Prior to 1836, patents were granted in the United States without requiring any proof of originality, which led to the patenting of imported inventions. 146 It also ‘encouraged racketeers to engage in ‘rent-seeking’ by patenting devices already in use (‘phony patents’) and by demanding money from their users under threat of suit for infringement’.147 William Alford points out that after ‘every other nation in the world’ adopted the unified first-to-file system for patent applications, the United States’ approach continued to be based on the first-to-invent system ‘which discriminated against foreign inventors’.148

Likewise, the history of the patent system in Switzerland reveals very interesting facts that serve as a lesson for developing countries in the present day.149 H J Chang

141 William Alford, ‘Making the World Safe for What: Intellectual Property Rights, Human Rights and Foreign Economic Policy in the Post-European Cold War World’(1997) 29 N.Y.U. J. Int'l L. & Pol, 135, 146. 142 Ibid. 143 Ibid. 144 Rami Olwan, above n 2, 56. 145 Larisa Castillo, ‘Natural Authority in Charles Dickens's Martin Chuzzlewit and the Copyright Act of 1842’ (2008) Journal of Victorian Fiction, 437. Larisa cites Welsh who suggest that ‘the American piracy of Dickens’s novels was … arguably the primary reason for his American journey’. See also Gerhard Joseph, ‘Charles Dickens, International Copyright, and the Discretionary Silence of Martin Chuzzlewit’ (1991-1992) 10 Cardozo Arts & Ent. L.J, 532. 146 Chang, Kicking Away the Ladder, above n 138, 57. 147 Chang, ‘Intellectual Property Rights and Economic Development: Historical Lessons and Emerging Issues’, above n 138, 291. 148 Alford, above 138, 146. 149 Dominique S. Ritter, ‘Switzerland’s Patent Law History’ (2004) Fordham Intell Prop, Media & Ent L. What could be of particular importance to this research in this article are developments that have taken place in the period from 1888 to 1907. In that period there have been massive defiencies in the Swiss patent law due to the lack of adequate protection by the standards of today, at 478 et seq.

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observes that Switzerland was able to create strong innovation capabilities and become a world leader in technology in the 1800s without a patent system.150 The Swiss did not introduce a Patent Law until 1888 and, even after that time, the Swiss Patent Law protected only mechanical inventions (that is, inventions that could be represented by mechanical models).151 The 1888 Patent Law was introduced only after Switzerland had established technological supremacy over other nations. Patent law can thus be seen to have been introduced as a result of technological progress, rather than being the cause of it.152

The Swiss Patent Law was not extended to protect pharmaceutical and chemical inventions until 1907, following threats of sanctions by Germany. Only after 1907 did ‘a patent law worth its name [come] into being’.153 Even the Patent Law of 1907 was not strong by today’s standards, as there were ‘[several] exclusions, especially the refusal to grant patents to chemical substances (as opposed to chemical processes)’. It was not until 1954 that the Swiss Patent Law was amended to bring it into line with that in other developed countries ‘although chemical substances remained unpatentable until 1978’.154

Eric Schiff concludes that the absence of a patent law in Switzerland (and its weakness until 1978) did not prevent the Swiss from being ‘one of the most innovative [countries] in the world’. It was during that period that the Swiss produced world-famous inventions in fields such as textile machinery (eg the Honneger silk loom), food processing (eg milk chocolate, instant soup, stock [bouillon] cubes, baby food) and steam engines.155 Schiff indicates that the absence and then the weakness of Swiss Patent Law contributed to attracting foreign direct investment (FDI) to the country in areas like food processing, as it was more

Another highly cited authority on the history of patent in Switzerland in Eric Schiff, Industrialization without national patents: the Netherlands, 1869-1912; Switzerland, 1850-1907, (Princeton University Press, 1971). Mentioned in J. H Chang, Chang, ‘Intellectual Property Rights and Economic Development: Historical Lessons and Emerging Issues’ above n 138, 309. 150 Chang 2009, above n 138, 94. 151 Ibid. 152 Ibid. This conclusion should be remembered when studying the importance of IP in actualising economic growth. 153 Ibid. 154 Ibid. 155 Eric Schiff, above n 149, 108–112, cited in Chang, ‘Intellectual Property Rights and Economic Development: Historical Lessons and Emerging Issues 295, and Under-explored Treasure Troves of Development Lessons: Lessons from the Histories of Small Rich European Countries, above 138, 94.

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efficient for corporations wanting to produce patented food to establish plants in Switzerland than in other countries with stronger patent protection.156

Another example of the weakness of NDCs’ IP system can be found in the history of Patent Law in the Netherlands. The Dutch had enacted a Patent Law in 1817, although as a result of the widespread anti-patent movement in Europe, the Law was repealed in 1869157 ‘on the grounds that patents are artificially created monopolies that are not compatible with its free-trade principle’.158 Due to absence of a Patent Law in the Netherlands, Philips — the world electronic giant, which was founded in 1891 — made the most of Thomas Edison’s light bulb inventions without being concerned about being sued for patent infringement.159

The Germans used to infringe British trademarks. Ernest Edwin Williams, in his 1896 book Made in Germany, provided various examples of German violations of British trade marks in the 1800s.160

The history of IP laws in NDCs demonstrates that, even after the introduction of the pillars of the international IP system, namely the Paris and Berne Conventions,

156 Ibid, 102-103. 157 Chang, ‘Intellectual Property Rights and Economic Development: Historical Lessons and Emerging Issues’ above n 138, 291. 158 Chang, Under-explored Treasure Troves of Development Lessons: Lessons from the Histories of Small Rich European Countries, above n 138, 94. 159 Chang, Under-explored Treasure Troves of Development Lessons: Lessons from the Histories of Small Rich European Countries, above n 138, 94. 160 Ernest Edwin Williams, Made in Germany, William Henemann (London, 1896). Availabe online at: . Wiliams gives some interesting example of how the Germans used English logos on products manufactured in Germany one of which was in the cutlery industry : ‘Here was an opening for the German genius: and the world now glitters with German cutlery adorned with elegant suggestions (reproductions even) of the best praised Sheffield marks. Let me cite as a clamant and scandalous example, the Rodgers cutlery aforesaid. The maker of this firm have so exalted a reputation all over the globe that the customs of more than one State have put them in a special category in their scale of import duties. Need I add that in Germany this brand has been steadily marked down for fraudulent trade? To say nothing of direct imitations — (and, considering that the firm has been spending £1,000 a year in Fiqhting trade-mark thieves, we may assume that these are pretty extensive) — ingenious devices of a more indirect kind exist in shoals to testify to the German cutler's wit. To give an instance of the German commercial imagination: one firm has invented (for British India) a pretty trade-mark, a trade-mark figuring a pair of crossed dumb-bells and a wheel. It sounds original; but it looks so remarkably like the cross and star of the Sheffield house that purchasers have bought large quantities wherever it is shown, under the agreeable delusion that they were stocking their houses with the finest Sheffield steel. Other Germans have developed a taste for pseudonyms; and cutlery of their make may be met with bearing the legends, ‘Eudgens,’ ‘Eottgens,’ and the like, designed (I fear) ‘ with intent to deceive’ unwary customers in Oriental and other lands, where the niceties of European orthography are not known.’ 54.

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NDCs’ attitude remained unchanged for many years.161 Some of them did not join the international IP system until recently, while others did not introduce strong protection until it suited their level of development. This indicates that for a long time, the NDCs neglected the international framework of IP protection. Today, most of them would deny that this is the correct approach for developing countries.

Additionally, the history of NDCs, shows, according to J. H. Chang, how ill- informed the defenders of the current international IP system are in relation to the importance of IP in promoting the development of society.162 For instance, the US based National Law Center for Inter-American Free Trade argues that ‘[t]he historical record in the industrialized countries, which began as developing countries, demonstrates that IP protection has been one of the most powerful instruments for economic development, export growth, and the diffusion of new technologies, art and culture’.163

On the contrary, it can be argued that if the TRIPs standards were introduced in the early stages of development in NDCs such standards would have negatively impacted the industrial progress of those countries,164 given the strong substantive provisions for protecting of IP and the enforcement mechanism provided by the WTO’s Dispute Settlement mechanism. This might imply, as Chang concludes, that lenient intellectual property protection ‘may even be beneficial, or necessary, in the early stages of economic development’.165

161 Chang ‘Intellectual Property Rights and Economic Development: Historical Lessons and Emerging Issues’ above n 138, 292. 162 Ibid 291. 163 National Law Center for Inter-American Free Trade, Strong Intellectual Property Protection Benefits the Developing Countries, available online at: In stark contrast, one commentator states that ‘The historical record strongly suggests that many of today’s economic leader countries were themselves ‘knowledge pirates’ in the past, and benefited from being so’, Graham Dutfield and Uma Suthersanen, Global Intellectual Property Law (Edward Elgar, 2008) 8. Available online at: . I disagree with the description ‘pirates’ for the reasons given the in previous footnote; however, the above historical narration supports the latter conclusion. 164 Hiroyuki Odagiri et al, Intellectual Property Rights, Development and Catch-Up: an International comparative Study (Oxford University Press, 2010). The automobile industry in Japan has been used as an example. The Japanese car manufacturer giant (Toyota) started its successful and impressive, journey toward success by disassembling and copying imported cars, such as Chevrolet and Fiat. If the TRIPs had been concluded at that time (1960s) in the case Toyota, the activites carried out and participated in Toyota success would definitely will be faced by the barriers of TRIPs and might be brought to dispute. The author is of the opposite opinion.123-125. 165 Chang, above n 138, 82.

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History shows that the path to development, progress and social welfare in the NDCs was achievable without IP laws or with weak protection. Accordingly, the introduction of IP laws, especially according to the current international standards, does not necessarily promote the development of society as Islamic Shari’a requires.

Therefore, a study of IP and Islamic Shari’a has to treat claims of a positive relationship between the current IP system, maslaha mursala and Islamic Shari’a with great skepticism. This is because what promoted the development of NDCs was not the type of protection offered by the current IP system; rather it was lenient IP protection that was sensitive to their level of development. This might indicate a negative impact of the current system on the process of development as will be discussed below.

4.3.3 IP and the Essential Measures of Development

This section looks into the relationship between currently dominant IP systems and development. This is to demonstrate whether, according to certain measurements of development, the systems assist in actualising the social welfare of developing countries, which include all the Islamic countries.

The subject of IP and development could constitute a whole PhD thesis,166 and the aim of this section is not to turn the discussion into a detailed evaluation of the economics of IP. Rather, this section aims to investigate whether the current IP system operates — in practice — to promote the development of less affluent nations. This is being undertaken because we came to observe that development’s parameters could be a reasonable illustration for the implementation of maslaha mursala.167

What is of relevance to this section is the protection of human life (nafs), intellect (ʿaql) and wealth (mal), as these three objectives of Islamic Shari’a (one or more of which is required to be promoted by any new ruling under maslaha mursala) include the right to attain essential health care, access to educational resources and decent

166 Under the supervision of Professor Brian Fitzgerald and Anne Fitzgerald my colleague Rami Olwan wrote comprehensively on the relationship between IP and development from both theoretical as well as practical aspects. He asserted throughout his thesis until its conclusion that IP alone has no direct positive effect on the process of development and it has to be considered among other policy reforms, Rami Olwan, above n 2, 98. 167 See p 106.

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level of income.168 These three objectives come in line with the fundamentals of the modern concept of development which include, as Amartya Sen asserts,169 the right to have access to an efficient health care system, a competent educational system and the availability of, and access to, adequate sources of income.170

Here, I investigate how the current international IP system interacts with the main driving factors of development, namely health, education and income. Doing so will assist in understanding, more comprehensively, the relationship between IP and maslaha mursala and, eventually, the relationship between IP and Shari’a as a whole. If it is to be said that the current IP system fits into Islamic Shari’a, then the system has to contribute to development in general by positively affecting its driving factors.

4.3.3.1 IP and Public Health

According to the World Health Organisation’s (WHO) Fact Sheet on Infectious Diseases, tens of millions of people in developing countries are suffering from various kinds of infectious dangerous diseases for which pharmaceutical treatments or cures are available.171 The deadliest of these are:

 HIV/AIDs (WHO estimated the number of infected people in 2010 in Africa alone at (21,700,000-24,200,000).172

168 Al-Tahir B. Ashur, Maqasid al-Shari’a al-Islamiyya, above Ch 2 n 65, 302 and al-Būti, above Ch 2 n 60, 351. For the purpose of studying the impact of globalising IP on the development of poor countries, Professor Peter Drahos and Ruth Mayne, based on the contributions in the edited book, concentrate mainly on health, education and income as main development factors that are affected by IP. Peter Drahos and Ruth Mayne, Global Intellectual Property Rights: Knowledge, Access and Development (Oxfam, 2002) 3 169 Harvard University. 170 Amartya Sen, Development as Freedom (Anchor Books, 2000) 38-39. Amartya Sen argues in favour of new approach to development that perceive it as freedom, he states that ‘human freedom is both the main objective and the primary means of development’ at 53. This implies that having access to the what contributes to development is essential to achieve it. As we have seen health, education and income are the driving factors of development. James Cypher, and James Dietz, above n 4, 3. Life expectancy at birth, educational attainment, and the Standard of living measured by real per capita income has been used annually by the United Nation Development Programme to measure social welfare within and across nations. 171 World Health Organisation, Fact sheets: Infectious diseases (2013) available online at: . The factsheet contains 26 diseases ranging from African trypanosomiasis (sleeping sickness) to Yellow fever, and it is based on statistics on the number of infected people in the member states as well as the deaths therein. The statistics cover varies according to each disease in terms of the year but they are ranging from 2005 to 2010. World Health Organisation, Global Health Observatory Data Repository - WHO African Region, available online at: .

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 Tuberculosis (Sub-Saharan Africa carried the greatest proportion of new cases per population with over 270 cases per 100 000 population in 2010).173

 Malaria (81%, or 174 million cases, were in the African Region).174

Infectious diseases kill over 10 million people each year, more than 90% of whom are in the developing world.175

Those infected millions of people (who are still alive) in developing countries176 will not be productive and, thus, will be considered as an inefficient human capital to meet development needs. 177 The provision of pharmaceutical products for those people would assist them to alleviate their suffering. Some of these essential products are patented and protected with the threat of sanctions under the TRIPs Agreement.178

The TRIPs Agreement was the first international treaty to provide protection (supported by sanctions) for pharmaceutical products. 179 This protection is essentially designed to satisfy the needs of the pharmaceutical industry in the developed world without ‘adequately [addressing] the medical access needs of the world’s poor’.180

173 World Health Organisation, Tuberculosis Fact sheet (March 2012) available online at: . 174 World Health Organisation, World Malaria Report (2011) available online at: TRIPS, Pharmaceutical Patents and Access to Essential Medicines: Seattle, Doha and Beyond, 46. 176 Africa has been considered as a sample due to its severe conditions in terms of access to medicine; however, other parts of the world are also negatively affected. These mainly include developing Asian nations and Latin American countries. For more information please see World Health Organisation, Global Health Observatory Data Repository: . 177WHO, UNAIDS and UNICEF, Progress Report on HIV/AIDS Response (2011) WHO, the report notes that HIV/AIDS in Africa has resulted in ‘reversing decades of progress on key development indicators, such as infant mortality and life expectancy’ at 5. 178 For a list of the essential drugs needed in all over the world please see World Health Organisation, WHO Model List of Essential Medicines 17th list (March 2011), available online at: . A study published by WIPO seems to undermine the severity of the need for a complete access to essential medicine as it states ‘95 percent of the pharmaceutical products on the WHO’s Essential Drug List are not protected by patents.’ Kamil Idris, Hisamitsu Arai, the Intellectual Property-conscious Nation: Mapping the Path from Developing to Developed ( WIPO, 2006) at 46. It could be true that 95 percent of the Essential Drug List are without patent; however, the remaining 5 percent are. Accordingly, providing access to those drugs could save life for thousands if not millions of people in developing countries. 179 Article 27 Patentable Subject Matter. 180 Jamie. B. Heren, ‘TRIPS and Pharmaceutical Patents: the Pharmaceutical Industry vs. The World’ (2009-2010) Intell. Prop. L. Bull. 43

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UN-based organisations such as WHO, the United Nations Programme on HIV/AIDS (UNAIDS) 181 and The UN Sub Commission for the Protection and Promotion of Human Rights, 182 non-governmental organizations (NGOs) such as Médecins sans Frontières183 (MSF)184 and Oxfam185 along with experts from various fields including, health,186 economy187 and law188 have criticised the current TRIPs’s approach with regard to access to essential pharmaceuticals.

181 P. Boulet et al, ‘Pharmaceuticals and the WTO TRIPS Agreement’ (UNAIDS/WHO Document, 2000) 3, available online at . The joint document states that before TRIPS production of patented drugs was available, but after the TRIPS such production is a proper cause of action before the WTO-Dispute Settlement Panel. 182 Sub-Commission on Human Rights resolution 2000/7: Intellectual Property Rights and Human Rights, para 11, the resolution states that ‘actual or potential conflicts exist between the implementation of the TRIPS Agreement and ... access to patented pharmaceuticals’ available online at:. 183 Doctors without Borders. 184 MSF launched a campaign to ‘overcoming barriers to access’ to medicines and to ensure patents are not a barrier to access [to medicine]. For more information on this campaign please see: . 185 For a detailed account on Oxfam’s activities on the issue of IP and access to medicines please see: Ruth Mayne, ‘the Global Campaign on Patents and Access to Medicines: An Oxfam Perspective’ in Peter Drahos and Ruth Mayne, Global Intellectual Property Rights: Knowledge, Access and Development, (Oxfam, 2002). In this chapter Ruth Mayne highlights the extent of problem of the access to medicine from Oxfam perspective and how patents are affecting it. And what are the developed countries- along with big pharma’s responses, at 244. 186 Germán Velásquez, ‘The impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) over access to essential medicines’ (2006) Centrale Sanitaire Suisse Romande, 11; ‘The Dilemma of Intellectual Property Rights for Pharmaceuticals: The Tension between Ensuring Access of the Poor to Medicines and Committing to International Agreements’ Jillian Clare Cohen (2003) Developing World Bioethics, 32 and Fabienne Orsi et al, ‘Intellectual Property Rights, Anti-AIDS Policy and Generic Drugs. Lessons from the Brazilian Public Health Program’, 1, available online at: . 187 Jeffrey Sachs, ‘the Global Innovation Divide’ in Adam B. Jaffe, Josh Lerner and Scott Stern, Innovation Policy and the Economy (MIT Press, 2003) Sachs argues that ‘there is little doubt that the new IPR arrangements [TRIPS] can make it more difficult for consumers in the poorest countries to access ... essential medicines’. 140; Joseph Stiglitz, ‘Economic Foundations of Intellectual Property Rights’ (2007-2008) 57 Duke L.J. 1693 at 1694 Stiglitz asserts that ‘TRIPs attempted (successfully) to restrict access to generic medicines, putting these drugs out of the financial reach of most in the developing countries.’; Jadish Bhagawati, ‘From Seattle to Hong Kong: Are we Getting Anywhere?, University of Columbia, . Bhagawati observes that the ‘pharmaceutical industry were essentially creating multilateral legitimacy [he refers to TRIPs] for the use of trade sanctions ... Tough restrictions were put down on the manufacture of generic drugs and the poor-country access to them’; and Keith E. Maskus, ‘Incorporating a Globalized Intellectual Property Rights Regime into an Economic Development Strategy’ in Hamid Beladi and E. Kwan Choi Frontiers of Economics and Globalization (Emerald, 2007) 503. 188 Peter Drahos, 'Four Lessons for Developing Countries from the Trade Negotiations over Access to Medicines' (2007) Liverpool Law Review, 16; Peter K Yu, ‘Access to Medicines, BRICS Alliances, and Collective Action’ (2008) American Journal of Law and Medicine, 365. Professor Yu recognises the negative effects of the TRIPs and calls upon countries such Brazil, India, Russia, China and South Africa to form an alliance to alleviate those negative effects. 365. Another article for Peter K. Yu, ‘The Global Intellectual Property Order and Its Undetermined Future’ (2009) The WIPO Journal, Vol. 1, pp. 1-15, 1. In addition, one of the world’s leading intellectual property activists Youchai Benkler,

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Before TRIPs came into force, developing countries, with reasonable manufacturing capacity (India for instance),189 were able to produce patented drugs to meet their local needs. They were also able to supply Less Developing Countries (LCDs), often known to lack any manufacturing capacity, some of their requirements for those drugs at affordable prices. TRIPs introduced legal protection for pharmaceutical products as well as for the process of manufacturing. 190 This legal protection provided by TRIPs allowed the pharmaceutical industry to build a ‘wall of protection’ around original compounds,191 defined in economic terms as ‘monopoly’ on the pharmaceutical invention, which means that producing and exporting cheap generic versions is hampered because the patent holder could always find a way to object.192 The patent holder will then be able to sell the patented drug at the highest price the market can offer. This price is often out of reach to hundreds of millions in the developing world. So there is a great potential that many people could die as a result of this access crisis. One commentator notes that:

When patent-protected antiretroviral treatments were first introduced, the cost was over US$10,000 per patient per year, putting them out of reach of the vast majority of HIV patients in developing countries where over three billion people live on less than US$2 a day.193

If a developing country wants to produce a patented live-saving drug, it must wait 20 years.194 Acting outside the scope of the TRIPs could be considered as a ‘theft’195

along with other renowned legal practitioners and leading health care activists from Harvard had a debate in 2007 and recognised the current IP system to be a leading reason for the crises of access to medicine and praised an agreement by which Emory University would licence its research findings to be used by Gilead Sciences, and Royalty Pharma and considered the agreement as a model to be followed by other universities to put 'equitable access licensing' … into practice’. Chaifetz et al, ‘Closing the Access Gap for Health Innovations: an Open Licensing Proposal for Universities’ (2007) BioMed Central Ltd,1 Daniel J. Gervais, 'Intellectual Property, Trade & Development: The State of Play' (2005) 74 Fordham L. Rev 505, 513. 189 Bhaven. N. Sampat, ‘the Accumulation of Capabilities in Indian Pharmaceuticals and Software’ in Hiroyuki Odagiri et all, Intellectual Property Rights, Development and Catch-Up: an International comparative Study (Oxford University Press, 2010) 368. 190 Article 27 of the TRIPs states that ‘patents shall be available for any inventions, whether products or processes, in all fields of technology’ 191 Drahos above n 188 192 Germán Velásquez, above n 186, 21. The compulsory licensing provisions could be ineffective when the developing country wants to export to LCDs, this is because TRIPs requires the production under the compulsory licence to be for the domestic market. 193 Ibid, 15. 194 Drahos, above n 188, 16 and Germán Velásquez, above n 186,13. 195 Alexis Pellek, War on IP Theft, Pharmatech Talk (Oct. 17, 2008). .

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accompanied by the risk of being brought to the WTO-Dispute Settlement Panel for non-compliance with TRIPs, as was the case with South Africa 196 and Brazil.197

If the patent regime under TIRIPs is not the only factor hampering access to medicine, it could be one of great concern. Taking this into consideration, according to estimations from WHO, could save 10 million lives per year.198

The Doha Declaration (2001) came as a response to the concerns of the majority of the WTO members regarding access to medicine.199 It emphasized ‘that the TRIPs Agreement does not and should not prevent member governments from acting to protect public health’.200 As a result, the compulsory licensing scheme under the TRIPs has been broadened to allow more manufacturing of generic drugs by developing countries with manufacturing capacity and to allow their export to the least developed countries (LDCs).201 However, such ‘broadening’ would still be an incomplete solution, because pharmaceutical companies will in most cases find it

196 The dispute brought against the government of South Africa is known as Big Pharma. Versus South Africa. In early 1998, 39 drug companies and their representative body sued the government of South Africa over amendments made in 1997 to its Medicines Act (known as Medicines and Related Substances Control Amendment Act No. 90 of 1997), which aimed to make low cost medicines more readily available. The companies asserted that it was neither constitutional nor in compliance with the TRIPs Agreement. As a result of big international campaign led by NGOs, the plaintiffs had to withdraw their action. For more information please see: Ellen, Hoen et all, ‘Driving a decade of Change: HIV/AIDS, Patents and Access to Medicines for All’ (2011) Journal of the International AIDS Society, 3. 197 In February 2001, the United States took action against Brazil at the WTO Dispute Body (DSB) over Article 68 of the Brazilian intellectual property law which allows the Brazilian companies to manufacture generic drugs. The United States argued that the Brazilian law discriminated against United States owners of Brazilian patents and that it curtailed patent holders’ rights. The United States claimed that the Brazilian law violated Article 27.1 and Article 28.1 of TRIPS. Under the same pressure practiced by human right activists, the US in a joint statement with Brazil, On June 25, 2001, announced that it would withdraw the WTO panel against Brazil. Ellen F. M. ’t Hoen, ‘TRIPs, Pharmaceutical Patents and Access to Essential Medicines: Seattle, Doha and Beyond’ 44-46, published on the WHO Website, 2003: and Gavin Yamey ‘US Trade Action Threatens Brazilian Aids Programme’ (2001) British Medical Journal, Vol 322, No 7283, 38. 198 World Health Organization, Equitable Access to Essential Medicines: A Framework for Collective Action, (March 2004) 1, available online at: . 199 These concerns took violent form in Seattle. In 1999 the WTO assembled for trade negotiations in Seattle. Some 40,000 human right activists took into streets to voice their concerns about the expansion of the WTO and its reckless attitude towards the needs of poor countries. The criticism of the TRIPS restrictions on access to medicine was among the most important concerns of the demonstrators. Due to the strength of the protests the WTO gatering failed to achieve any of the aims of its Agenda.Wikpedia, World Trade Organization Ministerial Conference of 1999 protest activity, http://en.wikipedia.org/wiki/World_Trade_Organization_Ministerial_Conference_of_1999_protest_ac tivity>. 200 The Doha Declaration Explained, available online at: . 201 Jaime B. Herren, ’TRIPS and Pharmaceutical Patents: the Pharmaceutical Industry vs. TheWorld’ (2010) Intell. Prop. L. Bull. 43, 58.

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possible to debate the circumstances which led to resorting to the compulsory licensing.

The TRIPs standards were initially derived from the laws of developed countries which were articulated as a result of cumulative developmental process.202 They can by no means be considered suitable for developing countries, which have not yet gone through the same process. Professor Peter Drahos takes this observation into account and wonders:

Does it make sense to oblige both the US and Rwanda, which is a least-developed country member of the WTO, to enact a patent law that allowed for the patenting of pharmaceutical products? The US has the world’s largest pharmaceutical company (Pfizer), a sophisticated research pharmaceutical industry and a massive research infrastructure which includes 3676 scientists and engineers in R&D per million people. Rwanda does not have a research pharmaceutical industry and only 35 scientists and engineers in R&D per million people.203

The negative effects of the current IP system on public health do not seem to promote Islamic Shari’a’s objective in safeguarding nafs (protection of human life). On the contrary, the restrictions imposed by the current IP system, namely the TRIPs, seem to contradict that objective. Chapters 5 and 6 of this thesis discuss what Islamic Shari’a has to offer to alleviate the negative impacts of the current system. Before that, we need to investigate whether the impact of the current international IP system on access to educational materials is as negative as its impact on public health.

4.3.3.2 IP and Access to Educational Materials

Education is the cornerstone of development. It always has been so, and its importance is increasing in the age of the information economy, where the driving factor of prosperity and rapid change is knowledge-based innovation. As Hadad observes: ‘Education is a key to developing that knowledge and the sense of personal efficacy needed to adjust to rapid change.’204 As indicated above, Islamic Shari’a’s objective in safeguarding ʿaql (intellect) encompasses promoting education.

202 See p 125 et seq. 203 Drahos, Global Intellectual Property Rights: Knowledge, Access and Development, (Oxfam, 2002) 2. 204 Wadi D. Hadad et al, Education and Development: Evidence for New Priorities (World Bank, 1990) 1.

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Various international treaties, such as the Universal Declaration of Human Rights (Article 26), 205 the International Convention against Discrimination in Education (Article 1) 206 and the International Covenant on Economic, Social and Cultural Rights (Article 13)207 have recognised education to be a fundamental human right.208

Fundamental to the right to education is access to educational materials, namely textbooks and journal articles.209 One commentator sheds some light on the shortage of text books in developing countries, stating that:

Textbooks are a rare commodity in most developing countries. One book per student (in any subject) is the exception, not the rule, and the rule in most classrooms is, unfortunately, severe scarcity or the total absence of textbooks ... For the majority of the world's students, access to basic tools for learning is so limited as to constitute a major crisis.210

Most developing countries do not provide educational materials for students for free. So even if there are textbooks on the shelves, students will have to pay for them.211

How does the current international framework of IP, particularly the provisions relating to copyright in the Berne Convention, the TRIPs and the WIPO Copyright Treaty (WCT), interact with the right to education in developing countries? Does it recognize the need to ensure that children in Africa and poor Asian nations have

205 Universal Declaration of Human Rights, (10 December 1948). Available online at: . 206 International Convention against Discrimination in Education (adopted in 14 December 1960) Available online at: . 207 International Covenant on Economic, Social and Cultural Rights (adopted in 16 December 1966) Available online at: . 208 Alan Story et al observes that ‘[to] deny access to the means of education through the criminalisation of copying is tantamount to denying this right, and the rights and benefits that flow from it, to all peoples of the South. Alan Story et al, The Copy/South Dossier: Issues in the Economics, Politics, and Ideology of Copyright in the Global South (The Copy/South Research Group, May 2006) 74. 209 Ruth. L. Okidiji, ‘The International Copyright System: Limitations, Exceptions and Public Interest Considerations for Developing Countries’ (2006) International Centre for Trade and Sustainable Development (ICTSD), 32. 210 Pernille Akedaro, A Guide to Sustainable Book Provision, (1997) 16 cited in Shobhana Sosale, Introduction to the World Bank Educational Publishing in Glopal Perspective: Capacity Building and Trends 1, cited in Margaret Chon ‘Intellectual Property ‘from Below’ Copyright and Capability for Education’ (2007) 40 U.C. Davis L. Rev. 803, 822. 211 Ibid 24, in this regard, the Commission on Intellectual Property Rights appointed by the U. K Government observes that in fact, our consultations with stakeholders and reading of the evidence suggests that the issues are most serious in relation to access to educational materials where demand is not met by the local publishing industries or donor-financed programmes’ Report of the Commission on Intellectual Property Rights (CIPR Report), Integrating Intellectual Property Rights and Development Policy (2002) 100. Available online at: .

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adequate access to the materials desperately required for their education and self- determination?

Professor Sam Ricketson and Professor Jane Ginsburg in an authoritative treatise on the international copyright system,212 infer from the language and structure213 of that system the following: the international copyright system is essentially ‘concerned with the private interests of authors and with raising the level of protection that is accorded to them’.214 As for the interests of the developing countries, which are in vital need of access to educational materials, the system does not seem to be responsive enough.215

The problem, according to Ricketson and Ginsburg, is that the publishers and providers of the most needed educational materials are located in the developed world.216 Those publishers and providers have strong copyright protection on their materials, both in their own countries and under the international copyright system.217 This evidently causes problems for developing countries, which generally lack the financial resources to purchase those materials or to obtain licences to reproduce, translate or utilise them for their purposes.

Additionally, and on a practical level, the actual process of obtaining educational material through permissions (which may always be refused) may involve significant time delays ‘or even prove impossible’.218 The international copyright system makes the educational materials the property of the authors, and the authors are not obliged

212 Sam Ricketson and Jane Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and Beyond (Oxford University Press, 2005). It should be noted, and as has been highlighted in the first chapter of this thesis, that the Berne Convention is a master treaty of international copyright law, and accordingly, the interpretation provided above applies to the subsequent treaties most noteably, the TRIPs and the WIPO Internet Treaties. 213 Starting from its short preamble which states that ‘[the] countries of the Union, being equally animated by the desire to protect, in as effective and uniform a manner as possible, the rights of authors in their literary and artistic works’, and throughout its structure, the Berne Convention proves its approach which is private-interest based. With the exception of its appendix of 1971, the said convention does not warrant the developing countries any special provision in terms of access to knowledge as will be seen in this section. 214 Sam Ricketson and Jane Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and Beyond, (Oxford University Press, 2006 ) vol ii, 881. 215 Ibid,882. 216 United Nations Educational, Scientific and Cultural organisation (UNESCO), Sustainable Book Provision, available online at: . The trade in books tends to be one-sided and consists of the export of books from industrial to developing countries. This is especially the case where the major languages are concerned and, indeed, both English and French publishers depend on overseas trade for about half their sales. 217 Sam Ricketson and Jane Ginsburg, above n 214, 882. 218 Ibid.

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to treat users in developing countries in a favourable way, since ‘they are not in the business of providing free assistance’219 to those countries.

What if a citizen in a developing country tried to act outside the scope of the current international IP system and copy any of the educational materials needed for a school or university education? Such action obliges his country under its international commitments to seize ‘the infringing copies’ 220 or even sanction the doer with ‘imprisonment and/or monetary fines’.221

Organisations based in the developed world have not hesitated to use the mentioned ‘remedial measures’ to attack citizens in developing countries for the unauthorised use of educational materials produced by those organisations.222 For instance Alan Story reports that the American Association of Publishers (AAP) has advertised its success in ‘staging armed raids against ‘copy shops’ in developing countries where textbooks and other materials are reproduced’ these ‘raids’ took place in countries such as India, Malaysia, Pakistan, the Philippines and Brazil. The AAP gives as an example of their success a case where the owner of a Photocopy Centre was arrested in Mumbai on 5 April 20024 and authorities seized 500 copies of medical books from the establishment.223

Despite the fact that the current international IP system tries to recognise the interests of the users of the copyright educational materials by granting exceptions to, and limitations on, the strong exclusive rights of authors (for instance art 10 of the Berne Convention), 224 these exceptions and limitations have not provided developing countries with sufficient access to the copyright materials they need.

219 Ibid. 220 Art 16 of the Berne Convention. 221 Art 61 of the TRIPS Agreement. 222 Alan Story et al, The Copy/South Dossier, above n 208, 73. 223 Ibid. Professor Alan Story et al, highlight some of the potential consequence that might result from the restrictive access to educational material, they state that: Lack of access to educational materials places a block on [developing] countries’ ability to educate and train their populations, with the consequence of blighting the life chances of millions. Without medical texts it is impossible to train doctors and nurses who can provide health care in parts of the world where disease and ill-health often reach epidemic proportions; without access to scientific journals and books, they cannot train a generation of engineers who could design and build networks of clean water, sanitation, safe housing, affordable and sustainable transportation, and so on. 73-74. 224 This article is titled ‘Illustrations for teaching’. It allows member states, developing and developed alike, to enact exceptions from the authors ‘rights of publications, broadcasts or sound or visual recordings for the purpose of teaching’. However, it uses vague terms such as ‘the extent justified by the purpose’ and ‘compatible with fair practice’. Who determine what would be a justified purpose or fair practice?

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As Ruth Okediji notes, these exceptions and limitations are not ‘effective and efficient’; they are ‘broad and vague’. Accordingly, when it comes to access to educational material, for instance, the Berne Convention ‘applies primarily to the use of copyright works by instructors and teachers. Thus, these exception and limitation are of very limited value for supplying the local market with sufficient numbers of affordable copies for students and the general public.’225

Additionally, the so-called Three Step Test (3ST)226 imposes a structural barrier against the introduction of exceptions and limitations for the purpose of education or any other purpose in the copyright users’ interests.227 It simply ‘sets limits to the limitations on the authors’ rights’.228 The following provides us with an idea as to how the 3ST affects any potential access to the needed educational materials.

According to the international copyright system, the right to reproduce the copyright work is an exclusive right of the copyright holder.229 A country that needs to enact an exception that involves restricting that right has to expose the proposed exception to the 3ST. This stipulates that any exception may only be invoked in ‘certain special cases’, provided that these cases ‘do not conflict with a normal exploitation of a

225 Ruth Okediji, ‘International Copyright’, above n 209. 226 Art 9 of the Berne Convention and art 13 of the TRIPs Agreement. 227 TST, as a measurement for the fairness of limitations and exceptions to the exclusive rights of copyright holder, has drawn a significant attention after the WTO Panel issued a report regarding a dispute between USA and EC in 2000. Notwithstanding the fact that this was the only case regarding copyright pleaded before WTO Panel, it bears considerable importance as it was the first practical application of the TST. The cause of this dispute was that in 1998 the US amended Section 110 (5) of its Copyright Act allowing restaurants and bars of certain square footage or with certain devices to play performances and displays for dramatic and non-dramatic works. The exceptions in dispute are known as: (a) the home-style exception (because it involves the usage of apparatus of a kind that commonly used in private homes) and (b) the business exception (because it is directed to businesses such as restaurants and bars regarding non-dramatic works). Summary of the WTO Panel Report on United States — Section 110 (5) of US Copyright Act. Available online at: , at 21/05/2012. The dispute clearly reveals how far copyright owners could go in protecting their works, if they were able to argue against the usage of musical piece in a small restaurant, they will argue also against copying books for educational use, if such use will deprive them from a portion of profit they might get. Professor Margaret Chon points out to harmful effects of the 3ST she states that ‘if development analysis is relevant even for richer countries’ 'such as the US, then it is pertinent to whether longstanding American doctrines such as copyright fair use can survive TRIPs Article 13's three-step test’, Margaret Chon, ‘Intellectual Property and the Development Divide’ (2005-2006) 27 Cardozo L. Rev. 2821, 2835. 228 Martin Senftleben, Copyright, Limitations and the Three-Step Test: An Analysis of the Three-Step Test in International and EC Copyright Law (Kluwer Law International 2004) 5. 229 For instance art 9/1 of the Berne Convention states that ‘authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form’.

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work’,230 and it (the exception) should not ‘unreasonably prejudice the legitimate interests’ of the copyright holder.231 Let us imagine, for instance, that developing country X wants to allow the copying of medical books in the campuses of its universities. Such an exception would certainly draw the attention of the publishing agencies that might have a market share within those campuses. The first line of defence which could be used by these agencies is the 3ST. They could always argue that allowing the mass-copying of their books would conflict with the normal exploitation of their publications as it will deprive them from additional source of revenue and, as a result, prejudice their legitimate interest in profiting from their work.

After gaining their independence in the 1950s and 1960s, the majority of developing countries were not satisfied with the international IP system. Major developing countries such as India and Brazil led international efforts to demand a development- oriented international IP system.232 The 1967 Stockholm Revision Conference was a landmark in the progress of developing countries towards the recognition of their needs in the international copyright system.233 The result, four years later, was the inclusion in the Paris Act of 1971234 of an Appendix entitled ‘Special Provisions

230 Any exception or limitation to be introduced in a national law must not conflict with normal exploitation of the work. Defining what constitutes ‘a normal exploitation’ is potentially problematic task’. Robin Wright, ‘The Three-Step Test and the Wider Public Interest: Toward a More inclusive Interpretation’ (2009) Vol. 12 The Journal of World Intellectual Property 612. Consequently, commentators have adopted different views on what is to be considered as ‘a normal exploitation’ that exceptions and limitations must not conflict with. 614. Sam Ricketson has recommended adapting the following interpretation: an exception or limitation would not conflict with a normal exploitation of works if it is limited to a scope or extent that does not enter into economic competition in the present or the future with non-exempted work for the author. Sam Ricketson, the Three-Step Test, deemed qualities, libraries and closed Exceptions (Center for Copyright Studies, 2002) 33. Any reproduction on commercial scale could be considered as a velation of this requirement. 231 Jamie Wodetzki, ‘What about the Copyright User? Implications of the new WIPO Treaties’ in David Saunders and Brad Sherman, From Berne to Geneva: Recent Developments in International Copyright and Neighbouring Rights (Australian Key Centre for Cultural and Media Policy, 1997) 108. Professor Daniel Gervais maintains that the third step is perhaps the most difficult one to interpret. Daniel Gervais, The TRIPs Agreement: Drafting History and Analysis (Sweet and Maxwell, 3rd ed, 2008), 240. It is true to a large extent as the words ‘legitimate interests’ are not easy to define. One might ask, does the word legitimate mean permissible by law or it includes also what is supported by social norms and public policies?. It is beyond the scope of this paper to investigate in detail the different interpretations of this step. However, the interpretation adapted by some scholars and supported by WTO panel is that the legitimate interests are those which supported by the law. Martin Senftleben above n 228. 232 Rami Olwan, above n 2, 64. China is also a major player that influences the international relations of IP in the last two decades. 233 Sam Ricketson, above n 94,117. 234 Ibid 632.

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Regarding Developing Countries’. 235 What are the main components of that Appendix and how has it affected the issue of access to educational materials in developing countries?

The Appendix is considered to be ‘the dominant and only explicit access regime currently existing in the international copyright relations.’236 It establishes a system of compulsory licenses237 which allows a developing country, after notifying the Director General of WIPO, 238 to set limitations on the translation 239 and reproduction240 rights of the copyright holder.

Theoretically, for instance, Article II of the Appendix allows publishers in a developing country to step into the copyright holder’s 241 shoes and translate her or his work without asking for permission; provided that a) three years have elapsed from the first publication and b) the copyright holder has not translated her work into the language in question.242

Professor Ruth Okediji notes that before three years have elapsed, the only channel through which developing countries can access the work the copyright holder.243 Accordingly, for literary works used for education, especially those related to technical fields such as computer engineering, the need to wait three years means that some works will be outdated and irrelevant to the ever-developing scientific context.244

To make the access problem more complicated, the Appendix adds a further six months grace period following the three years.245 As a result even if a publisher in a developing country waited for three years and spent effort and money in preparing

235 Art 21 of the Berne Convention. 236 Ruth. L. Okidiji, ‘Sustainable Access to Copyright Digital Information Works in Developing Countries’ in Keith E. Maskus and Jerome H. Reichman, International Public Goods and Transfer of Technology Under a Globalized Intellectual Property Regime (Cambridge University Press, 2005) 147. 237 Art I of the Appendix. 238 Art I of the Appendix. 239 Art II of the Appendix. 240 Art III of the Appendix. 241 Copyright holder of developed country. 242 Art II (2) (a) of the Appendix. 243 Okidiji, above n 236, 163. 244 Ibid. 245 Art II (4) (a) of the Appendix.

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for the translation, the copyright owner still has the right to translate his work. In that case, according to the Appendix, the sought license will not be issued.246

It should also be noted that the only channel for resorting to the compulsory licensing scheme under the Berne Appendix — should the complex legal requirements have been met — is the publisher in the developing country which declared its intent to avail itself of the Appendix. Publishers in the developed world cannot make use of such licences to supply developing countries with any needed materials. Publishers in the developing countries are ‘the [one] (and only) channel for the reprographic copying and the production of materials and their delivery’247 for developing countries.

Additionally, and perhaps more ironically, the compensated (fee-based) compulsory licences conferred by the Appendix may only be issued for teaching, scholarship and research purposes. 248 In developed countries, such as the United States, uncompensated access for these purposes is available, especially if undertaken in non-profit context.249 To impose a compensated access mechanism on developing countries for these purposes ‘is unjustifiably burdensome’.250

Paradoxically, developed countries have more discretion to set limits on the reproduction rights of the copyright owner, while developing countries, which have political, economic and cultural priorities for more robust access rights, thanks to the Appendix could use such discretion only for certain purposes.251

Alan Story notes that the Appendix failed to consider a very essential point when it comes to access to educational materials, that is, giving teachers, who may want to independently access and distribute materials for the use of their students, the right to use ‘a photocopier or low-priced duplicator or offset press’.252

246 Ruth. L. Okidiji, Sustainable Access to Copyright Digital Information Works in Developing Countries, above n 236 164. 247 Alan Story et el. n 208, 140. 248 Art II (5) of the Appendix states ‘Any license under this Article shall be granted only for the purpose of teaching, scholarship or research’. 249 Ruth. L. Okidiji, Sustainable Access to Copyright Digital Information Works in Developing Countries. above n 236, 164. 250 Ibid. 251 Ibid. 252 Alan Story et el, above n 208,140.

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In an overall assessment of the Berne Appendix, Ricketson and Ginsburg observe that:

It is hard to point to any obvious benefit [that has] flowed directly to developing countries from the adoption of the Appendix.253

Accordingly, as Professor Margaret Chon asserts, the Berne Appendix must be revised ‘to include more expansive mechanisms for compulsory licensing for education, libraries, translation and other activities directed at the needs of developing countries’.254

4.3.3.3 Digital Learning and the International IP System

The emergence of digital technology has provided a unique platform for knowledge acquisition. The main features of the learning process are facilitated by such technology. It made it easy to create educational content, access it, remix it and most importantly distribute it. 255 Computation devices, DVDs and broadband facilities have endowed us with an ecology in which we are able to learn in our houses, access journal articles in different parts of the world, write, mark and store our work or get visual insight into a phenomenon or historical event. How has the international IP (particularly the copyright) system interfered with this promising technology?

On 20 December 1996, WIPO hosted a diplomatic conference which aimed ‘to respond to challenges that global digital networks pose for intellectual property law.’ 256 As had been the case 112 years earlier, 257 the influential parties in the negotiations were successful in introducing provisions that secured increased control for copyright holders and imposed increased liability on copyright users.258 On the

253 Sam Ricketson and Jane Ginsburg, above n 94, 957. 254 Margaret Chon, ‘Intellectual Property and Development Divide’, 27 Cardozo L. Rev. 2821 2005-2006, 2908. 255 William W. Fisher & William McGeveran, ‘The Digital Learning Challenge: Obstacles to Educational Uses of Copyright Material in the Digital Age’ (2006) The Berkman Center for Internet & Society at Harvard University, 9. 256 Pamela Samuelson, ‘The US. Digital Agenda at WIPO’ (1996-1997) 37 Va. J. Int'l L. 369, 370. 257 In the Berne Convention. 258 In this context, Professor Pamela Samuelson notes that ‘Clinton administration officials sought approval in Geneva for international norms that would have (1) granted copyright owners an exclusive right to control virtually all temporary reproductions of protected works in the random access memory of computers; (2) treated digital transmissions of protected works as distributions of copies to the public; (3) curtailed the power of states to adopt exceptions and limitations on the exclusive rights of copyright owners, including fair use and first sale privileges; (4) enabled copyright owners to challenge the manufacture and sale of technologies or services capable of circumventing

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same day, the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT) were adopted. Both included provisions known as Digital Rights Management (DRM) or Technological Protection Measures (TPM).259

DRM comprises systems incorporated into digital content by various means such as encryption or watermarking to prevent users from accessing or using the content in a manner that is not permitted by the copyright owner.260 This includes the case of some scientific databases where access is denied for those who are not subscribers and cases where users are not allowed to copy texts from the content.

WCT and WPPT provide copyright protection ‘against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights’.261 As a result, any manipulation made by content users in order to access or use copyright content protected under this provision is deemed illegal and will allow the copyright holder to sue the circumventer or even prosecute him or her under criminal law. Professor Pamela Samuelson suggests that those treaties were mainly influenced by the US Digital Agenda, which was promoted in the conference that led to their adoption in Geneva.262

Since the general framework of the Treaties ‘is compatible with the traditional principles of the US copyright law’,263 the detailed assessment made by Professor William W. Fisher and William McGeveran on the impact of the principles of US Copyright Law on digital learning is relevant to the international context.264

Fisher and McGeveran identified two main obstacles to digital learning:

 inefficient provisions in copyright law relating to educational use, the structure of the copyright exceptions and practical difficulties regarding the licensing of educational content;265 and

technological protection for copyright works.’ Pamela Samuelson, above n 256 372- 373. A quick look on the WIPO Internet Treaties reveals that the U. S Digital Agenda is almost fully reflected within the provisions of both treaties. 259 Art 11-12 of WCT, and art 18-19 of WPPT 260 William W. Fisher & William McGeveran, above n 255, 18. 261 Art 11of WCT. 262 Pamela Samuelson, above n 256, 437. 263 Ibid 370. 264 William W. Fisher and William McGeveran, above n 255, 2. The Fisher and McGeveran analysis is based on research, interviews, two participatory workshops with experts in the field of IP and technology and lessons drawn from four case studies. 265 Compare to the above mentioned criticism of the Berne Convention.

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 extensive adoption of ‘digital rights management’ technology to lock up content.266

With regard to the latter, Fisher and McGeveran point out that DRM has become a tool to add extra copyright protection in favour of the copyright holders. It allows them to lock up digital content, preventing educators from obtaining access to the materials. Even educators are increasingly using DRM and thus imposing restrictions on other educational users. In April 2012, Harvard University declared that copyright holders who use DRM made the ‘scholarly communication environment fiscally unsustainable and academically restrictive’.267 DRM is increasingly used by right holders to set dangerous boundaries such as ‘no copying allowed for any purpose’.268 Moreover, DRM systems make it possible for rightsholders ‘to engage in price discrimination by offering differential access to works at a range of costs’269

By the introduction of prohibitions on circumvention of DRM applied to copyright materials, the international copyright system added an extra burden to the problem of access to education in developing countries, as these DRM is deployed by copyright owners to obstruct access to digital learning by locking volumes of valuable educational materials.270

In summary, the current global IP system was articulated and evolved in the developed world. It reflects the ideology underpinning the political and economic systems of developed countries. In its current shape, the IP system reflects a top- down approach towards regulating the production and dissemination of intellectual goods. This approach, consistently, fails to actualise a satisfactory level of global

266 William W. Fisher and William McGeveran, above n 255, 2, my story tells how a student from developing country could be negatively affected by DRM. During my candidature to the Master degree in Tripoli University in Libya, I needed access to certain scientific journals, such as HeinOnline.com, those journals use DRM to prevent access and use of their material. QUT/Australia provided me with access to the majority of those journals. From my experience, I testify that having access to those journals enabled me to acquire and absorb knowledge in a way that I have not experienced in Libya with the shortage of the educational material. Unlike me, millions of students in developing countries do not have the chance to get access to that restricted materials and accordingly, would lose the chance to benefit from the huge stock of knowledge contained in the scientific databases. 267 Harvard University, the Faculty Advisory Council, Faculty Advisory Council Memorandum on Journal Pricing (April 17, 2012) available online: <.http://isites.harvard.edu/icb/icb.do?keyword=k77982&tabgroupid=icb.tabgroup143448>. 268 William W. Fisher & William McGeveran, above n 255, 66. 269 Ibid. 270 Ibid 81.

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social welfare for developing countries271 especially with respect to basic human needs such as education.272 On that basis, Alan Story, commenting on the issue of access to education, maintains that:

Since its emergence 126 years ago, the objective of the current international copyright system was not, nor it is nowadays, to ensure that children in developing countries have access to text books or that visually impaired children become literate by being able to access reading materials or so that knowledge can be shared among the world’s people or establishing good libraries in the universities of the developing world ‘or any of hundreds of other socially-valuable goals.273

Professor Margaret Chon calls for the existing top-down approach to be abandoned and for the adoption of an ‘IP from below’ which perceives IP from the needs of users, especially in developing countries, for access to intellectual goods for basic human development. 274 She explains it ‘as a bottom-up approach to innovation capacity-building’275 which should link the regulation of IP to distributive justice in order to assist the developing countries to bear the disproportionate cost of the current international IP system.276 The fifth chapter of this thesis will reflect on this approach.

Providing sufficient access to educational material can be considered as part of Islamic Shari’a’s objective to safeguard ʿaql (intellect). It is through access to educational material that an individual promotes their intellect and actualises self- development. Therefore, the top down approach of the current IP system seems to run afoul of Islamic Shari’a’s objective to safeguard ʿaql.

271 With regard to access to educational material, the CIPR Report expresses concern regarding the top-down approach of the current international IP system; it states that ‘evidence shows that weak levels of copyright enforcement have had a major impact on diffusion of knowledge and knowledge- based products ... throughout the developing world. Indeed, it is arguably the case that many poor people in developing countries have only been able to access certain copyright works through using unauthorised copies available at a fraction of the price of the genuine original product. We are therefore concerned that an unintended impact of stronger protection and enforcement of international copyright rules as required, inter alia, by TRIPs will be simply to reduce access to knowledge products in developing countries, with damaging consequences for poor people.’ CIPR Report, above n 211,101. 272 Margaret Chon, ‘Intellectual Property ‘from Below’, above n 254, 805. 273 Alan Story, ‘Balanced’ Copyright: Not A Magic Solving Word’ (27 February 2012) Intellectual Property Watch, available online at: . 274 Margaret Chon, ‘Intellectual Property ‘from Below’: Copyright and Capability for Education’, above n 254, 813. 275 Ibid. 276 Ibid 816.

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4.3.3.4 IP and Economic Growth

Economic Growth refers to the increase in a country’s productive capacity as measured by gross domestic product (GDP) per capita.277 Countries that have high rates of economic growth tend to offer high levels of living standards in terms of education, health nutrition and the welfare of their inhabitants.

The term economic growth will be used here to denote the term mal (wealth) the protection of which is considered one of the higher objectives of Islamic Shari’a. In this section, I will investigate how IP affects growth.

Various studies have investigated the impact of IP on several factors that are believed to contribute to economic growth 278 such as foreign direct investment (FDI)279 and technology transfer.280 Professor Carlos Correa studied the impact of the TRIPs Agreement (the main instrument of the international IP system, which is

277 Business Dictionary, Economic Growth, . 278 E. Borensztein, J. De Gregorio and J-W. Lee, ‘How does foreign direct investment affect economic growth’(1998) Journal of International Economics 45, 115. This article provides an economic insight on how FDI and technology transfer contributes to raising the levels of economic growth. 279 Amy Jocelyn Glass and Kamal Saggi, ‘Intellectual property rights and foreign direct investment’ (2002) Journal of International Economics 56, 408. The authors note that the stronger IPR protection in the South makes multinationals no more secure from imitation which would mean that it should not have practical effect on increasing the rate of FDI; see also Keith Maskus, ‘The Role of Intellectual Property Rights in Encouraging. Foreign Direct Investment and Technology Transfer’ (1998) Duke Journal of Comparative & International Law, 152, Professor Maskus concludes that IPRs would play role in FDI only if considered, inter alia, ‘market liberalisation and deregulation, technology development policies, and competition regimes’. In the same article Maskus observes that: ‘[It] must be emphasized that strong IPRs alone are insufficient for generating strong incentives for firms to invest in a country. If that were the case, recent FDI flows to developing economies would have gone largely to sub-Saharan Africa and Eastern Europe. In contrast, China, Brazil, and other highgrowth, large-market developing economies with weak protection would not have attracted nearly as much FDI if investment were heavily dependent solely on IPRs.’ 280 For instance see Lee Branstetter, Raymond Fisman and C. Fritz Foley, ‘Do Stronger Intellectual Property Rights Increase International Technology Transfer?: Empirical Evidence from US. Firm-Level Data’ (2006) The Quarterly Journal of Economics, 322; Suerie Moon ‘Meaningful Technology Transfer tovthe LDCs: A Proposal for a Monitoring Mechanism for TRIPS Article 66.2’ (2011) International Centre for Trade and Sustainable Development, 12 and Carlos. M. Correa, ‘Can TRIPS Agreement foster technology transfer to Developing Countries?’ in Maskus above n 279, 254. Correa notes that from the outset, the TRIPs was not designed to encourage the Transfer of technology, and therefore as Moon notes has not been successful in helping developing country to receive mush of technology from the developed world. Additional, and from economic perspective, Park and Lippoldt (2008) have carried out an empirical study on the potential role that IP might play on the transfer of technology to developing countries, they concluded that IP ‘do not operate in a vacuum. There are complementary factors that help facilitate technology transfer, such as the quality of infrastructure, government policies and regulations, and market structure, among others’ Park, W. G. and D. C. Lippoldt, ‘Technology Transfer and the Economic Implications of the Strengthening of Intellectual Property Rights in Developing Countries’ (OECD Trade Policy Working Papers, 2008) 29.

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supposed to enhance FDI and technology transfer)281 with regard to both of these two factors. He concludes that developing countries would not gain greater FDI nor technology transfer if they raised their IP protection to levels compatible with TRIPs.282

In terms of the relationship between IP and economic growth in general, economists such as Braga and Willmore (1991), Rivera, Batiz and Romer; Gould, and Gruben (1996);283 Park and Ginarte (1997)284 and Patricia Higino (2005)285 have employed empirical studies that included both developed and developing counties. Despite the different analystic methods used by these researchers, they all came to the conclusion that strong IP protection might positively affect the growth rates in the developed countries ‘but not for those of less developed economies’286

Almeida and Fernandes, in a study in 2008 that included 43 developing countries from Africa, Asia and Latin America and surveyed 17,667 firms across a wide range of manufacturing industries,287 found that the driving factor behind innovation and its accompanying economic growth does not rest in the protection of IP. It is fundamentally linked to policies that promote liberalisation of the trade regimes, enhance partnerships with foreign firms through joint ventures and the level of collective absorptive infrastructure of the local firms.288

In a 2012 study, Dāron Acemoglu and Ufuk Akcigit found that the impact of IP on economic growth is state-dependent.289 States with high technological capacity might

281 See art 66/2 of the TRIPs Agreement. 282 Carlos M. Correa, Intellectual Property Rights, the WTO and Developing Countries: The TRIPs Agreement and Policy Option (Zed Book, 2000) 30 and 36. 283 David M. Gould, William C. Gruben, ‘The role of intellectual property rights in economic growth’ (1996) Journal of Development Economics, 324. Gould and Gruben have refered to the studies mentioned above to stress that the link between IP and economic growth is only significant in developed countries (they termed it open economies). 284 Park and Juan Ginarte, ‘Intellectual Property Rights And Economic Growth’(1997) Contemporary Economic Policy, 60. 285 Patricia Higino Schneider, ‘International trade, economic growth and intellectual property rights: A panel data study of developed and developing countries’ (2006) Journal of Development Economics 78, 539. 286 Park and Juan Ginarte, above n 284, 60. Carlos Correa refers to similar empirical studies that have been conducted between 1988 and 1995. These studies reach similar conclusion as the ones mentioned above. Carlos Correa, Intellectual Property Rights, the WTO and Developing Countries: The TRIPs Agreement and Policy Option, above n 282 at 25. 287 Rita Almeida and Ana Margarida Fernandes, ‘Openness and Technological Innovations in Developing Countries: Evidence from Firm-Level Surveys’ (2008) The Journal of development studies, 707. 288 Ibid 723. 289 Daron Acemoglu and Ufuk Akcigit, ‘Intellectual Property Rights Policy, Competition and

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experience increase in ‘the growth rate of the economy from 1.86% to 2.04%’.290 In contrast, uniform protectionist IP ‘policy reduces both welfare and growth’291 for developing countries. These findings reaffirm results from the 1990s as mentioned above, which implies that the introduction of the TRIPs had no beneficial impact on the status of global welfare. On the contrary, and given its ‘one size fits all’ approach, it is expected to be associated with negative effects on the economic growth of developing countries. This, in turn, largely contradicts assumptions advocated by some of the major stakeholders in the current IP system who insist that the introduction of a strong IP system, compliant with the TRIPs, will enhance the economic growth for both developed and developing countries alike.292

Additionally, the report of the Commission on Intellectual Property Rights (CIPR) refers to other statistical studies supporting the assumption that the potential relevance of IP to economic growth is state-dependent. These studies draw a link between the strength of IP protection, and per capita income as a determinant of economic growth. It found that the protection of IP would contribute to economic growth in countries where per capita income is above US$8,000.293 However, other studies put the figure at US$3,400.294 According to the World Bank statistics of 2010, in the overwhelming majority of developing counties per capita income is below these thresholds, irrespective of whether the higher or lower figure is used.295

The leading economist Keith Maskus admits that determining the relationship between IPRs in general and economic growth is complex. Even those studies that found a positive correlation between IP and economic growth are ‘fragmented and somewhat contradictory... because many of the concepts involved are not readily measured’.296

Innovation’(2012) Journal of the European Economic Association, 3. 290 Ibid, 6 and 39. 291 Ibid. 292 International Chamber of Commerce (ICC), Intellectual Property: Powerhouse for Innovation and Economic Growth, 5, available online at: . 293 CIPR, above n 211,47. 294 This study was carried out by Thomson and Rushing in 1996. Cited in Rami Olwan, above n 2, 127. 295 World Bank, World Development Indicators: GDP per capita (current US$), available online at: . 296 Keith E. Maskus, Intellectual Property Rights and Economics Development, above n 279, 1.

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Looking at the TRIPs, Professor Maskus submits that ‘it is impossible to claim confidently that the new regime will raise growth and improve economic development processes’. This is because other elements such as ‘macroeconomic stability, market openness, policies for improving the economy’s technological infrastructure, and the acquisition of human capital’ could be more significant determinants for economic growth than IPRs. 297 Furthermore, Professor Maskus points to certain consequences of the introduction of the TRIPs which could have adverse effects on the economic growth of developing countries, and especially LDCs, in the form of ‘net welfare losses’.298 These consequences include:

1. Considerable increases in the prices of goods protected by IP. For instance, it was estimated after introducing the TRIPs that the prices of patentable drugs in India would increase by an average of 50% as compared to generic drugs. It was observed also that after granting copyright protection to software programs, a substantial increase in prices has been recorded.299

2. The restrictive protection of IP will ‘result in diminished access to technological information’ which will in turn raise imitation costs. This, in turn, ‘will place considerable pressures on imitative enterprises in developing economies’ which might slow down the innovation wheel and the associated economic growth.300

3. Introducing and enforcing IP systems in developing countries comes with high administrative costs301 that could be burdensome for these countries. From an economic perspective, the costs associated with administering an IP

297 Ibid. 298 Ibid 14. 299 Ibid 16. With regards to software, Professor Maskus reports that ‘in December 1997 it was possible in Hong Kong to purchase a pirated copy of Microsoft Office 97 for approximately $6, while the retail price for a legitimate copy was around $1,500. In the summer of 1998 the same product sold for approximately $1,000 in Beijing. 300 Ibid. 301 World Bank, Global Economic Prospects and the Developing Countries, (The World Bank, 2002), available online at: ‘upgrading offices for registering and examining patents and trademarks, and for accepting deposits of plant materials; training examiners, judges, and lawyers; improving courts to manage intellectual property litigation; and training customs officers and undertaking border and domestic enforcement actions’136.

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system ‘would divert scarce professional and technical resources ... out of other productive activities’302such as health and education.303

4. Developing countries that have upgraded their laws to levels required by the TRIPs will have to pay huge rent transfers to IP owners headquartered in developed countries (Maskus estimates that the US will gain extra rent inflow of $5.8 billion and Germany $997 million, while Brazil alone will experience a net outward transfer of around $ 1.2 billion).304 Meanwhile, firms in the developed countries do not pay any comparable remuneration for exploiting the intellectual heritage of developing countries’ communities. One commentator cynically notes that: while the ‘dance lambada305 flows out of developing countries unprotected by intellectual property rights … the movie Lambada flows in protected by intellectual property laws, which in turn are backed by the threat of trade sanctions’.306 Such imbalance adds more doubts with regards to any positive correlation between the current international IP system and economic growth.

In summary, taking into account the statistical evidence and the historical experience of NDCs, the IPR protection required by the current international system cannot be definitively regarded as a driving factor for economic growth. Rather, it is likely to be a result of such growth. We noted that the developed countries of today managed their patent and copyright protection in a way that would be condemned if judged by current standards, but was necessary for their stages of development. Developing countries should have the same right today.

In this vein, Cambridge economist Ha Chang, who studied the historical contexts of the policies, including IP, used by NDCs during their stages of development,

302 Keith E. Maskus, Intellectual Property Rights and Economics Development, above n 279, 18. 303 Rami Olwan, above n 2, 109. 304 Maskus, above n 279, 17. It shoud be noted that these statistics were prepared in 2000; however, such note does not undermine its relevance to the current time as nothing essential has been changed in the TRIPs Agreement. 305 Wikipedia, Traditional Latin American dance Lambada . 306 James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information, (Harvard University Press, 1996), 125. Cited in Joost Smiers, Creative Improper Property: Copyright and the Non-Western World in Fiona Macmillan, New Directions in Copyright Law (Edward Elgar, 2005) Vol I. In the same context, the highly acclaimed thinker, Noam Chomsky refers to estimations made by The US International Trade Commission in 1993 before concluding the TRIPs that the gains from the developing countries’s market will be around US$61 billion. Noam Chomsky, Notes of NAFTA: ‘The Masters of Man’ (March, 1993) available online at: .

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concludes that ‘[most] of the institutions that are currently recommended to developing countries…were in fact the results, rather than the causes of economic [growth]’.307 He asserts that if the current international standards of IP are imposed, they will ‘[hurt] the developing countries by imposing on them … institutions that they neither need nor can afford’.308

As is the case with public health and access to educational materials, it seems that the current predominant IP system is negatively linked to economic growth, or at best, there is no evidence of any positive effect on economic growth in developing nations. Accordingly, it is hard to argue that it promotes Islamic Shari’a’s objective in safeguarding mal.

4.3.3.5 Concluding Remarks on IP, Development and Islamic Shari’a

The implementation of maslaha mursala to adopt the current IP systems calls for an examination of IP’s sensitivity to development through the promotion of its factors, namely, health, education and economic growth. These factors are, simultaneously, at the heart of Islamic Shari’a’s objectives for the process of law making. If the findings discussed above inform us that current IP systems do not promote these objectives, it can be argued that they are insensitive to the public interest as required for the implementation of maslaha mursala and, therefore, may not be compatible with Islamic Shari’a.

It is not sufficient to establish the incompatibility of the current predominant IP system with Islamic Shari’a. It is imperative to explore the way in which ownership over ideas can be regulated from an Islamic perspective. This will be the subject of the next chapter.

4.5. Conclusion

The adoption of IP within Islamic Shari'a requires more than establishing the compatibility of notions on ownership over ideas with Islamic Shari'a's principles. In addition, the research must develop a practical dimension to discover how the

307 Chang, above n 138, 129. 308 Ibid 135.

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sources and objectives of Islamic Shari'a interact with the predominant applications of IP as contained in its international framework.

In this chapter it was demonstrated that the current international framework of IP does not consider local concepts of ownership other than that of Western nations and that the current system developed with little or no consideration of the interests of developing countries. We established that the public interest of NDCs was achieved without the kind of IP protections found in the current system. These findings support the claim that the current system does not consider the public interest as required to adopt the current IP system into Islamic Shari'a.

This research has drawn a link between the modern concept of development, the objectives of Islamic Shari'a and maslaha mursala. It was concluded, based on various studies, that the current system of IP does not safeguard the public interest as required to implement maslaha mursala because it does not serve Shari'a's objectives of promoting public health, education and economic growth.

By evaluating the current IP system from an Islamic perspective this chapter sought to determine the negative aspects therein. This will assist in integrating the theoretical concept of IP into Islamic Shari'a and lead to a proposal of mechanisms by which an optimal IP system can be designed. This will be the subject of the next chapter.

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Chapter Five

Integrating Intellectual Property into Islamic Shari’a

5.1 Introduction The previous chapter proposed that the relationship between IP and Islamic Shari’a needs to be re-thought. This chapter discusses how that relationship might be re- conceptualised.

IP law and policy on an international level are primarily based on incentive rhetoric. From the TRIPs Agreement to the WIPO Internet Treaties to the IP provisions in FTAs, IP rights are essentially seen as an economic tool to incentivise the production of more goods. Strong and more extensive IP rights are seen by those who influence IP law and policymaking on an international level as tools for promoting welfare for all. This mindset fails to account for broader development concerns, particularly in less affluent nations, which include all the countries with predominantly Islamic Populations.

A growing body of research has been critical of incentive based theories of IP. Limits on IP rights designed to promote openness, sharing and collaboration have the potential to empower individuals to both access knowledge products and participate in the creation of these products. Greater access and participation may promote the kind of development required by Islamic Shari’a.

Various principles derived from the sources and objectives of Islamic Shari’a support the view that IP laws and policies should not be exclusively based on an economic analysis grounded on incentives. These principles can be invoked to promote openness and to achieve a fairer distribution and greater dissemination of knowledge and cultural resources in order to increase people’s capabilities to access knowledge products and participate in the creation of these products.

If implemented in IP these principles may lead to reconsideration of the exclusive right of IP owners by reorienting them to actualise fair distribution of intellectual goods and promote wider dissemination of knowledge and culture. Additionally, these principles can assist in empowering users of intellectual goods by promoting their rights to greater access to these goods. Moreover, these principles recognise

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notions such as sharing and cooperation which can be invoked to support new modalities of knowledge and cultural production.

This chapter begins by suggesting a view of IP not only as an incentive mechanism but also as a tool for promoting development by empowering people’s capabilities. In doing so, the first section offers a critique of incentive-based arguments. This critique is not comprehensive, and is provided only to the extent necessary to justify going beyond an incentive-based argument in guiding the normative analysis of IP. The second section of the the chapter introduces a set of principles based on the sources of Islamic Shari’a, which go beyond an economic analysis of IP and adopt a broader perspective. This perspective is derived from the Islamic conception of the purpose of property and its limitations, distributive justice and the wide dissemination of knowledge.

5.2 Beyond the Incentive Rhetoric

The prevailing analysis of IP runs along the following lines: the modern economy is built on information and knowledge,1 and IP rights are the most effective method of providing incentives for individuals to create more information and knowledge. Failure to secure these rights would result in people losing the incentive to produce creative goods because of the fear that their works would be used by others without them being protected and rewarded, and this would certainly harm the interests of society. This analysis is known in the IP scholarship as the utilitarian justification for IP.2

1 Joseph E. Stiglitz, Public Policy for Knowledge Economy, Department for Trade and Industry and Center for Economic Policy Research London, U.K. January 27, 1999, 1. Available online at: http://akgul2.bilkent.edu.tr/BT-BE/knowledge-economy.pdf 2 Compare Jerome H. Reichman & Rochelle Cooper Dreyfuss, ‘Harmonization without Consensus: Critical Reflections on Drafting a Substantive Patent Law Treaty’ (2007) 57 DUKE L.J. 85, 122. They state that ‘patent law’s raison d’être is to encourage the production of novelty and inventiveness’; See also Richard. A. Spinello and Maria Bottis, A Defence of Intellectual Property Rights (Edward Elgar, 2009) 195, the author argues that ‘intellectual objects subject to intellectual property controls have a positive impact on the diffusion of knowledge and the development of culture’. Another commentator goes further than that by stating ‘after all, a nation's regime of intellectual property law sets the stage and establishes the incentives for innovation and technological change.’ Stanley M. Besen and Leo J. Raskind, ‘Introduction to the Law and Economics of Intellectual Property’ (1991) the Journal of Economic Perspectives, Vol. 5, No. 1, 3-2, the assumption that IP is the only tool to incentivise is also built-in in various legal documents such as: the United States Constitution, article 1 - The Legislative Branch Section 8 - Powers of Congress. art 7 of TRIPS Agreement links between the existence of IP laws and the ‘promotion of technological innovation and to the transfer and dissemination of technology’; WIPO has a slogan that reads ‘Encouraging Creativity and Innovation’ This is also what has been declared in UN World Summit for the Information Society (WSIS) held in Geneva 2003; art

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This analysis is used in the existing literature on IP and Islamic Shari’a to argue that IP promotes the public interest and should therefore be accepted under maslaha mursala.3

Nevertheless, the Islamic perspective on the public interest, development and welfare rejects this singular economic analysis of IP. It embraces the rhetoric of the ‘Capabilities Approach’4 to development pioneered by Amartya Sen and Martha Nussbaum which urges policy and lawmakers to look not only to the maximization of wealth but also to empower people’s capabilities to obtain access to, among other things, health and education.5

Madhavi Sunder introduces an interesting vision of IP, incentive and development, building on the work of Sen and Nussbaum on development. In particular, she employs their Capabilities Approach. Sunder argues that IP laws have ‘profound effects on human capabilities’.6 Most noticeably, they have a bearing on people’s ability to access essential medicine and textbooks. Furthermore, IP laws affect people’s capabilities to ‘think, learn, share, sing, dance, tell stories, joke, borrow ideas, inspire and be inspired,[and] critique’.7 These laws should not be viewed only through the lens of incentivising innovation as per the common perception.8

The failure of the dominant IP systems to account for development concerns can be attributed to their singular and overwhelming focus on economic analysis. IP is seen essentially as a tool for incentivising the production of more cultural and knowledge goods. Law and policy making must go beyond the narrow vision of incentives to account for broader social, cultural and ethical considerations.

This section builds on a growing body of interdisciplinary research on the role of incentive in promoting knowledge and cultural production. It argues that incentive rhetoric has various weaknesses, particularly in light of the recent developments regarding knowledge and cultural production in cyberspace. IP rights are neither the

42 of the declaration states ‘Intellectual Property protection is important to encourage innovation and creativity in the Information Society’. Available on line at http://www.itu.int/wsis/docs/geneva/official/dop.html 3 See page 82 et seq. 4 For a definition for the Capabilities Approach see footnote 7 of Chapter 4. 5 See page 109 et seq. 6 Madhavi Sunder, From Goods to a Good Life: Intellectual Property and Global Justice (Yale University Press, 2012) 1-7 and 11. 7 Ibid, 1. 8 Ibid .

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only mechanisms nor the best ones to promote the production of intellectual goods. Openness, sharing and collaboration can also spur innovation and creativity. In the sphere of IP policies in developing countries, these values may assist in fostering the creation and dissemination of more intellectual products and thereby promote development as Islamic Shari’a requires.

5.2.1 Critique of the Incentive Rhetoric

IP can be viewed from another angle, based on the growing body of literature in psychology, behavioural economics and business management studies. 9 This literature provides us with a different point of view on the role of IP laws than that advocated by the proponents of the currently dominant IP systems.

Before embarking on a discussion of the findings of these interdisciplinary studies, it should be made clear that this research does not seek to employ these studies to establish that Islamic Shari’a is against IP protection. Rather, it uses these studies to challenge the arguments that link stronger and more extensive IP rights to stronger incentives and, therefore, to actualising the public interest/development.

It is hoped that the insights from these studies will inform those interested in designing a Shari’a-friendly IP system that traditional settings of IP systems are not the only mechanisms to motivate people to maximise innovation and creativity and that thinking of alternative policy approaches is highly encouraged

5.2.1.1 Psychology vs. IP’s Incentive Theory

The importance of intrinsic motivation in engaging in creative activities is widely recognised in the field of psychology.10 Before considering some of the relevant literature, it needs to be appreciated that IPRs are perceived as ‘economic rights

9 Eric E. Johnson, ‘Intellectual Property and the Incentive Fallacy’ (2012) FLA ST. U. L. REV, 1.

10 For instance see: David M. Kreps, ‘Intrinsic Motivation and Extrinsic Incentives’ (1997) The American Economic Review, Vol. 87, No. 2, pp.359-364, 360; Robert Eisenberger & Linda Shanock, ‘Rewards, Intrinsic Motivation, and Creativity: A Case Study of Conceptual and Methodological Isolation’ (2003) Creativity Research Journal. This article foucuses on how some scientsts Einstein, Feynman and von Neumann, where influenced by the intrinsic motivation to produce creative works. This works affected and will continue to affect humanity in future, at 121; J Schmidhuber, ‘Formal Theory of Creativity, Fun, and Intrinsic Motivation’ (1990–2010), Volume: 2, Issue: 3, Publisher: IEEE, 230 and Dan Ariely, Anat Bracha, and Stephan Meier, ‘Doing Good or Doing Well? Image Motivation and Monetary Incentives in Behaving Prosaically’ (2009) The American Economic Review 99, 544-555.

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[that] generate extrinsic reward’. 11 This means that IPRs stand as an extrinsic motivation to innovation and creativity. This raises the question of whether innovation and creativity need an external prompt in order to be produced.12

Abraham Maslow, a renowned American psychologist, 13 in ‘Motivation and Personality’ first published in 195414 argues that creativity is motivated by self- actualization, which is an intrinsic motivation. People create innovative objects because they have an innate desire to express themselves, and, to communicate their thoughts, impressions and ideas to others.15

Other researchers such as Edward L. Deci and Richard M. Ryan in a study published in 1985, 16 and Teresa Amabile of Harvard Business School, 17 have conducted empirical research and concluded that the reasons for creativity lie in the intrinsic motivation of individuals not in the promise of being rewarded with something specific. Furthermore, linking creative activities to external factors, including monetary ones, could harm creativity. Amabali states that:

The present conceptualization of creativity proposes that intrinsically motivated individuals will be deeply involved in the activity at hand because they will be free of extraneous and irrelevant concerns about goals extrinsic to the activity itself. They will be playful with ideas and materials because of their freedom to take risks, to explore new cognitive pathways, to engage in behaviours that might not be directly pertinent to attaining a ‘solution.’ Since they undertook the activity primarily for the enjoyment of engaging in it, they will see the activity as more like play than like work. Extrinsically motivated individuals, on the other hand, will be, at some level, concerned with the extrinsic goal to be attained and will thus not be as deeply involved in the activity.18

11 Karim Lakhani and Robert G. Wolf, ‘Why Hackers Do What They Do: Understanding Motivation and Effort in Free/Open Source Software Projects’ (2003) MIT Sloan Working Paper, 461. 12 For the purpose of this section the term creativity will be used interchangeably with the term innovation. 13 http://en.wikipedia.org/wiki/Abraham_Maslow#Academic_career 14 Abraham Maslow, Motivation and Personality (Haper & Brothers, 1954) 15 Ibid, cited in Diane Leenheer Zimmerman ‘Copyrights as Incentives: Did We Just Imagine That?’ (2011) Theoretical Inquiries in Law, Volume 12, Issue 1,46. 16 Edward L. Deci and Richard M. RyanIntrinsic, Motivation and Self-Determination in Human Behavior, (Plenum Press, 1985). 17 See for instance: Teresa Amabile, ‘Effects of External Evaluation on artistic Creativity’ (1979) Journal of Personality and Social Psychology, Vol. 37, No. 2; Teresa Amabile, ‘The Social Psychology of Creativity: A Componential Conceptualization’ (1983) Journal of Personality and Social Psychology, Vol 45(2) pp. 357-376 see also Teresa Amabile and A. Hennesy, Reward, ‘Intrinsic Motivation, and Creativity’ (1998) American Psychologist, Vol 53(6) 674-675. 18 Teresa Amabile Amabali, Effects of External Evaluation on artistic Creativity, Above n 17, 222.

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Accordingly, people will still be motivated to produce intellectual products even in the absence of extrinsic rewards because ‘[each] of us is born with ... an expansive tendency made up of instincts for exploring, for enjoying novelty and risk.’ 19 Therefore, creativity is part of human nature and will continue regardless of any potential reward.

Daniel Pink points out that motivations by their very nature narrow our focus and concentrate the mind, whereas creativity requires a broad vision. External rewards do not allow for that, but ‘actually narrow our focus and restrict our possibilities’.20 He refers to a study conducted by Dan Ariely and three of his colleagues. The study involved some MIT students. They gave these students a bunch of games that involved creativity, motor skills, and concentration. They offered them three levels of rewards small reward, medium reward, and large reward.

The results came as a surprise. As long as the task involved only mechanical skills, bonuses worked as they would be expected: the higher the pay, the better the performance. However, once the task called for creativity, a larger reward led to poorer performance.

The same researchers moved to the city of Madurai in India and conducted the same empirical research on groups of people living there. They found that ‘people, whom offered the medium level of rewards, did no better than the people offered the small rewards but this time, people offered the highest rewards they did worst of all. Higher incentives lead to worst performance’.21

Pink concludes that intrinsic motivation, being a driving factor of innovation and creativity, ‘is one of the most robust findings of social science, and also one of the most ignored’.22

The arguments presented above have been deployed by some IP scholars to challenge the very existence of IP laws or, at least, to condemn their increasing

19 M Csikszentmihaly, Creativity: Flow and the Psychology of Discovery and Invention, 2. 20 H. Pink, the Surprising Science of Motivation, (public lecture posted on TED website in August, 2009) http://www.ted.com/talks/lang/en/dan_pink_on_motivation.html 21 H. Pink, the Surprising Science of Motivation, (public lecture posted on TED website in August, 2009) http://www.ted.com/talks/lang/en/dan_pink_on_motivation.html 22 Ibid .

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expansion.23 According to Diane Zimmerman the assumption that IP laws would support innovation ‘is based on partially or wholly mistaken beliefs about human behaviour’.24 This is because, according to Eric Johnson:

People are ... intrinsically motivated to undertake novel and challenging intellectual tasks. That is, people are naturally driven to create, to invent, to tinker, to write, and to compose – all those labours that are the celebrated province of intellectual property. [So even without law protecting the outcome of these activities, people will still have intrinsic motive to create] Indeed, a growing literature, primarily from social scientists, shows that for creative labour, intrinsic motivation – as opposed to extrinsic motivation – is the most important stimulus to action.25

Rebecca Tushnet has drawn insights from arguments such as these on the potential harm that extrinsic motivation might cause to the kind of creativity encouraged by copyright. She states that:

Psychological and sociological concepts can do more to explain creative impulses than classical economics [extrinsic motivation]. As a result, a copyright law that treats creativity as a product of economic incentives can miss the mark and harm what it aims to promote.26 (Emphasis added.)

The ever-expanding circles of IP laws seem to stand in contradiction to convincing but ignored facts from psychology. Laws which are supposed to promote creativity and innovation should take into consideration not only the unproven social assumptions and the underlying protocols of large businesses, but more importantly what science has to say with regards to human behaviour,27 the most important factor in creativity and innovation. Current IP

23 Diane L. Zimmerman, ‘Copyrights as Incentives: Did We Just Imagine That?’ (2011) 12. Theoretical Inq. L, 29. Eric E. Johnson, ‘Intellectual Property and the Incentive Fallacy’, above n 9, 1; Gregory N. Mandel, ‘To promote the creative process: intellectual property law and the psychology of creativity’ (2011) Notre Dame Law Review,2000; Ruth Towse, ‘Creativity, Copyright and the Creative Industries Paradigm’ (2010) KYKLOS, Vol. 63. No. 3, 461–478, 464; Adam. D. Moore, ‘Intellectual Property, Innovation, and Social Progress: The Case Against Incentive Based Arguments’(2003) HAMLINE LAW REVIEW, 608. 24 Diane L. Zimmerman, ‘Copyrights as Incentives: Did We Just Imagine That?’, above n 23, 34 25 Eric E. Johnson, ‘Intellectual Property and the Incentive Fallacy’, above n 9, 16. 26 Rebecca Tushnet, ‘Economies of Desire: Fair Use and Marketplace Assumptions’ (2009) 51 Wm. & Mary L. Rev. 513, 515. 27 Henry N. Butler and Larry E. Ribstein, ‘Legal Process and the Discovery of Better Policies for Fostering Innovation and Growth’ in Kauffman Task Force on Law, Innovation, and Growth, Rules for Growth: Promoting Innovation and Growth Through Legal Reform (Ewing Marion Kauffman Foundation, 2011) 463.It is submitted that innovation is dependent on the way in which laws are made. If the laws which are supposed to promote innovation are run afoul of an important factor in the process of creativity, that is human behaviour, such laws could be devoid of their purpose and as such are socially dysfunctional.

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laws seem to ignore such considerations and, as a result, they could indeed constitute that extrinsic motivation which stifles creativity and innovation. Any study which aims to adopt the current IP system into Islamic Shari’a by virtue of maslaha mursala should take note of this, by not assuming that the enactment of IP laws will promote innovation, creativity and the overall public interest.

The insights from recent psychological research should be taken into account in designing IP laws. At the very least, they should help change the mindset of policymaking from the passive (unproven) assumption that more IP protection leads to more incentives, to a new approach questioning the introduction of new IPRs or increased protection for existing IPRs.

In other words, these insights support the use of an evidence-based approach instead of a faith-based approach. If Islamic Shari’a is about promoting development, this approach is more conducive and therefore more faithful to the sources and objectives of Islamic Shari’a.

5.2.1.2 The Incentive of Monopoly vs. the Power of Openness

What would really promote creativity and make innovation thrive? Would it be granting the author and the inventor exclusive rights for twenty, fifty or seventy years? Or does the secret lie in restricting or even eliminating monopoly?

Michele Boldrin and David K. Levine have raised the case against IP from an economic perspective.28 They argue that ‘intellectual property’ has come to mean not only the right to own and sell ideas, but also the right to regulate their use. This creates a socially inefficient monopoly, and they suggest that what is commonly called IP might be better called ‘intellectual monopoly,’29 as is reflected in the title of their book30 ‘Against Intellectual Monopoly’31 in which they describe their economic

28 Boldrin and David K. Levine, the Case against Intellectual Property, (Michele University of Minnesota and UCLA, 2002), 1, available online at: http://dklevine.org/papers/intellectual.pdf 29 Ibid 1. 30 Douglas Clement refers to some responses to Michele Boldrin and David K. Levine’s work; he states that ‘Robert Solow, the MIT economist who won a Nobel Prize in 1987 for his work on growth theory, wrote Boldrin and Levine a letter calling the paper ‘an eye-opener’ and making suggestions for further refinements. Danny Quah of the London School of Economics calls their analysis ‘an important and profound development’ that ‘seeks to overturn nearly half a century of formal economic thinking on intellectual property.’ Douglas Clement, Creation myths: does innovation require intellectual property rights?, 2003, available online at: http://findaticles.com/p/articles/mi_m1568/is_10_34/ai_98125298/ 31 Michele Boldrin and David K, Against Intellectual Monopoly, above n 28.

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analysis of the historical development of IP laws, especially regarding patents, as well as a visibility analysis of competition versus the monopoly of ideas.

Boldrin and Levine assert that where monopoly over ideas is absent, fierce completion takes place. The authors argue in the fourth chapter ‘Innovation without Patents’32 that history and current practices reveal that what makes innovation and creativity thrive is competition, not monopoly. They maintain that ‘whatever a world without patents and copyrights would be like, it would not be a world devoid of great new music and beneficial new drugs.’33

Boldrin and Levine refer to various historical developments in which they claim that competition between ideas has led the way to greater innovation and creativity in a way that is far reaching in comparison with what IPRs have done in this regard.34 One interesting example is that of James Watt and the invention and development of Cornish steam engine.

Watt invented the so-called Cornish engine in Cornwall, England and patented it with the assistance of his friend Matthew Boulton in 1775. During the patent term (1775-1800), Watt and Boulton practised their monopoly over the idea, and fought and bankrupted any inventor who tried to imitate their machine35 such as in the case of Jonathan Hornblower.

Of particular importance is the advancement that took place after the expiry of the patent, where:

[A] group of mine … managers decided to begin the publication, the operating procedures and the performance of each engine ... Their declared aims were to permit the rapid individuation and diffusion of best-practice techniques, and to introduce a climate of competition among the various mines’ engineers.36

The availability of the technical information, along with the expiry of Watt’s patent and with it his monopoly, allowed the invention of the first high-pressure engine by

32 Ibid. 33 Ibid, first chapter, p 10. 34 For instance what the authors have discussed in the second chapter of the book ‘Creation Under Competition’ regarding the production of literary and artistic works before the emergence of copyright. They give the example of ‘William Shakespeare [who] had found incentives for writing his opus even without those fourteen years [monopoly under copyright], and yet no Shakespeare appeared after 1710’ Michele Boldrin and David K, Against Intellectual Monopoly, above n 28, 17. 35 Ibid, forth chapter at 5-6 . 36 Michele Boldrin and David K, ‘Against Intellectual Monopoly’, above n 28, forth chapter p 6

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Richard Trevithick in the same city where Watt had invented his engine.37 What was interesting is that Trevithick did not patent his invention. This allowed competition among other firms and led to substantial improvements that exceeded any improvement that occurred during the patent term of Watt’s steam engine.38 Boldrin and Levine comment that:

As a measure of the social value of competition versus monopoly ... [t]he duty of steam engines (a measure of their coal-efficiency) that, during the twenty five years of the Boulton and Watt monopoly (1775-1800), had remained practically constant [with no recorded substantial improvements], improved by roughly a factor of five during the 1810-1835 period [the period in which Watt had no patent and Trevithick did not patent his improved high pressure engine]. This successful collaborative effort to improve the Cornish engine illustrates the genius of the competitive market.39

The genuineness of the social value of competition over monopoly seems to continue, according to Boldrin and Levine, based on their observations from the development of both: Route 128 and the Silicon Valley.40

Route 128 is high-tech region established after World War II in Boston, Massachusetts, in the US and derived its name from the highway surrounding the city of Boston. Silicon Valley is located in the southern part of the San Francisco Bay Area in Northern California in the US and the home of the most influential high- tech corporations in the world.41

What seems to be of particular importance in the narratives of Route 128 and Silicon Valley is not their location, but the strategies that they have adopted, leading Silicon Valley to overcome Route 128. As Anna Saxenian explains that, numerically, Silicon Valley was superior to Route 128 in terms of new technologies, job creation and corporate growth.42

37 Ibid. 38 Ibid. 39 Ibid. 40 Ibid, chapter eight at 13. 41 The large companies that have changed the our culture in the past 20 years are located in the Silicon Valley this includes Apple, Google, Intel, Facebook and Yahoo, http://www.siliconvalley.com/sv2020 42 Anna Saxenian, Regional Advantage: Culture and Competition in Silicon Valley and Route 128, (Harvard University Press, 1994) 2.

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Boldrin and Levine, based mainly in Saxenian’s work, 43 attribute the reason for Silicon Valley overtaking Route 128 to the competitive environment in the former in comparison to the secrecy and the implementation of restrictive IP policies in the latter. They observed that:

While Route 128 companies spent resources to keep knowledge secret – inhibiting and preventing the growth of the high tech industry – in California this was not possible. And so, Silicon Valley – freed of the millstone of monopolization – grew by leaps and bounds.44

Exclusive rights over ideas in the manner of current IP laws leads to a strange economic paradox: in order to promote the creation of new ideas in the market place, it is necessary to grant the creators of the existing ideas the right to prevent others from using them.45

Boldrin and Levine are not alone in their case against IP, Oxford economist Paul David argues that:

[Modern] theoretical grounds, and by reference to historical experience: legal protection of IP rights in the form of state-sanctioned monopoly franchises can have seriously detrimental consequences for the processes of discovery and invention46

The criticism of monopoly as illustrated above is in line with Islamic restrictions on monopolistic practices in relation to tangible goods. A detailed analysis of the Islamic restriction on monopoly is beyond the scope of this section; suffice it to refer to evidence from the Qur’an 47 and the Sunnah48 of the Prophet Muhammad (PBUH) which condemns preventing people from fulfilling their needs and considers monopoly to be injustice that is haram (prohibited) according to Islamic Shari’a.49

The arguments against the efficiency of the current IP laws become even more convincing when viewed in light of observations from cyberspace.

43 Ibid pages 2, 45, 60 and 80. 44 Michele Boldrin and David K Levine, Against Intellectual Monopoly, above n 28, chapter eight, p 16. 45 Brian Martin, ‘Against Intellectual Property’ (1996) Journal of Intellectual Property Rights, Vol. 1, No. 5, pp. 257-270. 46 Paul A. David, ‘The Evolution of Intellectual Property Institutions and the Panda's Thumb’ (1992) International Economic Association in Moscow, 20, Paul A. David wrote this article when he was at Stanford University almost a decade before Boldrin and Levin’s work, however, the latter’s contribution is more significant due to the comprehensive analysis of historical and modern theoretical grounds in comparison with Paul’ work. 47 The Quran (Sahih International) 22:25. 48 For elaboration of the Hadiths that have prohibited monopoly please see, Ahmed. M. Afifi, Al-ihtikar wa mawqef al-shari’a al-islamiyya menho (Maktabat Wahba, 2003) 104 et seq 49 Ibid 107.

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5.2.1.3 The Example of Cyberspace

The emergence of the Internet is marked as one of the most significant leaps in the history of humanity. Information, knowledge and culture are exchanged among masses of people through interconnected information platforms. New creative content is produced on a gradual basis 50 through connections between discrete packages of information.51 This enables our culture to be analysed and rewritten,52 and fundamentally influences our perceptions on a wide variety of concepts and beliefs.

The connected networks of the Internet have shaped a virtual — but communicative — space where people can cross borders freely within a realm characterised by the ability to go anywhere, see anything, learn, compare and understand.53

With the rapid growth of Internet technologies, along with the availability of personal computers to a greater number of people, participatory platforms have been brought into existence. The main characteristics of these platforms are that people would produce creative works for free and have opportunity to distribute them for free, relinquishing the traditional and expensive intermediaries who used to dominate the public dissemination of knowledge and information.54 These characteristics seem to stand in direct contradiction to the rationale behind the IP regime.55 Furthermore, such a regime makes the progress of creative production within the networked space illegal56 as it was ‘developed for an entirely different normative environment, and the result is the creation of barriers to scientific innovation’.57

50 Yochai Benkler, The Wealth of Networks How Social Production Transforms Markets and Freedom (Yale University Press, 2006) 2. 51 Jessica Litman, Digital Copyright (Prometheus Books, 2001) 12. 52 Lawrence Lessig, Laws that Choke Creativity (Lecture posted on Ted website in November, 2007) available online at: http://www.ted.com/talks/lang/en/larry_lessig_says_the_law_is_strangling_creativity.html 53 Lawrence Lessig, ‘Intellectual Property and Code’ (1995-1996) 11 St. John's J. Legal Comment. 635 ,636. 54 Niva Elkin Koren, ‘User Generated Platforms’ in Rochelle C. Dreyfuss, Harry First and Diane L. Zimmerman, Working within the Boundaries of Intellectual Property (Oxford University Press, 2010) 113. 55 Eric Schlachter, ‘Intellectual Property Renaissance in Cyberspace: Why Copyright Law Could Be Unimportant on the Internet’ (1997) Berkeley Tech. L.J. 15, 16 56 This led scholars as Lessig, Benkler and Litman to argue against the current IP regime and demand for it to be revised to come in terms with the digital revolution. 57 Victoria Stodden, ‘Innovation and Growth through Open Access to Scientific Research: Three Ideas for High-Impact Rule Changes’ in Kauffman Task Force on Law, Innovation, and Growth, Rules for

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Each day, millions surf the networked space. They use computer programs that are freely available (Linux). They read articles that have been voluntarily posted on the Internet (Wikipedia). They watch remixed creative films (Youtube) and download literary or artistic works which are free from prohibitive copyright (using peer to peer websites).

These ubiquitous platforms contribute to the ‘promotion of science and useful arts’ but without waiting for the promise of exclusive rights conferred by IPRs. What is more, and since the users of these platforms are heavily dependent on their transformative uses, the exclusive rights warranted by the current IP system could have a negative effect, since they might restrict the freedom of users to access to other creative products, resulting in less creative outputs.58

The examples of Open Source Software and Wikipedia and the great number of creative works associated with their existence and development convincingly reinforce insights regarding the prevalence of intrinsic over extrinsic motivation, and the power of competition over monopoly.

Open Source Software (OSS) has revolutionised the production and development of software programs since the mid-1990s. 59 In OSS, the code, which is usually protected by copyright, is available for downstream users so they can understand how the program works and contribute to its development by fixing any bugs or glitches and suggesting improvements. The interactive feedback within a realm of ‘mass collaboration’ between programmers60 made the OSS initiative a success story which made the lives of millions of people easier.

Brian Fitzgerald, along with other commentators, observes that the OSS initiative turned some of the traditional aspects of the current copyright law ‘on [their] head’.61 Conventional licensing agreements restrict access to creative content by preventing the licensee from transferring subject matter to other users. In the case of OSS, the

Growth: Promoting Innovation and Growth Through Legal Reform (Ewing Marion Kauffman Foundation, 2011) 410. 58 Niva Elkin Koren, User Generated Platforms, above n 54, 128. 59 Stephen M. Maurer and Suzanne Scotchmer, ‘Open Source Software: The New Intellectual Property Paradigm’ (Working Paper 12148, National Bureau of Economic Research, 2006) 3. 60 Brian Fitzgerlad et all, Open Access to Knowledge (OAK): Creating a legal framework for copyright management of open access within the Australian academic and research sector (QUT Faculty of Law, 2006) 306. 61 Ibid 307.

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licence is denied if the developer does not disclose the source code for the modifications she/he makes to the program. So the license is employed ‘as a way of guaranteeing access to the code’.62

If the developer of the software program knows that she or he will not enjoy the traditional protection of IP, why would she/he be interested in developing the program and spend many hours working on it?

This question has attracted the attention of many scientists in the fields of psychology and behavioural economy63 given the omnipresence of OSS on the web. For instance, 90,555 million machines are registered with Linux with over 60 million users as of May 2012.64 Apache runs over 105 million sites and has 64 per cent of the market share ahead of Microsoft as of January 2012.65 Android open source policy has also had great influence.66

Why do people involved in web-based creativity and innovation participate in OSS knowing that their works most likely will be used by others without remuneration?

As Josh Lerner and Jean Tirole have observed:

The behavior of individual programmers and commercial companies engaged in open source processes is startling.67

The results of a survey of 336 OSS programmers by Karim Lakhani and Eric Von Hippel of MIT support the literature on intrinsic motivation discussed above. Lakhani and Hippel found out that ‘98% of the effort invested by help providers was intrinsically rewarding to those providers’.68

62 Ibid, for more on the conditions of GUU licences see http://www.gnu.org/ 63 See for instance, Karim R. Lakhani and Eric von Hippel, How open source software works: ‘free’ user-to-user assistance’ (2003) Research Policy 32, 923; Jürgen Bitzera, Wolfram Schrettla and Philipp J.H. Schröderb, ‘Intrinsic motivation in open source software development’ (2007) Journal of Comparative Economics 35 160, and Sonali K. Shah, ‘Motivation, Governance, and the Viability of Hybrid Forms in Open Source Software Development’ (2006) Management Science, 1000. 64 Linux, official website: https://linuxcounter.net/ 65 Netcarft, February 2012 Web Server Survey (2012) http://news.netcraft.com/archives/2012/02/07/february-2012-web-server-survey.html 66 In the recent two years, the applications developed and distributed under the OSS policies of Android are enormous. Suffice to have a look on a smart phone or tablet that operates with Android to understand how the OSS have contributed to make fundamental changes in our lives and how it has the potential to reshape the entire underlying philosophy of IPRs http://source.android.com 67 Josh Lerner and Jean Tirole, ‘Some Simple Economics of Open Source’ (20030 The Journal of Industrial Economics, 196. 68 Karim R. Lakhani and Eric von Hippel, ‘How open source software works: ‘free’ user-to-user assistance’ above n 63, 940.

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Daniel Pink, drawing on another study by Lakhani and his colleague Bob Wolf that surveyed 648 software developers, concluded that ‘ultimately, open source depends on intrinsic motivation with the same ferocity that older business models rely on extrinsic motivation’.69

In today’s digital world, incentives conferred by IP laws are markedly irrelevant to the production of a substantial part of the content that is supposed to be promoted by IPRs. This is because production of this contents ‘is motivated intrinsically’. 70 Competition ‘[would lead] to thriving innovation in the software industry’ 71 but monopolies offered by patent and copyright would not.

Wikipedia can provide us with additional evidence of the importance of intrinsic motives and the relative efficiency of the collaborative culture compared with monopolies under copyright. The number of English-language articles on Wikipedia was estimated to be almost 4 million in May 201272, requiring more than 100 million hours of labour to be produced.73 Consider the number of writers who participated over this time span to write such a vast amount of material for free. There was no promise of monopoly rights or any expectation of monetary reward. People were writing knowing that what they posted would be available for free for other people to use and even modify.

IP as we know it does not have the upper hand in the creation of the human knowledge available on Wikipedia. Wikipedia is an example of the promotion of creativity without exclusive rights. What connects people from different ethnic backgrounds, religious beliefs and different geographical locations is not the promise of reward but ‘a good faith collaborative culture’. 74 A group of ‘Wikipedians’ explain their passion about participating in such huge repository of human knowledge by saying: ‘We are all here for one reason: we love accumulating,

69 Daniel H Pink Drive, the Surprising Truth about What Motivates Us (Penguin Group, 2009) available online at: http://www.donpeterson.com.my/ebook/Drive- TheSurprisingTruthAboutWhatMotivatesUs.pdf 70 Eric E. Johnson, ‘Intellectual Property and the Incentive Fallacy’, above n 9, 2. 71 Michele Boldrin and David K, ‘Against Intellectual Monopoly’ above 28, chapter 2 p 3. 72 Wikipedia Statistics- Tables- English, http://stats.wikimedia.org/EN/TablesWikipediaEN.htm#editdistribution 73 Eric E. Johnson, ‘Intellectual Property and the Incentive Fallacy’, above 9, 23 74 Joseph Michael Reagle, Good Faith Collaboration The Culture of Wikipedia (The MIT Press, Cambridge, 2011) 9.

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ordering, structuring, and making freely available what knowledge we have in the form of an encyclopedia of unprecedented size.’75

Furthermore, the example of Wikipedia could show how intrinsically motivated individuals, within the collaborative cultural realm, would be creative in a way that goes beyond those individuals who were promised with external reward. Microsoft Encarta could be applicable example here.

Microsoft Encarta was a digital multimedia encyclopaedia that operated under the conventional framework of copyright law. Users were required to pay annual subscriptions or purchase the Encarta on DVDs or CDs. It entered the market in 1993, almost a decade ahead of Wikipedia. However Microsoft had to announce its discontinuance in 2009.76

In an article titled ‘Victim of Wikipedia: Microsoft to shut down Encarta’ published in 2009, the Guardian reported that Microsoft said ‘Encarta has been a popular product around the world for many years. However, the category of traditional encyclopedias and reference material has changed. People today seek and consume information in considerably different ways than in years past.’77

Encarta was a typical proprietary platform created under the traditional incentive mechanism of copyright, while Wikipedia was a child of efforts by people who were intrinsically motivated. Accordingly, even without the help of traditional IP mechanisms, people would still be creative, and that creativity might suffer from tying it to the extrinsic rewards bestowed by IP.

Cyberspace teaches us that openness, sharing and collaboration can contribute to more production of intellectual goods. IP law and policymaking must take note of these values and empower people, in Nussbaum’s words, ‘to use [their] senses, to imagine, think, and reason – and to do these things in a ‘truly human’ way. 78 Empowering people to use these capabilities to promote the values of openness, sharing and collaboration has the potential to promote innovation and creativity, and overall development.

75 Wikipedia: Wikilove: http://en.wikipedia.org/wiki/Wikipedia:WikiLove 76 The announcement was posted in Microsoft official website in 2009, please see http://www.microsoft.com/uk/encarta/default.mspx 77 ‘Victim of Wikipedia: Microsoft to shut down Encarta’, The Guardian, 31/03/2009, available online at: http://www.guardian.co.uk/media/pda/2009/mar/31/microsoft-wikipedia 78 Martha Nussbaum, Creating Capabilities, above Ch 4 n 21, 33.

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5.2.2 The Way Forward

Yochai Benkler observes that the mechanisms of promoting innovation and creativity in cyberspace inform us that property rights systems are not the only mechanisms which motivate people to promote innovation and creativity. 79 Assumptions that are built on incentives depict human beings as selfish creatures.80 ‘Yet, all around us, we see people cooperating and working in collaboration, doing the right thing, behaving fairly, acting generously’.81 In order to benefit the most from the potentials of cyberspace, we need ‘to build new models based on fresh assumptions about human behaviour that can help us design better systems’82than those we already have.

The way in which we design our IP laws and policies has a significant impact on development. The traditional incentive rhetoric on IP is narrow and should not be the only yardstick to guide its normative analysis. We need a broader perspective that assists in promoting the production of more intellectual goods and also empowers people to widely participate in the process of knowledge creation. In this context Madhavi Sunder asserts that:

The time has come to supplement our traditional economic analysis of intellectual property with a cultural analysis that takes note of the social and cultural effects of intellectual property law, but not to replace the economic lens with a cultural lens. Rather, neither lens alone is adequate either to describe positive intellectual property law or to guide normative analysis.83

IP is accepted under Islamic Shari’a only to the extent to which it promotes the overall development of our societies. The economic analysis of IP as an incentive mechanism is narrow and inadequate to lead collective development processes. Accordingly, designing a Shari’a-friendly IP system should embark from a broader understanding of the relation between IP and development, particularly, in light of

79 Yochai Benkler, the New Open-Source Economics (Ted 2008) http://www.ted.com/talks/lang/en/yochai_benkler_on_the_new_open_source_economics.html 80 Yochai Benkler, ‘The Unselfish Gene’ (Aug 2011) Harvard Business Review, 89. 81 Ibid. 82 Ibid. 83 Madhavi Sunder, ‘Intellectual Property and Development as Freedom’ in Neil Weinstock Netanel, The Development Agenda: Global Intellectual Property and Developing Countries (Oxford University Press, 2008) 470.

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the findings from psychology, economics and the status of innovation and creativity on cyberspace.

The consideration of public interest (development) from an Islamic perspective might mean not only granting exclusive rights to incentivise innovation and creativity, but also — and equally — considering IP systems which empower people’s capabilities to access knowledge products and participate in the creation of those products. The following sections propose principles based on the sources and objectives of Islamic Shari’a which may help towards that end. These principles emphasise the necessity of a fair and efficient IP system which reinforces the importance of promoting openness and achieving fairer distribution and greater dissemination of knowledge and cultural resources. These principles also emphasise the need to avoid the unfair concentration of knowledge resources and excessive restrictions on their use and re-use.

5.3 Regulating IP from an Islamic Perspective: Five Principles

The organisation of institutions in human societies - including property - is thought to have been brought about by a social contract. This social contract transformed people from ‘a state of nature’84 or ‘original position’85 to a civil society in which they had to submit to the laws of a sovereign. 86 Western legal and political philosophy has embraced this view since the era of Hobbes, Lock and Rousseau.87

Islamic Shari’a has its own theory on the creation of human society and its social institutions. According to the Islamic theory, people were in a ‘state of ignorance’ jahiliyya. Allah sent Prophets to them with guidance on how to organise, inter alia, society. The Qur’an says:

Humankind was one single nation, and Allah sent Messengers with glad tidings and warnings; and with them He sent the Book in truth, to judge between people in matters wherein they differed.88

84 This term is used by the main theorists of social contract, see Christopher W. Morri, The Social Contract Theorists: Critical Essays on Hobbes, Locke, and Rousseau (Rowman & Littlefield, 1999) 97. 85 As used by John Rawls in his Theory of Justice. 86 On the evolution of the theory of social contract see generally: Brian Skyrm, Evolution of the Social Contract (Cambridge University Press, 1996). 87 Raymond Wack, Philosophy of Law: A Very Short Introduction (Oxford University Press, 2006). 88 The Quran (Yūsuf Ali trans) 2:213.

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The organisation of the institutions of human society in Islamic theory is subject to the divine instructions as stated in the Qur’an, Sunnah and the rest of secondary sources as discussed in the second chapter.89 With regards to property, the general theme of Islamic Shari’a is the maintenance of balance between the human instinct towards possession, on one hand, and spiritual and societal values on the other. To this end the Qur’an says:

But seek, through that (wealth) which Allah has given you, the home of the Hereafter; and [yet], do not forget your share of the world. And do good as Allah has done good to you. And desire not corruption in the land. Indeed, Allah does not like corrupters.’90

Ibn Kathīt (d. 1303 CE)91 interprets this verse as following: private property is recognised to be a grant from Allah to humans, who have the right to enjoy it to fulfill their basic liberties (food, clothes, houses and legitimate pleasures).92 The enjoyment and usage of property are subject to the dictates of Islamic Shari’a in order to ensure that this property does not impinge on the activities of others,93 which is considered in Qur’an as ‘corruption in the land’.94

The following subsections introduce principles derived from the sources of Islamic Shari’a, mainly the Qur’an and Sunnah, which can be used as a normative framework to design a fairer and more efficient IP system. These principles do not only have theological merit. In fact, they bear great similarities to a modern and influential trend in Western thought,95 namely, Rawlsianism.96 Therefore, the Islamic

89 See p 21. 90 The Quran (Sahih International trans) 28: 77. 91 Ibn Kathir‘s interpretation of the Quran is known to Muslims worldwide to be one of the most reliable interpretations of Quran. 92 Ibn Kathīr, Tafsīr al-Quran al-ʿadhīm (interpretation of the Quran) (Dār Tayba) Vol 6, 253 93 Ibid 254. 94 The Quran (Sahih International trans) 28: 77. 95 This trend is led by John Rawls, who is one of the most influential philosophers and political thinkers in the Western thought in the 20th century. He worked at MIT and Harvard University for almost 50 years. For a general overview of Rawls ‘works and theories see: John Rawls, Stanford Encyclopaedia of Philosophy, available online at http://plato.stanford.edu/entries/rawls/#LifWor 96 Rawlsianism refers to the ideas of the renowned American philosopher: John Rawls (d. 2002) on the construction of fair human society. Rawls articulated his theory mainly in his two books: A Theory of Justice (1971) John Rawls, A Theory of Justice (Harvard University Press, 1971) and Justice as Fairness: A Restatement (2001) John Rawls, Justice as Fairness: A Restatement (Harvard University Press, 2001). The Rawlsianism argues that a just society should be based on two principles: (a) each individual has the right of basic liberties and (b) social and economic inequalities should be organised so they benefit the least advantaged and do not prevent fair equality of

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principles used in this chapter are not merely ideals of an ancient theology; they are relevant to a modern context insofar as John Rawls’ Theory of Justice is relevant.

5.3.1 Stewardship (Khilafah)

This section argues that stewardship (Khilafah) is a fundamental aspect of the Islamic perspective on the regulation of society, including the regulation of property rights in both tangible and intangible assets. Stewardship (Khilafah) can be used to place limits on IP rights and ensure that the regulation of IP takes into consideration the broader public interest and not only the exclusive rights of IP holders.

According to the Islamic faith, Allah created the earth for the settlement of humankind. The Qur’an says ‘He (Allah) brought you forth from the earth and settled you therein’. 97 Modern Muslim economists understand this text to be a benchmark for the concept of development in Islam. Professor Muhammed al- Fangari98 observes that the term ʿimara in the Arabic version of the text encompasses the modern concept of development. It connotes that individuals are instructed to develop the earth by labouring on the resources found in the commons to provide each member of the community (ummah) with their needs.99 Meanwhile, in Islam it is understood that individuals need motivation; accordingly, for the ʿimara to be actualised, recognition of private property is essential100 as people will be reluctant to labour on resources if they will be denied ownership over the resultant end product.

However, this ownership is linked to a principle which is deemed as one of the fundamental aspects of the Islamic faith, that is, the principle of stewardship (Khilafah). What does the concept of Khilafah mean? What is its scope? And what are its ramifications on the regulation of private property?

Khilafah or Isthikhlaf can be translated to mean stewardship, successorship or vicegerency. According to this concept the ultimate ownership of resources and end

opportunity. Wulf Gaertner, ‘Rawlsianism, Utilitarianism, and Profiles of Extended Orderings’ (1981) Journal of Institutional and Theoretical Economics, 78. 97 The Quran (Musin Khan trans)11:61. 98 Al-Azhar University, Egypt. 99 Muhammed al-Fangari, al-Madhab al-Iqtisādi fi al-Islam (al-Hay’a al-Misriyya li al-Kitab, 2006) 133 100 Muhammed Beltagi, al-Mulkiyyah al-Fardiyya fi al-Nizam al-Iqtisādi al-Islami (Dār al-Salam Publications, 2007) 44.

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products should be considered for Allah who created these resources and created the human who labours on these resources. Allah says in the Qur’an:

And remember when He made you successors after the people of Noah and increased you in stature extensively. So remember the favours of Allah that you might succeed.101

His is the dominion of the heavens and earth. And to Allah are returned [all] matters.102

Believe in Allah and His Messenger and spend out of that in which He has made you successors. For those who have believed among you and spent, there will be a great reward103

In interpreting this verse, al-Zamakhshari (d. 1144 CE) states that: the ultimate ownership of all assets, which are under the possession of individuals, is for Allah who created these assets. Allah grants those assets to humankind as trustees with permission to enjoy the fruits of these assets. Therefore, believers are called to spend from these assets with ease in the cause of public interest, as if they were granted permission to spend from another person‘s wealth.104 Imam al-Qarafi and Imam al- Shatibi argue to the same effect.105

Contemporary Muslim scholar, Yūsuf al-Qaradawi, asserts that Isthikhlaf is a central concept of the Islamic economy. Individuals are granted the rights to make transactions over the assets they possess, however these rights should be exercised bearing in mind that the ultimate owner of wealth is the Creator.106 Using agriculture as an example, al-Qaradawi contends that it is Allah who created the land, the seeds, and the water used by the farmers; so that whatever the farmer produces is produced by the will of Allah from the creation of Allah.107 Al-Qaradawi derived his example from the flowing Qur’anic verses:

And have you seen that [seed] which you sow?

101The Quran (Sahih International trans) 7: 69. 102 The Quran (Sahih International trans) 57:5. 103 The Quran (Sahih International trans) 57:7. 104 Al-Zamakhshari, al-Kashaf (Maktabat al-Abikan, 1998) Vol 6, 43. 105 Yūsuf Kamal, al-Islam wa al-Madhāhib al-Iqtisādiyya al-Mu’āsira (Dār al-Wafa, 1990) 153. 106 Yūsuf al-Qaradawi, al-Takaful al-Ijtimaʿi fi daw’ al-Shari’a al-Islamiyya (Maktabat Wahba, 2009) 11. 107 Ibid.

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Is it you who makes it grow, or are We the grower?

If We willed, We could make it [dry] debris, and you would remain in wonder...

And have you seen the water that you drink?

Is it you who brought it down from the clouds, or is it We who bring it down?

If We willed, We could make it bitter, so why are you not grateful?108

Allah’s ultimate ownership according to the Qur’an is not confined to tangible assets; it equally extends to knowledge. Furthermore, attribution of knowledge to human beings without reference to Allah, as the giver of such knowledge, is condemned in Qur’an.109 The following verses can be invoked to support the claim that, according to Islamic Shari’a, knowledge is grant or gift from Allah.110

The Qur’an narrates in Surat al-Alaq (Chapter of the Clot) that knowledge which humans possess was transferred to them from Allah: ‘Read! And your Lord is the Most Generous. Who has taught by the pen. He has taught human that which he/ she knew not’.111

Likewise, the Qur’an narrates in Surat al-'Anbyā' (Chapter of the Prophets) that Allah taught His Prophet Dawood (David, PBUH) how to manufacture coats of armour to protect soldiers in the battlefield.112

Additionally, in Surat al-Baqarah (Chapter of the Cow) angels attributed all knowledge to Allah ‘They said (the Angels), ‘Exalted are You; we have no knowledge except what You have taught us. Indeed, it is You who is the Knowing, the Wise.’113

Denying absolute ownership of knowledge is not limited to Islamic thought. John Rawls, in one of his boldest claims, argues that talents and natural abilities, with their

108 The Quran (Sahih International trans) 56: 63-70. 109 The Quran (Sahih International trans) 28:78. ‘He (Qarun) said, ‘I was only given it because of knowledge I have.’ Did he not know that Allah had destroyed before him of generations those who were greater than him in power and greater in accumulation [of wealth]? But the criminals, about their sins, will not be asked’. 110 Compare: Ida Azmi, Intellectual Property and Islam, above Ch 1 n 13, 121. 111 The Quran (Sahih International trans) 96: 4-5. 112 The Quran (Sahih International trans) 21: 80. 113 The Quran (Sahih International trans) 2:32.

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accompanying knowledge, are not things we inherently deserve. 114 They are conferred upon us by ‘accident and good fortune’ (emphasis added).115Additionally, it is argued that knowledge, which leads to inventions or artistic works, is rarely dependent on the efforts of a single individual.116 It is an accumulative process in which virtually any subsequent knowledge draws from proceeding knowledge. Accordingly, those who possess knowledge have a responsibility to society to allow the state to take some or even much of their knowledge for redistribution.117 In Islamic Shari’a, such state intervention could be justified under the concept of accountability.

The concept of stewardship is linked with the concept of accountability ‘then We made you successors in the land after them (stewardship) so that We may observe how you will do (accountability).’118 Accordingly, humans, as vicegerents of Allah, are expected to exploit the property bestowed on them by Allah in conformity with the dictates of Islamic Shari’a, which aim at full and efficient utilisation of resources for the general welfare of society.119

In order to achieve the full and efficient utilisation of resources, those who hold property under the Islamic concept of Isthikhlaf are requested to accept laws, regulations and instructions issued by a just Muslim ruler or government whenever such laws, regulations and instructions pursue the objective of fair redistribution or reallocation of resources for the benefit of the community (ummah).120

To sum up, Isthikhlaf means that the ultimate ownership of wealth (tangible or intangible) is Allah’s, but humans are allowed to have private property so long as they subject themselves to the dictates of Islamic Shari’a. This ‘dichotomy [between]

114 Compare, Merges, Justifying Intellectual Property, above Ch 3 n 252, 107. 115 John Rawls, A Theory of Justice, above n 96, 72 and 74. What is considered as ‘accident and good fortune’ in Rawls’ words is a grant from Allah in according to the Islamic faith. 116 Suzanne Scotchmer, ‘Standing on the Shoulders of Giants: Cumulative Research and the Patent Law’ (1991) Journal of Economic Perspectives, 29. 117 Merges, Justifying Intellectual Property, above Ch 3 n 252, 107. 118 The Qur’an (Sahih International trans) 10:14. 119Abdel Hameed M. Bashir, ‘Property Rights and Institutions and Economic Development: An Islamic Perspective’ , (2002) Humanomics, Vol. 18 Iss: 3, pp.75 – 91, 77 120 Yūsuf al-Qaradawi, Dawr al-Qiyam wa al-Akhlaq fi al-Iqtisad al-Islami (Maktabat Wahba, 1995) 47-50.

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God-Man ownership is reconciled with the notion of trusteeship of Man and Man’s accountability to God’.121

To reflect the concept of Isthikhlaf in IP, the argument runs as following:

 Ultimate ownership of knowledge is Allah’s;

 Allah’s ownership does not exclude private ownership, but it justifies re- arranging proprietary rights for the greater public good;

 IP, as a form of private property, is important for ʿimara;

 Individuals should be granted title over their intellectual creations;

 Exploiting the title has to be consistent with the dictates of Islamic Shari’a;

 These dictates may justify limiting the scope of the exclusive rights of IP holders in favour of ummah.

5.3.2 Non-concentration Principle

Allah’s ultimate ownership as prescribed in the Qur’an lays the foundations for constraints on private property. 122 Among these constraints lies the general prohibition of the hoarding of wealth, deemed a fundamental principle of Islamic economic policy.123

This section builds on the increasingly accepted assumption that the currently dominant systems of IP are contributing to the concentration of knowledge and cultural resources in the hands of few IP holders. Implementing the non- concentration principles derived from Islamic sources opens possible avenues for the reorientation of IP policymaking towards the fairer and more open distribution of knowledge, resources, and thought and a more robust conceptualisation of the rights of the users of IP materials.

Islam strictly condemns the concentration of wealth in the hands of few members of society: ‘and those who hoard gold and silver and spend it not in the way of Allah -

121 Sohrab Behdad, ‘Property Rights in Contemporary Islamic Economic Thought: A Critical Perspective’ (1989) Review of Social Economy Volume 47, Issue 2, 188. 122 Ibid , 193. 123 Sayīd Qutb, al-ʿadalah al-Ijtima’iyya fi al-Islam (Dār al-Shuruq, 13th ed, 1993) 92.

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give them tidings of a painful punishment.’124 Muhammed al-Ghazali argues that Islam encourages the circulation of wealth among all sectors of society and does not accept that any particular group should hold a monopoly on such wealth.125

A frequent example given for the non-concentration principle is that of the Prophet (PBUH) when he had migrated from Mecca to Madina and Muslims conquered the lands of the Bani al-Nazir tribe. The Prophet refused to distribute the property claimed in the conquest to the wealthy companions. Instead, the distribution included only the poor Muslims. The Qur’an came to approve the decision of the Prophet and has articulated the non-concentration principle ever since.126

Not far from the Islamic condemnation of the concentration of wealth, John Rawls in his book A Theory of Justice,127 but more profoundly in Justice as Fairness, asserts that ‘excessive concentrations of property and wealth’128 are ‘likely to undermine fair equality of opportunity’.129 Therefore, ‘background institutions must work to keep property and wealth evenly enough shared over time to preserve ... fair equality of opportunity over generations’.130 (Emphasis added.) This has to be done ‘by laws ... [that] prevent excessive concentrations of private power’.131 It is hard to differentiate between Rawls’ assertion and the Islamic view regarding the concentration of wealth.

The underlying wisdom in the prohibition of hoarding in Islam can be understood to include unused production capacity (eg knowledge which could be productive but is left unused due to IP restrictions).132Accordingly, individuals and firms within an Islamic economy are expected to use any means of production under their disposal to its maximum capacity. Unused means of production could be considered as an undesirable concentration of wealth and thus fair game for state intervention. One commentator on the Islamic economy notes that:

[Firms] making an economic profit by producing less than the ‘Islamic optimum output’ could be regarded hoarders. If hoarding is unlawful, then it must be the duty of the state to

124 The Qur’an (Sahih International trans) 9:34. 125 Muhammed al-Ghazali, al-Islam wa al-Manāhij al-Ishtirākiyya (Nahdat Misr, 4th ed, 2005) 95. 126 The Qur’an (Sahih International trans) 59:07. 127 John Rawls, A Theory of Justice, above n 96, 73. 128 John Rawls, Justice as Fairness, above n 96, 44. 129 Ibid 53. 130 Ibid 51. 131 Ibid. 132 Sohrab Behdad, above n 121, 194.

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eliminate it when it does occur. Thus, prohibition of hoarding may justify appropriation of unused private wealth by the state.’133

This observation could find its foundation in Islamic traditions; where it has been reported that the second Caliph, Umar Ibn al-khatab (d. 644 CE), used to make sure that lands under Muslims’ possession were used to their full operational capacity and, as head of state, he used to redistribute lands if the owners of these lands did not meet the condition of ‘full operational capacity’.134

Intellectual products can be viewed as a means of production. These means could be circulated among different sectors of society without depriving the first appropriator from benefiting from them. In other words, intellectual goods are non-rivalrous goods. They can be given without being given away. Accordingly, laws that highly restrict the circulation of these goods might contradict the non-concentration principle in Islamic Shari’a.

A common feature of the various IP systems is that they contain measures designed to manage the interests of those who own the IPRs and those who use the materials that are the subject of those rights. However, the measures used in current IP systems have increasingly been criticised for focussing overly on owners’ exclusive rights while giving insufficient weight to the interests of users. Giving more rights for IP holders is seen as a catalyst for innovation and creativity. Nevertheless, the more- rights-approach led to concentrating the power of controlling knowledge in the hands of few stakeholders and resulted in overlooking vital issues for the larger global community, particularly with regard to development as discussed in Chapter 4.

Generally, there is a strong case in the literature against the dominant IP systems for being highly restrictive. A substantial part of the current IP scholarship,135 led by

133 Ibid 134 Yūsuf al-Qaradawi, Dawr al-Qiyam, above n 120, 168.

135The relevant scholarship is so comprehensive. Two internationally renowned scholars among the leaders of this scholarship: Professors Lawrence Lessig and Yochai Benkler. See Lawrence Lessig, 'Creative Commons' (2004) 65 Mont. L. Rev. 1 8-9 and Lawrence Lessig, How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (Penguin Books, 2004); Benkler argues that a transformation towards openness as opposed to restrictiveness of the current IP system ‘will lead to substantial redistribution of power and money from the twentieth-century producers of information, culture and communications – like Hollywood, the recording industry and the telecommunications giants – to a widely diffuse population around the globe’. Yochai Benkler, ‘Freedom in the Commons’ (2003), 52 Duke Law Journal, 1249. See also Yochai Benkler, The Wealth of Networks How Social Production Transforms Markets and Freedom (Yale University

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prominent scholars and experts, argues that IP laws and policymaking on an international 136 and domestic level, particularly in developed countries, are contributing to the concentration of private power in the hands of a few within our societies.137 Significant portions of our knowledge and culture are being exported from the public domain and put into closed and private domains under private control.138 Lessig refers to statistics showing that in 2001 ownership of American culture in literary and artistic works was concentrated in less than 20 firms139 and observes:

Never in our history have fewer exercised more control over the development of our culture than now … Never has the concentration been as significant as it is now.140

Boldrin and Levine have argued at length about how the current systems of IP contribute to the concentration of knowledge and information in the hands of a few people,141 and how such concentration diminishes prosperity and social welfare.142 Other examples are provided in Chapter 6.

Press, 2006) 23. Other leading scholars introduce similar critics and arguments. See for example James Boyle, ‘The Second Enclosure Movement and the Construction of the Public’ (2003) LAW AND CONTEMPORARY PROBLEMS, 140, Jessica Litman, ‘Readers’ Copyright’ (2011) Journal, Copyright Society of the US.A,; Julie E. Cohen, Copyright, ‘Commodification, and Culture: Locating the Public Domain in Copyright’ in L. Guibault & P.B. Hugenholtz, The Future of the Public Domain: Identifying the Commons in Information Law, (Kluwer Law International, 2006) 159; Pamela Samuelson, ‘Enriching Discourse on Public Domains’ (Feb., 2006) Duke Law Journal, Vol. 55, No. 4, pp. 783-834, William Patry, How to Fix Copyright (Oxford University Press, 2011); Net Netanel, Copyright Paradox, (Oxford University Press, 2008) Michele Boldrin and David K. Levine, the Case against Intellectual Property, (Michele University of Minnesota and UCLA, 2002) 136 For insightful critic of the international copyright system and particularly with regard to its insufficient consideration for distributive justice concerns see Margaret Chon ‘Intellectual Property ‘from Below’ Copyright and Capability for Education’ (2007) 40 U.C. Davis L. Rev. See also 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. 137 Lawrence Lessig gives statistics that depict the levels of concentration of market powers in US enabled by copyright-along with other factors. Lessig states that the architecture of the law contributed to creating environment in which less than 20 firms own most of the American culture in in literary and artistic works. Despite the fact the Lessig’s statistics and observations were made in 2001, there is no reason to believe that the situation has changed. See Lawrence Lessig, Future of Ideas: The Fate of the Commons in a Connected World (Random House, Incorporated, 2001) 116-119 138 James Boyle, The Public Domain: Enclosing the Commons of the Mind (Yale University Press, 2010). 139 See Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World (Random House, 2001) 116-119 140 Lawrence Lessig, ‘Creative Commons’ (2004) 65 Mont. L. Rev. 1 8-9. 141 Lawrence Lessig argues in the same vein regarding patents, he states that: [patents] are not evil per se; they are evil only if they do no social good. They do no social good if they benefit certain companies at the expense of innovation generally. And as many have argued convincingly, that’s just what many patents today do. Lawrence Lessig, Future of Ideas: The Fate of the Commons in a Connected World, above n 137, 259. 142 See p 142.

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Hence, as is the case with the concentration of tangible assets, Islamic Shari’a does not seem to approve IP laws and policies that lead to concentrating the control of knowledge and culture in the hands of a few. In order to neutralise the negative effects of concentration of private powers, policymakers within Islamic states must intervene to prevent it. One essential mechanism for doing that is by implementing the principles of social and distributive justice.

5.3.3 Social Justice

The concepts of social justice in Islamic Shari’a can influence the regulation and management of IP in, at least two different ways. Firstly, they can be used to adjust the structure of IP laws to curb the mechanisms of concentration and exclusion they allow. This can be achieved by empowering the users of materials protected by IP. Secondly, these concepts, which promote sharing and collaboration, can be used to support alternative modalities of knowledge and cultural management and production which are based on sharing and cooperation such as open source projects and A2K.

Sayed Qutb, one of the most influential Islamic thinkers of the 20th century, was the first to articulate a theory of social justice based on Islamic Shari’a. Qutb wrote a comprehensive book entitled ‘Social Justice in Islam’ published in 1949, the starting point of which is that the concept of justice in Islam is not limited to economic justice143 but is fundamentally framed by spiritual values as reflected in the Islamic perception of life, wherein ideals such as compassion, amiability and cooperation must be reflected in all institutions of society.

Qutb asserts that Islam recognises that each individual has a natural disposition to possess as much wealth as they can — whether personal or productive — thereby preventing others from joining them. The Qur’an states that ‘men's souls are swayed by greed’.144

143 Qutb, above n 123, 26. 144 The Quran (Yūsuf Ali trans) 4:128.

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Simultaneously, Islam contains instructions, systems and regulations designed to ensure that the higher objectives of society (including fair distribution of wealth) are integrated within any social institution including the institution of property.145

Appropriation of property and wealth is subject to the established principle of Shari’a, that is, ʿadl (justice) 146 which necessitates equality of opportunity by emphasising a bundle of societal values.147 For the time being, we need to understand that implementing the concept of ʿadl for property in general would mean that the rights and responsibilities of a property owner are extensions of each other.148 In other words, any individual as khilafah of Allah has to submit to whatever restrictions that are designed to promote social welfare.

Accordingly, regulating the institution of property from an Islamic perspective has to take into consideration economic and social values that not only ensure fairness within the institution of property, but ensure the fairness of property itself. In other words, for the institution of property to be fair, the public system of rules should be designed so as to make sure that the rights of owners do not impinge on the greater public good, particularly, in terms of fair distribution of wealth and equality of opportunity. John Rawls argues that:

The primary subject of justice is the basic structure of society, or more exactly, the way in which the major social institutions [e. g. property] distribute fundamental rights and duties (emphasis added)149

What is the first step towards ensuring the fairness of the institution of property from an Islamic perspective?

In this context Muhammed al-Bahi 150 notes that Islamic Shari’a perceives the allocation of resources for public welfare as a fundamental part in the function of wealth within society.151 The operation of such function is dependent in the main on a belief that wealth is a gift from Allah, and it has to be employed to serve His cause.

145 Qutb, above n 123, 26-27. 146 Mahmud Shaltut, al-Islam ‘aqeda wa Shari’a (Dār al-Shuruq 2001) 445. 147 Ibid 29. 148 Muhammad Hashim Kamali, ‘Fundamental Rights of the Individual: An Analysis of (Haq) Rights in Islamic Law,’ 10, no. 3 The American Journal of Islamic Social Sciences, 341-366 (1993). Cited in Azmi, Intellectual Property and Islam, above Ch 1n 12, 203. 149 John Rawls, A Theory of Justice, above n 96, 6. 150 Islamic scholar and former minister of religious affairs in the Egyptian Government. 151 Muhammed al-Bahi, al-Dīn wa al-Dawla (Wahba Library, 1980) 122

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The best way to do that is by sharing this wealth with the rest of ummah (society), especially with the destitute.152 This is not to say that everybody has to have equal shares of the wealth appropriated by others, but that the exercise of ownership rights over wealth has to benefit society collectively. 153Al-Bahi‘s view resembles modern concepts of social justice. For instance, Rawls argues that ‘while the distribution of wealth and income need not be equal, it must be to everyone's advantage’154

Social justice in the realm of property takes the form of the re-allocation of resources or what is known as distributive justice.155 This takes place through state intervention to redirect economic resources in a fair manner that benefits the public at large. Distributive justice, put simply, means that wealth is not the absolute private property of an individual, it belongs to society collectively.

Perhaps the strongest argument against the adoption of distributive justice rhetoric is the notion of moral desert, which posits that a person deserves to own whatever she creates, develops or combines. Islamic Shari’a recognises the concept of moral desert and accepts granting individuals ownership rights based on their work as discussed above with regard to ihya’ al-mawat.156 However, the principle of khilafah limits the scope of moral desert, particularly for purposes related to the public interests and public welfare. In other words, moral desert from an Islamic perspective does not lead to undermining of a fair re-distribution of wealth. Rawls, as well, rejects the rigid understanding and application of the principles of moral desert. He argues that:

There is a tendency for common sense to suppose that income and wealth… should be distributed according to moral desert... Now, justice as fairness rejects this conception. Such a principle would not be chosen in the original position.157

In explaining his rejection of any absolute adoption of ‘moral desert’ principle, Rawls states that:

[It] is one of the fixed points of our moral judgments that no one deserves his place in the distribution of natural assets any more than he deserves his initial starting place in society…

152 Ibid 123 153 It is recognised in Quran that people might possess unequal amounts of wealth. The Qur’an (Sahih International trans) 16:71 ‘Allah has favored some of you over others in provision’ 154 John Rawls, A Theory of Justice, above n 96, 61. 155 John Rawls, A Theory of Justice, above n 96, 274-276 (ensuring distributive justice necessitates adjustments in the right of property (277) . 156 Chapter 3. 157 Rawls, above n 96, 273.

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The distributive shares that result [from an individual’s work] do not correlate with moral worth, since the initial endowment of natural assets and the contingencies of their growth and nurture in early life are arbitrary from a moral point of view.158

Likewise, according to the Islamic concept of khilafah, wealth is a gift from Allah to individuals. Labouring to appropriate wealth justifies establishing ownership rights, but does not stand as a valid reason to reject re-distribution arrangements for the greater public interest.

From an Islamic perspective, the concept of distributive justice takes the form of what is known as takaful (solidarity or commonality). The Arabic term takaful comes from the root word (tafa’ul), which literally means mutual interaction. In social justice context it connotes a meaning of joint responsibility.159

The renowned Islamic scholar Imam Mahmud Shaltut understands takaful to mean shared collective responsibility by which each member of the society is responsible for the other members in a way that practically contributes to the public welfare.160 Applying this understanding to property means that: a) individuals who possess wealth (especially in the form productive wealth) have responsibility towards society; and b) the state has a religious responsibility to ensure that wealth is not unfairly concentrated among a few individuals or entities, and that it is duly distributed for the benefit of the larger public.

Throughout the jurisprudence of Islamic Shari’a, several manifestations of takaful could be found, including:

Nafaqa (mandatory alimony).161 According to the system of nafaqa, relatives could be financially responsible for each other.162 Imam Al-Qaradawi, argues that if family are allowed to inherit wealth from each other, it would be a matter of ʿadl (justice) to make them responsible for sharing a portion of their wealth among their poorer relatives.163

158 John Rawls, A Theory of Justice (Harvard University Press, reprinted 1999) 274 159 Al-Qaradawi, al-takaful, above n 106, 7. 160 Mahmud Shaltut, al-Islam ʿaqīda wa Shariʿa , above n 146, 436. 161 Suliman Fariq, Faroqi’s Law Dictionary: Arabic t- English (Librairie du Liban, 1983) 357 162 Al-Qaradawi, al-takaful, above n, 106, 24. 163 Ibid.

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Waqf (religious endowment) is a charity institution in Islamic Shari’a by which the title to an owned asset is locked up for a specific purpose or purposes.164 The most significant characteristic of waqf is perpetuity, where the benefits of certain subject matter are directed in favour of the general public for unlimited period of time.165 Waqf is an essential aspect of the concept of takaful wherein the rich among Muslims, motivated by the promise of great reward in the Hereafter, allocate a portion of their wealth to provide services to the rest of the community.166 In this way it assists in re-distributing wealth in the interest of the society collectively. With its ubiquitous presence in Islamic societies, the institution of waqf contributed in promoting socio-economic development by providing funds to educational institutions, health centres and infrastructure projects.167

The most important aspect of takaful and social justice in Islamic Shari’a is the institution of zakat (almsgiving). The word zakat comes from the root word (zakka). It is used in the Qur’an to mean purity and increase.168 According to the institution of zakat each Muslim who has wealth over a certain amount is obliged to annually give 2.5 % (in some instances up to 10 %)169 of his wealth to the poor and needy.170 Zakat is the second of the five pillars of Islamic faith and it has transformed the concept of charity into an obligation that is endowed with religious sanctity.171 This is evident from the relevant verses in the Qur’an which impose the obligation of zakat.172

Zakat plays a significant role in realisng the doctrine of distributive justice.173 It aims to promote a spirit of cooperation and collaboration between two sectors of society:

164 Abul Hasan M.Sadeq, Waqf, perpetual charity and poverty alleviation, (2002) International Journal of Social Economics29. 1139 165 Ibid. 166 Hasan, Samiul, ‘Islamic Concept of Social Justice: Its Possible Contribution to Ensuring Harmony and Peaceful Coexistence in a Globalised World’ (2007) Macquarie Law Journal Vol 7 , 175. 167 Ibid 137-140. 168 The Quran (Sahih International trans) 9:103. 169 Al-Qaradawi observes that in agricultural products zakat might varies between 5 up to 10 pecent depending on the degree of human intervention in the production process, Yūsuf al-Qaradawi, Dawr al-Qiyam, above n 120, 381. 170 Quran defines the due recipients of zakat in The Quran (Sahih International trans) 9:60. Zakah expenditures are only for the poor and for the needy and for those employed to collect [zakah] and for bringing heartsarts together [for Islam] and for freeing captives [or slaves] and for those in debt and for the cause of Allah and for the [stranded] traveler - an obligation [imposed] by Allah . 171 Al-Qaradawi, al-takaful, above n 106, 28 and Hartly Dean and Zafar Khan, ‘Muslim Perspective on Welfare’ (1997) Journal of Social Policy: Cambridge University Press, 197. 172 The Quran (Sahih International trans) 6:141 and 51:19. 173 Hasan Samiul, ‘Islamic Concept of Social Justice’, above n 166, 173.

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the rich and the poor.174 The wealthy members of society share some of their wealth with the destitute, so they can obtain an opportunity to appropriate wealth for themselves. For this reason the best approach to giving zakat is to assist the destitute to establish an independent business instead of giving them money.175

Muhammed Shalabi notes that the head of state (wali al-amre) can ensure the implementation of distributive justice through zakat. 176 He cites a hadīth of the Prophet (PBUH) which encourages wealthy Muslims to share some of their wealth with the needy, and warns that those who do not share some of their wealth may incur severe punishment. Muhammed Shalabi uses this hadīth to argue that the head of state is allowed to take more than the usual amount of zakat to ensure a fair distribution of resources within the Muslim society.177In this sense the institution of zakat ‘serves the cause, not of charity, but of social justice’178 (emphasis added)

Considerations of social justice are an inseparable part of the Islamic approach to the regulation of property;179 they carry more weight than the considerations surrounding the protection of private property (ie economic efficiency).180 Here, Islamic Shari’a intersects with Rawls contention that ‘a society is well-ordered when it is not only designed to advance the good of its members but when it is also effectively regulated by a public conception of justice.’181

Accordingly, notions which contradict the underlying wisdom of the Islamic approach to social justice and which lead to the excessive concentration of wealth are strongly condemned. Muslim Scholars refer to monopoly as an undesirable approach to generating wealth as it connotes a sense of selfishness and greed.182

174 Muhammed M. Shalabi, al-Fiqh al-Islami: Tarīkhuhu wa Madārisahu wa Nazareyatuhu: al Mulkiyyah wa al-ʿaqd (al-Dār Al-jāmi’iyya, Beirut, 1985) 295. 175 Hasan Samiul, ‘Islamic Concept of Social Justice’, above n 166, 173. 176 Shalabi, al-fiqh al-islami above n 174, 295. 177 Ibid. 178 Hartly Dean and Zafar Khan, above n 171, 198. 179 The limitations which Islamic Shari’a impose on the property owner for redistribution purposes are considered to be rights for the less advantaged in society. For more on this see: Abd al-samiʿ al-Masri, ʿadalat Tawziʿ al-Tharwa fi al-Islam (Maktabat Wahba, 1986) 114 180 Hasan Samiul, ‘Islamic Concept of Social Justice’, above n 166, 172. 181 Rawls, A Theory of Justice, above n 96, 4. In other place Rawls argues that ‘the principles of justice are prior to considerations of efficiency and therefore, roughly speaking, the interior points that represent just distributions will generally be preferred’ at 69. 182 Yūsuf al-Qaradawi, Dawr al-Qiyam, above n 120, 295 and Qutb, above n 123, 101.

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Social justice in Islam is based on the concept of takaful, which encompasses values and ideals such as compassion, cooperation and sharing. These values and ideals are at the core of the concept of distributive justice.

Qutb asserts that policymakers and legislators should look not to the formalities of takaful, but to its underlying principles.183 This means that the ideals and values of takaful have to be woven into the structure of the laws and institutions of the state, among which is the institution of property.184 In the same context, al-Qaradawi states that it is the duty of the state to ensure that the values and the ethical ideals of Islamic Shari’a are transformed into practical laws and regulations, and to establish institutions and devices to guard and promote these ideals and values.185 How this can be reflected in the sphere of IP?

In order to be responsive to the values of takaful and social justice in Islam, the rules and doctrines of the IP system should reflect third-party interests in a clearer and more robust manner. This should take place by embracing reforms and policies oriented toward wider distributional features and general fairness considerations, not only within the IP system, but of the system itself. How this should be done?

Admittedly, there is no short answer to this question. However, the starting point would be to recognise injustice and inequality in the current IP systems, which are so clear as to be deniable. It is widely accepted that the mindset of policymakers is prone to tailoring legislative, judicial and administrative policies on IP which in the main follow the unproven economic assumptions and underlying protocols of the big corporates. In most cases, this leads to an excessive concentration of private powers and exclusion of users from the cultural and knowledge domains.186

Within IP systems, the cause of concentration of private powers and excessive exclusion of users from IP laws has been attributed, in large part, to the historical under-representation of users in the development of IP laws and policy. From the introduction of the first IP law, the focus of the system has primarily been on the interests of authors and owners, a perspective which has persisted through subsequent legislative developments of IP laws to the present day.

183 Ibid 118. 184 Ibid. 185 Yūsuf al-Qaradawi, Dawr al-Qiyam, above n 120, 418. 186 William Patry, How to Fix Copyright (Oxford University Press, 2011) 52.

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As Niva Elkin-Koren argues regarding copyright, the major stakeholders in copyright systems are ‘small, homogeneous, well-organized, and well-financed … representing the entertainment, software, and publishing industries’. For decades, they have successfully ensured that copyright laws are crafted so as to prioritise their interests. In contrast, those who use the knowledge and culture embodied in copyright works, though large in number, are heterogeneous, and have not been effective in adequately embedding their interests and needs into copyright policy and law.187 Commenting on the lack of representation of users in copyright doctrine, Julie Cohen argues that an appropriate balance of interests can be achieved only if the interests of users, in addition to those of authors, are accommodated in the theoretical foundations of copyright.188

An IP regime that is more faithful to social justice considerations will distribute the fundamental rights and duties of IP holders and users in different manner to the dominant system. A fair IP regime will not only be designed according to economic considerations but also in a manner that does not lead to the excessive concentration of private powers and does not impinge on the equality of opportunity of third parties. Fair IP laws, as Lateef Mtima and Steven Jamar aptly argue ‘should be crafted and administered so that marginalised and disadvantaged groups, ‘the others’ can participate more fully in the social, cultural, and economic contributions and benefits that flow from IP protection’.189

As a start, one might say that an IP system that is compatible with the principles of khilafah, non-concentration and social justice would be structured according to the following:

 The establishment of a legal environment where a wide range of creative works can be legally shared with others who can then build upon them. This will prevent concentration and promote wide distribution of intellectual goods.

 Support for the establishment of a richer public domain by providing an alternative to the restrictive and expansive exclusive rights of IP owners.

187 Niva Koren, ‘Making Room for Consumers under the DMCA’ (2007) 22 Berkeley Tech. L.J, 1154. 188 Julie E. Cohen, ‘The Place of the User in Copyright Law’ (2005) Fordham L. Rev. 347-48. 189 Lateef Mtima and Steven D. Jamar, ‘Fulfilling the Copyright Social Justice Promise: Digitizing Textual Information’ (2010) New York Law School Law Review, Vol. 55, No. 1, 108.

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 Distributive concerns and individuals' autonomy should be reflected in the IP system by conceptualising, developing and further enhancing the functions, capacities and legal rights of users within IP system.

 Promote cooperative modalities of knowledge management and production to help promote distributive justice and knowledge dissemination.

Chapter 6 introduces concepts such as the public domain, user rights, collective action and open access which can assist in reducing the negative impacts of knowledge concentration under the current system and allow for wider distribution of knowledge and cultural production.

5.3.4 Doctrine of the Abuse of Rights in Islamic Shari’a

As discussed above, under the concept of khilafah, absolute ownership is not recognised in Islamic Shari’a. Rather, it is tied to the concept of accountability; by which humans as khalifa of Allah have to exploit their property in conformity with the dictates of Islamic Shari’a. The most relevant and direct among these dictates are Islamic Shari’a’s constraints on the exercise of property rights when they result in harm to public or legitimate private interests. These restrictions are contained in the Islamic Shari’a’s doctrine of abuse of rights (su isti'mal al-Haq) or wrongful exercise of rights (ta 'asuf fi isti'mal al-Haq).

A detailed explanation of the doctrine of abuse of rights in Islamic Shari’a is beyond the scope of this thesis. However, this section will explain the doctrine to the extent needed to understand its ramifications for regulating IP from an Islamic perspective. The basic rule of the doctrine is that when the exercise of a right impinges on the public interest, it should be considered as an abuse and non-exercise of the right should be decided.

Contemporary scholar Fathi al-Dirini was among the first modern Muslim scholars to emphasise the importance of the doctrine of abuse of rights in striking the appropriate balance between private rights and public interests. 190 He initially established the existence of a comprehensive theory of abuse of rights in Islamic

190 Fathi Al-Dirini, nazariyat al-ta’asuf fi isti 'mal al-hagg (Muassasah al-Risalah, Beirut, 4th ed, 1988) 82.

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Shari’a by relying on interpretations of the Qur’an, the Sunnah and Islamic jurisprudence.191Then, al-Dirini put forward the following argument: a) Allah is the source of all rights. b) The main objective of Islamic Shari’a is preventing harm and securing the interests of society. c) The exercise of rights (including property rights) should not run afoul of that objective; accordingly; d) When the exercise of property rights conflicts with the public interest (eg education, public health and economic competition) the public interest takes precedence.192

In deciding how to prioritise public interests and private rights, there should be an objective weighing of the interest of the individuals, in exercising their private rights, against the public interest in limiting those rights. Where exercising the private right leads to the promotion of the individual’s interest and, at the same time, leads to equal or stronger harm to the public interest, then the public interest should prevail. In this context, al-Dirini refers to ihtikar (monopoly) as an application of the mentioned analysis. Islamic Shari’a prohibits ihtikar because it undermines the public interest in the wide availability of goods and services, in favour of individual interests.193

A thoughtful application of the doctrine of abuse of rights in Islamic Shari’a would assist in striking a balance between the exclusive rights of the IP holder and the public interest, and thereby contribute to an IP system that is more responsive to the sources and objectives of Islamic Shari’a.

As discussed in Chapter 4, if the current system of IP does not adequately serve the public interest due to its rights-centric approach, which leads to blocking needed access to educational material and essential medicine and slows the economic growth of developing nations, then this rights-centric approach should be rethought using the

191 Ibid, 92 to 176. Among the important sources used by al-Dirini to articulate the theory of abuse of rights from Islamic perspective is the Shari’a principle which dictates that ‘harm must be eliminated’, which is based on Prophetic hadith, where the prophet is reported to have siad ‘harm may neither be inflicted nor reciprocated’ at p 117. 192 Ibid 40, 80 and 82. 193 Ibid, 280-289.

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doctrine of abuse of rights. Implementation of the doctrine can occur through various balancing measures such as doctrines of patent and copyright misuse, rethinking the scope of the exclusive rights of IP holders and promoting fair uses of IP protected materials, particularly in relation to education, research, national trade and public health.194

If the exercise of exclusive rights leads the IP holder to misuse his patent or copyright by employing anti-competitive practices (delay in exploitation of IP subject matters, refusal to license others to use the subject matter on reasonable commercial terms, selling IP subject matter at excessively high prices, etc) or to impinge on legitimate uses for educational and public health purposes, the doctrine can be used to justify state intervention to curb the exclusive rights as the public interest dictates. The next chapter discusses mechanisms introduced by contemporary IP scholars, which may assist policymakers in designing an IP system in which the chance of abusive behaviour by IPRs holders is minimised.

5.3.5 Dissemination of Knowledge

We saw in Chapter 3 that Islamic Shari’a strongly condemns the concealment of knowledge and preventing others from having access to it.195 The Prophet (PBUH) said ‘the one who conceals knowledge would appear on the resurrection day as reined in a bridle of fire’.196 We concluded that this condemnation might not include reasonable protection for knowledge created with human intervention.

However, the Islamic approach to encouraging believers to disseminate knowledge is unmistakable. For instance, it has been reported in the authentic hadīth book of Ibn Majah (d. 887 CE) that the Prophet said:197

1. The best of charity is when a Muslim man gains knowledge, then he teaches it to his Muslim brother;198and

194 Compare Ida Abdul Ghani Azmi, Intellectual Property Laws and Islam in Malaysia, above Ch 1 n 13, 289, 290 and 301. 195 See p 65. 196 Nasr al-Dīn al-Albani, Sahih al-Targhīb wa al-Tarhīb, above Ch 3 n 102, 29. 197 See also Sunan al-Tirmidhi hadith no 2685 on the dissemination of knowledge, al-Tirmidhi, al- Jami’ al-Sahih, http://ahadith.co.uk/sunanaltirmidhi.php 198 Sunan Ibn Majah, English Translation by Nasiruddin Al-Khattab (Dārussalam, 2007) 232

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2. The rewards of the good deeds that will reach a believer after his death are: Knowledge which he taught and spread ...199

The companions of the Prophet (PBUH) used to unconditionally disseminate whatever knowledge they had obtained from him.200 Scholars of Islam, in different eras, promoted the dissemination of religious knowledge by allowing their students to copy and disseminate their books free of charge.201 This might be considered an application of the principle of khilafah, by which, as we have seen, ownership of knowledge is attributed to Allah, and humankind are considered as trustees. Ali Khan states that:

It is important to understand that Muslims are the trustees, not the owners of protected knowledge [knowledge of Islam]... In fact, no concept of ownership applies to the knowledge- based assets of Islam, as it does to intellectual property. .. God has wisely placed the protected knowledge in a Trust. All human beings, including Muslims, are its beneficiaries.202

Additionally, we have seen in Chapter 3 the practices which existed in the ancient Islamic libraries in Cairo, Baghdad and Cordoba, where knowledge was freely circulated and the dissemination of knowledge was even encouraged by the state. How might the principle of dissemination of knowledge have a bearing on the IP system?

We have seen that the kind of exclusive rights conferred by the current IP system are excessively restrictive. Consquently, building new knowledge upon existing knowledge is increasingly difficult task. 203 Lawrence Lessing observes that the magnitude of knowledge ‘controlled by an exclusive right has never been as limited as it is today’.204 According to one commentator on IP and Islamic Shari’a ‘[the] excessive control of ideas borders on the prohibition of ‘concealment of ‘ilm’ [knowledge]’.205

199 Ibid 233 200 Yūsuf al-Qaradawi, al-Rasul wa al-ʿilm (Dār al-Sahwa, 2001) 79. 201 Ibid, 84 202 Ali Khan, ‘Islam as Intellectual Property ‘My Lord! Increase me in knowledge’ above Ch 3 n 24 650. 203 In Chapter 6 more example are given to demonstrate the massive expansion of IP laws in the past 30 years which resulted in commodifying the public domain and restricting users ‘ability to capitalise on knowledge and cultural products. 204 Lessig, the Future of Ideas, above n 139, 110. 205 Ida Abdul Ghani Azmi, ‘The Philosophy of Intellectual Property Rights over Ideas in Cyberspace’, above Ch 3 n 265, 205.

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Accordingly, an IP system that is more compatible with the principle of dissemination of knowledge in Islamic Shari’a would be less restrictive than the one currently in place. Rather, it would be a system in which greater access rights are granted to users, a richer public domain is promoted and modes of collaboration to produce more creative work are encouraged. As will be discussed below, many contemporary IP scholars have suggested reforms to the current system which might make it more compatible with the principles of Islamic Shari’a, particularly, Shari’a’s encouragement of the dissemination of knowledge.

In this context Professor Ida Abdul Ghani Azmi concludes that ‘dissemination of knowledge is encouraged, and in certain circumstances compulsory in Islam. [Therefore] there is a need to mediate between control of and access to ideas206 … thus ... any calls for the limitation of property rights over ideas on the basis of efficiency, justice and education as postulated by Lessig, Boyle, Netanel and several others...merit serious consideration by Muslim scholars’207

5.4 Conclusion: Implementable Standards‏

Islamic Shari’a recognises private ownership. This recognition can be extended to IP. However, consideration of the overall development needs and welfare of society carries more weight than the protection of private property rights. This is why Islamic Shari’a goes beyond incentive rhetoric.

There are various principles derived from the sources and objectives of Islamic Shari’a that should be observed in constructing a normative framework for a Shari’a- friendly IP system. These principles place significant emphasis on third parties’ interests against those of the IP owner. According to the abovementioned principles, Islamic Shari’a would support a system that is less restrictive than the current system. Rather, Islamic Shari’a supports an IP system that recognises distributive justice concerns, carefully monitors the exclusive rights of the IP owner, allows for wide dissemination of knowledge and cultural products and promotes modalities of knowledge and cultural production based on sharing and cooperation.

The principles of khilafa, non-concentration of wealth, social justice, abuse of rights and dissemination of knowledge under Islamic Shari’a can be employed as a

206 Ibid 204. 207 Ibid 203.

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normative framework to design an IP system and policies that are different from their dominant counterparts. These principles, if integrated into the fabric of future law and policymaking, will reduce the concentration of private power, empower users and contribute to greater openness and distribution of cultural and knowledge resources. Integrating Islamic Shari’a’s principles to achieve these objectives has the potential to promote the overall development and social welfare as Islamic Shari'a requires.208

Nevertheless, Islamic Shari’a does not inform us specifically how such a system should be constructed. It does dictate that in all matters of ambiguity, we should resort to the people of knowledge.209 People of knowledge are those whom are well- versed in their respective disciplines and aware of the associated problems and their potential solutions.210

For instance, Lawrence Lessig, Yochai Benkler, Jessica Litman, James Boyle, Margaret Chon, Neil Netanel, Peter Drahos, and others, could be considered the people of knowledge who might assist us in articulating an IP system which is more compatible with the principles of Islamic Shari’a.

Those scholars have criticised the current system of IP, with its unjust owner- centered approach and suggested legislative reforms and policy considerations that are more responsive to social justice needs and the public welfare especially of developing countries.211 In this, their suggestions hold enormous merit according to the principles of Islamic Shari’a.

208 Chapter 6 demonstrates how greater openness and distribution of cultural and knowledge resources can contribute to producing more intellectual products that can help in promoting development particularly due to their positive impact on access to educational materials and public health. 209 The Quran (Sahih International trans), 16:43 and 25:59. 210 Yūsuf al-Qaradawi, al-ʿaql wa al-ʿilm fi al-Quran al-Karim (Maktabat Wahba, 1996) 212. 211 See for instance Yochai Benkler who urged ‘to build new models based on fresh assumptions about human behaviour that can help us design better systems’ and ‘allow us to embrace our collaborative sentiments’ Yochai Benkler, ‘The Unselfish Gene’, above n 80 and James Boyle who argued in favour of public domain parallels the exclusive rights, James Boyle,’ The Second Enclosure Movement and the Construction of the Public Domain’(2003) 66 Law & Contemp. Probs. 33, Boyle argued that: ‘The public domain should have its Greenpeace, its Environmental Defense Fund, its Nature Conservancy, its Environmentally Concerned Scientists. In fact, organizations paralleling each of these functions are currently being created.’ 73; Peter Drahos who argues in favour of developing countries to ‘set efficient standards of protection for their economies’ Peter Drahos, ‘An Alternative Framework for the Global Regulation of Intellectual Property Rights’ (2005) Austrian Journal of Development Studie, 1 and Lawrence Lessig who proposed legislative reforms which aim at limiting the expansive scope of the current IP system (mainly copyright). For instance, he argues regarding the copyright term of protection ‘Every creative act reduced to a tangible medium is protected for upward of 150 years, whether or not the protection benefits the author. This work thus falls into a copyright

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The suggested legislative reforms and policy considerations aim at constructing an IP system that allocates rights and obligations on the basis of principles of fairness and justice. Such a system is not owner-centered system, but one which:

 promotes models of sharing, collaboration and participation;

 considers knowledge as a public good and, therefore recognises the rights of society in intellectual creations (a richer public domain);

 recognises the developmental needs of less affluent nations; and

 promotes recognition of an independent set of rights for users.

If Islamic Shari’a does not fully support the current IP system, it will support a system that considers the above propositions. The next chapter will identify the best possible policy measures for designing a Shari’a-friendly IP system.

black hole, unfree for over a century. The solution to this black hole of copyright is to force those who benefit from copyright to take steps to protect their state-backed benefit’ Lawrence Lessig, Future of Ideas : The Fate of the Commons in a Connected World, above n 139, 251.

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Chapter Six

A Road Map for a Shari’a-friendly IP System

6.1 Introduction

There are at least two main features that shape the Islamic conception of a fair and efficient IP system: a focus on development and on going beyond incentive rhetoric (which dominates IP law and policymaking) and the consideration of various principles based on the primary sources of Islamic Shari'a. These principles can operate as a normative framework for designing an IP system which recognises individuals’ ownership of ideas and expressions, but, at the same time, reflects fundamental values that promote public ownership, distributive justice and the wider dissemination of knowledge that underpins intellectual products.

This chapter considers IP policy measures and legislative reforms which are compatible with the principles of Islamic Shari’a. This is not to say that this chapter will invent a new IP system, rather, it will introduce comprehensive studies from the international IP jurisprudence which intersect significantly with Islamic Shari’a’s sources, objectives and principles.

These studies have been conducted through decades of interdisciplinary research by prominent international scholars in law, economics and other fields. The general theme of these studies recognises that the current IP system has contributed to an unfair concentration of knowledge resources and excessive restrictions on their use and re-use. Therefore, these studies proposed legislative reforms and policy measures oriented toward openness, fair distribution and greater dissemination of knowledge and cultural resources.1

1 Two leading scholars are arguing to the same end, Professor Lawrece Lessig and Yochai Benkler. Lessig points out to the concentration of culture production enabled by the current IP system. He states that ‘: Never in our history have fewer exercised more control over the development of our culture than now..... Never has the concentration been as significant as it is now’ Lawrence Lessig, 'Creative Commons' (2004) 65 Mont. L. Rev. 1 8-9; Benkler confirms Lessig’s observation and argues that a transformation towards openness as opposed to restrictiveness of the current IP system ‘will lead to substantial redistribution of power and money from the twentieth-century producers of information, culture and communications – like Hollywood, the recording industry and the

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As will be noted throughout this chapter, these legislative reforms and policy measures overlap with each other. However, they all aim at alleviating the negative impact of the current IP system and promoting development and social justice.

This chapter argues that if the principles of Islamic Shari’a promote public ownership, distributive justice and wider dissemination of knowledge, it follows that an optimal IP system from an Islamic perspective should encompass reforms and policy recommendations that promote these objectives. There are at least four broad policy directions that intersect with the Islamic perception of an optimal IP system: (1) an expansion of the public domain, (2) enhancement of functions, capacities and legal rights for users of knowledge resources, (3) active promotion of alternative modalities of cultural and knowledge production and (4) embracing the Access to Knowledge (A2K) movement.

Various international initiatives and declarations, signed by hundreds of IP scholars and experts, affirm that current IP law and policymaking on international level, particularly through FTAs, tend to design and develop IP laws that mainly serve private interests. They urge a consideration of alternative policies to promote the public domain, the rights of users of IP and alternative modalities of regulating and managing knowledge and cultural production and dissemination. These alternative policies, they contend, have greater potential to reorient IP laws to serve a wide array of human needs in promoting access to education, access to medicine and overall development and public interest.2

The following sections explain how expanding the public domain, IP users’ rights, alternative modalities of knowledge and cultural production and A2K can be taken as policy consideration to design a Shari’a friendly IP system.

telecommunications giants – to a widely diffuse population around the globe’. Yochai Benkler, ‘Freedom in the Commons’ (2003) 52 Duke Law Journal, 1249 and Yochai Benkler, The Wealth of Networks How Social Production Transforms Markets and Freedom (Yale University Press, 2006) 23. Many other scholars, such as: James Boyle, Jessica Litman, Julie Cohen, William Patry and Peter Suber argue to the same end as will be discussed throughout this chapter. 2 Development Agenda for WIPO, (2007) ; Global Congress Declaration on Fundamental Public Interest Principles for International Intellectual Property Negotiations (2013) Washington Declaration on Intellectual Property and the Public Interest (2011) http://infojustice.org/washington- declaration-html; The Public Domain Manifest, < http://www.publicdomainmanifesto.org/node/8>; The Europeana Public Domain Charter (2010) http://pro.europeana.eu/c/document_library/get_file?uuid=d542819d-d169-4240-9247- f96749113eaa&groupId=10602

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6.2 Expanding the Public Domain

The first policy measure to be considered in designing a Shari’a-friendly IP system is to recognise and expand the public domain of knowledge and culture. The main features of the public domain are the public ownership of ideas and expressions and their free circulation and dissemination. Therefore, an expanded public domain promotes the main principles of Shari’a outlined in Chapter 5, particularly, stewardship, non-concentration of knowledge and Shari’a principle on encouraging the dissemination of knowledge.

There is no agreement as to what constitutes the public domain.3 Is there one or many? 4 Regardless of the angle from which the public domain is considered, openness appears to be the prevailing value. 5 The main character of the public domain is the freedom to use ideas, information and culture around you for self- awareness or self-actualisation. It is not only the realm of works in which rights have expired or which were never worthy of IP protection, rather it is the means through which the entire system works.6 It is the place where the raw materials for authorship

3 One of the earliest works on public domain is that of William Krasilovesky in 1967. William Krasilovesky ‘Observations on Public Domain’ (1967) 14 Bull Copyright Soc'y USA, 205. Followed by path-breaking article for David Lang in which he suggested to articulate a unified theory for the public domain. David Lang ‘Recognizing the Public Domain’ (Autumn, 1981) Law and Contemporary Problems, Vol. 44, No. 4, pp. 147-178; another work on the public domain is that of Professor Jessica Litman where she highlighted the importance of public domain in copyright law through the concept of authorship, Jessica Litman, ‘The Public Domain’ (1990) 39 Emory L. J. 965 4 Professor Pamela Samuelson specifically investigated whether there is one or multiple public domains, Pamela Samuelson, ‘Enriching Discourse on Public Domains’ (Feb., 2006) Duke Law Journal, Vol. 55, No. 4, pp. 783-834, she observed that ‘scholarly literature predominantly assumes there is only one’ at 783 (scholars that believe in one domain include David Lang, ‘Recognizing the Public Domain’, above n 3. Nevertheless, Samuelson surveyed the writings on public domain and pointed out that ‘[at] least thirteen definitions or conceptions of the public domain are evident in [the] literature’ at 789 Professor Samuelson concluded that ‘[the] definitions cluster around three main foci: the legal status of information resources, freedoms to use information resources, and the accessibility of information resources’ at 816. 5 Scholars and commentators who wrote on public domain overwhelmingly criticise the current expansion of IPRs to new subject matters. Their proposals and policy recommendations call for openness as a countervailing force against commodofication of knowledge and culture. The legal umbrella under which their proposals and recommendations are framed is a concept of public domain. See for instance, David Lang, ‘Recognizing the Public Domain’, above n 3, 150; Lawrence Lessig, ‘Re-Crafting a Public Domain’ (2006) 18 Yale J.L. & Human. 56, 56; Edward Samuels, ‘Public Domain in Copyright Law’(1993) 41 Journal of the Copyright Society, 137, 138; Edward Lee, ‘The Public’s Domain: The Evolution of Legal Restraints on the Government’s Power to Control Public Access Through Secrecy or Intellectual Property’ (2003) HASTINGS LAW JOURNAL, 97; Christopher May, ‘Between Commodification and ‘Openness’: The Information Society and the Ownership of Knowledge’ (2006) Journal of Information, Law and Technology, 9. 6 Jessica Litman, ‘The Public Domain’, above n 3, 968.

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and inventiveness are to be found. On these bases, IP theory must recognise the public domain. 7 For recognising the public domain would contribute to wide availability of raw materials for innovation and creativity, which are the fuel for progress and development

This section does not provide a comprehensive theory on the public domain. However, it provides various examples of how the free zone of knowledge and culture could be expanded without undermining the essence of IP protection. In order to expand the public domain, policymakers should aim at preventing the undue blurring and displacement of important materials from the public domain, introduce reforms to some aspects of the IP system and consider supplementary mechanisms to IP to provide creators of intellectual goods with incentives and, at the same time, place ideas and expressions into the public domain.

6.2.1 Anti-enclosure Policy

IP rights are expanding and unduly locking up a great deal of knowledge and culture into closed zones. James Boyle describes the expansion of IP protection as ‘second enclosure movement’.8 His description refers to ‘the sarcastic ridicule expansions’ of IP protection that took place in the 1970s and 1980s and that are still taking place to the very moment.9 Julie Cohen, who fundamentally criticises extending IP protection ‘in length, breadth, depth, and strength’, 10 describe such expansion as a ‘commodification’11 of culture and knowledge and warns that it has the potential to squeeze creativity to the margins12 because, as Lessig observes, it does not respond to ‘the logic of incentives, but to the dynamics of political power’.13

7 David Lang, ‘Recognizing the Public Domain’, above n 3, 150, in this context, Lang argues that: [Intellectual] property theory must always accept something akin to a ‘no-man's land’ at the boundaries; doubtful cases of infringement ought always to be resolved in favor of the defendant...no exclusive interest should ever have affirmative recognition unless its conceptual opposite is also recognized. Each right ought to be marked off clearly against the public domain. 8James Boyle, ‘The Second Enclosure Movement and the Construction of the Public’ (2003) Law and Contemporary Problems, 140; The first enclosure movement refers to the enclosure of the arable commons that took place in England in the 17th century. 9 Ibid 47. 10 Julie E. Cohen, Copyright, ‘Commodification, and Culture: Locating the Public Domain in Copyright’ in L. Guibault & P.B. Hugenholtz, The Future of the Public Domain: Identifying the Commons in Information Law, (Kluwer Law International, 2006) 159. 11 Ibid 121. 12 Ibid 159. 13Lawrence Lessig, ‘Re-Crafting a Public Domain’ above n 5, 65.

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There are various examples which demonstrate that knowledge and culture are increasingly extracted from the public domain and are being excessively privatised contrary to the public interest. Tracing all the relevant examples goes beyond the scope of this chapter. Therefore, this section introduces several examples that are widely debated in the IP literature on the unjustifiable expansion of IP rights and closes with useful recommendations for alleviating the negative impacts of such expansion.

6.2.1.1 The State of Play

The commons of facts and ideas, which were 20 years ago conceived by scholars as unprotectable, is being enclosed within circles of copyright, patent, trademarks and sui generi systems.14 James Boyle wonders:

Should it be the second enclosure movement? Do we know that property rights in this sphere will yield the same surge of productive energy that is claimed for the enclosure of arable land? There, I think the answer is a resounding ‘No.’15

In a more recent work, Boyle has suggested that the original principle of balance between knowledge which should stay in the public domain free for all to use and that which could be privatised has been lost in 30 years of exponential expansion of IP.16 The absence of such balance, Boyle maintains:

[Is] just as worrisome as the costs of piracy that so dominate discussion in international policymaking. The contemporary attitude seems to be that the public domain should be eliminated wherever possible.17

No reasonable empirical evidence is put forward to justify the economic efficiency of creating a new species of IP or expanding existing systems. Rather, it is only belief that is used to justify this policy, without evidence. It therefore constitutes policy without balance. 18 This belief seems to have been built essentially upon overstated incentive rhetoric, which contends that to promote IP is automatically to

14 James Boyle, ‘The Second Enclosure’, above n 8, 39. 15 Ibid 49 Professor Boyle affirms that ‘second enclosure movement should bother people across the ideological spectrum, from civil libertarians to free marketeers; the world of the artsarts and sciences should be particularly interested in the process.’ At 50 16 James Boyle, ‘A Manifesto on WIPO and the Future of Intellectual Property’ (2004) Duke Law & Technology Review, 1. 17 Ibid. 18 James Boyle, The Public Domain: enclosing the commons of the mind (RSA 2010) Available online at: http://www.youtube.com/watch?v=TomFHHxXC4U

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promote innovation and ‘the more rights the better’. Such rhetoric is not always true and in some cases ‘categorically false.’19

Since the conclusion of the TRIPs Agreement, the US model of IP protection has had greater influence on international policymaking regarding the standards of IP. 20 Therefore, I will briefly introduce examples from the US involving the expansion of IP to new subject matter, and outline the way IP scholars from the US have rejected such expansion and urged the implementation of what can be termed ‘anti-enclosure’ policy which is more responsive to the principles of Islamic Shari’a than any other protectionist approach towards IP. This is because such policy promotes the principles of stewardship, non-concentration of knowledge and knowledge dissemination as Islamic Shari’a dictates.

Edward Samuel documents how the American Legislature enclosed new subject matter from the public domain behind firewalls of copyright protection.21 In 1790, copyright protection was granted only to maps, charts, and books. Through the years, the list has been extended to contain, inter alia, historical and other prints (1802), musical compositions (1831), dramatic compositions (1856), photographs (1865), paintings, drawings and statuary (1870), lectures and motion pictures (1909), sound recordings (1971), pantomimes and choreographic works (1976) and computer programs (1980).22 Samuel comments:

With each extension of the federal statute into new subject matter, there has been a diminution in works that are treated as part of the public domain, to the point where there are few subject matter categories that are automatically considered as part of the public domain.23

Nevertheless, the list is likely to continue to encompass even more new subject matter in other provinces of IP. For instance, after the introduction of the European

19 James Boyle, ‘A Manifesto on WIPO’, above n 16, 2. 20 See p 116 for explanation for the role of US and other developed countries in process of Standard- setting of the current international IP system. 21 Edward Samuels, ‘Public Domain in Copyright Law’ (1993) 41 Journal of the Copyright Society, 163. 22 Ibid 164. 23 Ibid. Professor Siva Vaidhyanathan demonstrated in detail how copyright major industry such as entertainment industry exploit the exponential expansion of copyright to suppress culture and Fiqht new inventions, Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity (NYU Press, 2001) 187.

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Directive 96/9 for the protection of databases,24 there have been attempts in the US to introduce IP rights over mere compilations of facts. 25 These attempts were criticised by number of US IP scholars. Pamela Samuelson argues that a database is a mere compilations of facts, which according to the Supreme Court are ‘not just unprotected by the Copyright Act of 1976, but unprotectable as a matter of constitutional law’.26 This is because this kind of work does not qualify its makers as ‘authors’ as it lacks the creative originality which deemed as a sine qua non of any IP protection.27 James Boyle questions the economic efficiency of introducing a sui generis database right as it will negatively affect ‘the flow of information to markets, and inhibit research and innovation’.28

Even more troubling is the Digital Millennium Copyright Act’s (DMCA) anti-device provisions. These provisions are known as Digital Rights Management (DRM). They grant copyright holders the right to decide whether the content can be copied, or how often; they control for how long the content may survive; they control the possibility of sharing the content with other users and whether the content can be transformed.29 Lawrence Lessig and Julie Cohen argue that the widespread deployment of DRM will effectively remove content from the public domain and deny the public the right to practice their free culture. They suggest this is the result of the insensitivity of the technical environment (in which DRM operates) to the legality or otherwise for

24 European Parliament, Directive 96/9/EC on the Legal Protection of Databases (11 March 1996) Available online at: http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996L0009:EN:HTML 25 James Boyle, ‘The Second Enclosure’, above n 8, 39. He refers to Collection of Information Antipiracy Act, S. 2291, 105th Cong. (1998); Database Investment and Intellectual Property Antipiracy Act of 1996, H.R. 3531, 104th Cong. (1996), Similarly, Professor Jolie Cohen criticises US courts for implementing the idea-expression dichotomy in a manner that favours copyright protection where protecting the public domain should be considered, she states that: Conventional wisdom holds that rights of access to cultural raw material are preserved by the ‘idea- expression dichotomy’ and its corollary principles of merger and scenes a faire, but this access is more myth than reality. Courts interpreting the idea-expression dichotomy increasingly use merger as a limiting principle, and therefore extend copyright protection to anything for which variation was possible. Thus, one federal appeals court has held that a technical practice encoded in software cannot be considered scene a faire unless the plaintiff copyright owner also experienced it as dictated by industry standards, a rule that would preclude Standard status for anything newly developed. Cohen, ‘Locating the Public Domain’ above n 10, 160-161. 26 Pamela Samuelson, ‘Enriching Discourse on Public Domains’, above n 4, 792, James Boyle, Manifesto, above n 16, 2. 27 Ibid, 93. 28 James Boyle‘A Politics of Intellectual Property: Environmentalism for the Net’ (1997) Duke Law Journal Vol. 47, 114 29 Lessig, ‘Re- Crafting the Public Domain’, above n 5, 62.

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accessing the content.30 In other words, DMCA’s DRM practically ‘encloses’ works from the public domain in the realm of copyright protection, so that if someone tries to circumvent DRM to view (even lawful) content, he might be prosecuted for doing so, and therefore liable as if he were a copyright infringer.31

Similarly, patent laws have expanded to enclose what was deemed for a long time to be ‘common knowledge’.32 This is because the requirements of patentability are not being read in light of the historical rational for patent protection, but rather on an unproven faith that the more protection there is, the better.

Graeme Dinwoodie and Rochelle Dreyfuss, along with other commentators, observe that the standards of ‘novelty and non-obviousness’, which are supposed to prevent patenting when a person of ordinary skills in the art could have arrived at the claimed invention, are declining.33 They point to decisions by the Federal Circuit, the effects of which are making ‘examiners realize that putting known information together can be an inventive process.’34 They contend that the erosion of the standard of non-

30 Cohen,’ Locating the Public Domain’, above n 10, 122 -123, Lessig, ‘Re- Crafting the Public Domain’, above n 5, 62- 63. 31 In the context of outlining DRM’ s negative impact on our culture, Professor Lessig states that: Today, the practice of free culture happens, albeit against the law. Tomorrow, the practice will simply not happen. The difference is not a difference in the legal authority given. The difference is a product of the technical environment within which those permissions are granted. In a line, the code will then make the law effective by making it effectively impossible for anyone to ignore the law. Lessig, ‘Re- Crafting the Public Domain’, above n 5, 63. 32 James Boyle, ‘The Second Enclosure’, above n 8, 39 and Graeme Dinwoodie and Rochelle Dreyfuss summarise how the expansion took place in the decisions of US Supreme Court, they argue: The first change is in the coverage of patent law: the Supreme Court’s decisions in Diamond v. Chakrabarty (on the patentability of bioorganisms) and Diamond v. Diehr (on computer software),49 along with the Federal Circuit’s decision in State Street Bank v. Signature Financial Group (on business methods), have combined to extend patent protection to new subject matter. That is, in earlier eras, end-products were considered the sole subjects of patent protection…For example, in Funk Bros. Seed Co. v. Kalo Inoculant Co., the Supreme Court held that packets containing mixtures of bacteria were ‘no more than the discovery of some of the handiwork of nature and hence unpatentable;’. Graeme Dinwoodie and Rochelle Dreyfuss, ‘Patenting Science Protecting the Domain of Accessible Knowledge’ in L. Guibault & P.B. Hugenholtz, The Future of the Public Domain: Identifying the Commons in Information Law, (Kluwer Law International, 2006) 10.

33 Ibid 11 and Dan Burk and Mark Lemley, ‘Policy Levers in Patent Law’ (2003) 89 VA. L. REV, 1575. Burk and Lemley give example to show how standards of non-obviousness are being narrowly read regarding biotechnological inventions ‘the Federal Circuit has gone to inordinate lengths to find biotechnological inventions nonobvious, even if the prior art demonstrates a clear plan for pro-ducing the invention’ at 1593; Rebecca S. Eisenberg, ‘Obvious to Whom? Evaluating inventions from the Perspective of PHOSTIA’ (2004) Berkeley Technology Law Journal, 889. 34 Graeme Dinwoodie and Rochelle Dreyfuss, above n 32, 11, and James Boyle, refers to a more recent decision by The Supreme Court which held that the Court of Appeals for the Federal Circuit made ‘non-obvious’ too easy a Standard to meet. KSR Int’l Co. v. Teleflex Inc., 550 US. 398 (2007) See James Boyle, ‘What Intellectual Property Law Should Learn from Software’ (2009) The Communications of the ACM, 76.

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obviousness is contributing to the withdrawal of information that, effectively, was already in the public domain by granting patent protection to minor innovations and marginal improvements on existing patents, which in turn leads to extending the effective duration of patents that are about to expire.35

Moreover, the Federal Circuit attributes a low level of skill to people of ordinary skills, which ‘creates other problems for the system’s effect on progress’36 as this might lead to granting patents to innovations with low quality of inventiveness.37

In the same context, Robert Merges argues that patents are now being stretched to new subject matter which was once thought to be ‘too purely mathematical’ or ‘too abstract’ such as software programs and business methods.38He argues that if the patent system is to remain faithful to its rationale ‘to protect technology — actual machines, devices, and new chemical compositions — rather than pure concepts’, such subject matter would not be protectable.39

35 Graeme Dinwoodie and Rochelle Dreyfuss, above n 32, 12- 18. In dealing with this issue they propose two measures:  ‘If the goal for non-obviousness in preventing public domain information from being privatised the standards of non-obviousness should be re-invigorated’, 18.  ‘If the goal for nonobviousness is to prevent known material from being privatized, the level of skill attributed to persons in the art could then be raised’ 20. 36 Ibid, 12. 37 Ibid, Dinwoodie and Dreyfuss cite Rebecca Eisenberg who proposes a solution for this issue by suggesting a Standard measures for obviousness according to a person ‘with an ordinary level of inventiveness in the art’ instead of ordinary skills in the art, 20. 38 Robert Merges, ‘As Many as Six Impossible Patents before Breakfast: Property Rights for Business Concepts and Patent System Reform’ (1999) 14 Berkeley Tech. L. J. 577-589, 578, in the same context see James Boyle, ‘What Intellectual Property Law Should Learn from Software’, above n 34, 73. ‘Legal protection was recognised for business method patents in State Street Bank & Trust Co. v. Signature Financial Group, Inc.,' 149 F.3d 1368 (Fed. Cir. 1998). Despite the existence of ‘long line of (mainly lower) court opinions holding that business methods are too abstract to be patented’. Rochelle Cooper Dreyfuss, ‘Are Business Method Patents Bad for Business?’ (2000) 16 Santa Clara Computer & High Tech. L. J. 263, 265. 39 Robert Merges, ‘As Many as Six Impossible Patents’, above n 38, 581, some commentators have argued that patenting business methods is unnecessary expansion of the patent law and does, in fact, impose very high social cost in comparison to other patentable subject matter, Michael Meurer sheds light on some of the aspects of the social cost associated with business methods patent: [The] social cost of business method patents may be higher than other types of patents because of the problem of patent floods. Business method inventions are likely to cluster around the time that a new market opens. The cluster of inventions gives rise to a flood of patent... Those costs are attributable to increased licensing and litigation costs, an increased danger of anticompetitive exclusionary use of patents, and a stifling of refinement and application of the patented inventions. Michael J. Meurer, 'Business Method Patents and Patent Floods' (2002) 8 Wash. U. J.L. & Pol'y 309, 338 In the same context Professor Rochelle Dreyfuss have argued that: I believe that they [business method patent] adversely affect innovation, and worse, the economy. .. These patents are not associated with the benefits that, as a constitutional matter, justify the recognition of private property. And the economic costs they impose can be astounding. Rochelle Cooper Dreyfuss, above n 38, 274.

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Despite the fact that the rest of the world is still resisting granting patents over business methods and software programs, 40 a breach of the walls protecting the public domain (with regard to some subject matter deemed unpatentable) has occurred, and it shows ‘a disturbing tendency to erode at an increasing rate’.41

Additionally, patent protection was unduly stretched to cover methods of medical treatment (MMT). MMT were held for long time to be unpatentable because of ethical considerations related to the medical profession and technical considerations related to conditions of patentability, particularly because MMT are not industrially applicable. 42 Despite all that, the US Patent Act has covered MMT with patent protection since 1950s.43 However, the US approach is rightfully not adopted in other major jurisdictions such as Canada and the EU.44

With the current enclosure movement, policymakers work against the norms that prevailed from the early days of the IP system until the early 1980s, which ‘assumed that intellectual creations were not protectable unless (very) good cause was shown. Today, it often seems the opposite. We now ask: ‘why not protect a new form of intellectual creation? We are protecting everything else like it’.45 If we are faced with a question of protecting or strengthening the protection of new intellectual creations that are similar to business methods or software programs, we might tend to forget that these may not worthy of protection themselves and focus on the fact that they

Professor James Boyle criticises the very foundation of business method patents based on the assumption that ways of doing business have been in the market for long- at an acceptable rate- without the need for IP protection for business methods, he argues that: You might wonder why we would want to patent business methods. Intellectual property rights are supposed to be handed out only when necessary to produce incentives to supply some public good, Yet there are already plenty of incentives to come up with new business methods. (Greed and fear are the most obvious.) There is no evidence to believe we need a state backed monopoly to encourage the development of new business methods… The process of copying business methods is called ‘competition’ and is the basis of a free-market economy. Yet patent law would prohibit it for 20 years. James Boyle, ‘What Intellectual Property Law Should Learn from Software’, above n 34, 74. 40 Ibid, 76, Robert Merges, above n 38, 586. 41 James Boyle, ‘What Intellectual Property Law Should Learn from Software’, above n 34, 76. 42 American Medical Association, ‘Ethical Issues in Patenting Medical Procedures’, available at the official website of the Association: http://www.ama-assn.org/resources/doc/code-medical- ethics/9095a.pdf 43 Todd Martin. ‘Patentability of Methods of Medical Treatment: A Comparative Study’ (2000) Journal of Patent and Trademark Office Society, 401. 44 See for instance art 52 of European Paten Convention (1973), on EPO’s website http://www.epo.org/law-practice/legal-texts/html/epc/1973/e/ma1.html and in Canada: Tennessee Eastman Co et al. v. Commissioner of Patents (1972) 62 C.P.R. 117. 45 Robert Merges, above n 38, 587.

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are protected. Then, we extend protection for new inventions that are unworthy of protection, by analogy. This approach lacks logic and should be reconsidered.

As David Lang has observed, since 1981 trademark laws have followed copyrights and patents and ‘begun to spill over [their] boundaries and encroach into territories in which trademark protection amounts to trespass.’46 The only rationale underpinning the existence of trademark protection was consumer protection against confusion or deception as to the source of the goods or their sponsorship, endorsement, affiliation, or association. 47 Nowadays, however, courts and legislatures are increasingly treating trademarks as property that should be protected for its own sake.48

For instance, anti-dilution provisions bestow rights on the trademark’s holder to prevent a minor use of a mark if this might ‘dilute’ or ‘whittle away’ the selling power of the senior mark’49 regardless of the absence of competition between the relevant parties or the absence of consumer confusion as to the source of goods or services. ‘Dilution is an amorphous concept, and no anti-dilution statute addresses exactly what dilution is or how it can be proven.’50 It is but another unwarranted expansion of IP laws in which protection is given to the persona (identity, distinctiveness and uniqueness) of the mark itself ‘quite apart from its function of identifying the source [or quality] of goods and services.’ 51 Other instances of

46 David Lang, ‘Recognizing the Public Domain’, above n 3, 158. 47 Robert N. Klieger, ‘Trademark Dilution: The Whittling Away of the Rational Basis for Trademark. Protection’ (1996-1997) 58 U. Pitt. L. Rev. 789, 796. 48 Mark Lamely, ‘The Modern Lanham Act and the Death of Common Sense’ (May, 1999) The Yale Law Journal, Vol. 108, No. 7, pp. 1687-1715, 1688, Lamely observes that ‘courts are increasingly treating trademarks as if they were property in their own right’ 1705. Robert N. Klieger, ‘Trademark Dilution’ above n 47, ‘the consumer protection model of trademark rights constitutes not only the traditional basis for trademark protection, but also its only rational basis.’ At 852 49 Robert N. Klieger, above n 47, 794. The emergence of dilution as a theory is generally attributed to Frank Schechter, who suggested since 1927 that ‘the preservation of the uniqueness of a trademark should constitute the only rational basis for its protection.’ Frank L Schechter, ‘the Rational Basis of Trademark Protection’ (1927) 40 Harvard Law Review, 831. Schechter sought to divorce trademark rights entirely from consumer confusion and to recognize in senior users of distinctive marks an in gross property right no more limited than that in the physical assets of a business, Robert N. Klieger, above n 47, 796-7. 50 Ibid. 51 Ellen P. Winner, ‘Right of Identity: Right of Publicity and Protection for a Trademark's Persona’ (1981) 71 Trademark Rep. 193, 198. Robert N. Klieger, concludes his study by affirming that anti- dilution provisions operate against the rational of trademark law in protecting consumers from confusion, and he, therefore, suggested that ‘the Federal Trademark Dilution Act … repealed or read into obscurity by the courts’ Robert N. Klieger, above n 47, 866. Professor Clarisa Long’ s findings support the recommendation made by Robert N. Klieger, she observes that anti-dilution provisions are being read narrowly by American courts, she states that: Judicial enforcement of dilution law is not robust today and has been eroding over time Quantitative and qualitative data derived from published opinions and from trademark infringement filings indicate

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trademark laws’ expansion include the configuration of a product — the trade dress of a product 52 or even its shape53 — which might qualify for trademark protection.54

Mark Lemely refers to the effect of trademark expansion on social and artistic speech, where courts in the US have in certain cases allowed trademark holders to prevent painting a mark or, in one case, from using the term ‘Godzilla’ on a cover of a book.55

The instances mentioned above are not the only examples of newly created or expanded IP rights.56 As James Boyle puts it ‘[t]he difficulty … is not in finding an example of intellectual property expansion, but in knowing which one to pick’.57 Nonetheless, these expansions share a common aspect: the need for protection is always questionable and refutable.58

that after a period of initial broad interpretation and sometimes even enthusiastic embrace of dilution law, courts in recent years have become rather chary of it, Clarisa Long, ‘Dilution’ (2006) Columbia Law Review, Vol. 106, No. 5 pp. 1029-1078, 1029. 52 A classic example might be the shape of the traditional Coca-Cola bottle. Mark Lamely, above n 48, 1700. 53 A classic example might be the shape of the traditional Coca-Cola bottle. Mark Lamely, above n 48, 1700. 54 Professor Mark Lemely compares between the trademark protection of the product’s configuration and the anti dilution provision as both seem to divorce trademarks’ laws from their original purpose, that is, protecting conusmers from confusion and deception. In this context, he argues that: As with dilution, what started as an exceptional doctrine for cases in which the risk to goodwill was evident has expanded into a trademark doctrine of general applicability, one that virtually any manufacturer can invoke to secure additional protection for its products. In the process, the link between product configuration and consumer source identification has all but disappeared. Once Two Pesos declared that ‘inherently distinctive’ trade dress and product configurations were entitled to automatic protection, Mark Lemely, above n 48, 1701. 55 Toho Co. v. William Morrow & Co., 46 US.P.Q.2d 1801 (C.D. Cal. 1998) cited in Mark Lemely, above n 48, 1711, in commenting on on trademarks’ intervention with using language Professor Lemely states that: [Trademark] law is being used to suppress social, political, or artistic speech that happens to include the trademark. The defendants in these cases are not using the trademarks in a way that confuses the consuming public or destroys the trademark owner's incentives to invest in product quality. They are simply making statements that the trademark owner either does not like and wants to suppress, or for which the owner wants to collect money. Trademark theory offers no justification for this sort of suppression of speech. It is an unintended consequence of the tendency to give unfettered property rights to trademark owners. 1713. 56 Professor Pamela Samuelson adds the layout of circuits in semiconductor chips which was in IP free zone before the enactment of the Semiconductor Chip Protection Act of 1984 (SCPA), and, in the area of trademarks’ protection she refers to names that were granted protection despite being too descriptive; Pamela Samuelson, ‘Enriching’, above n 4, 795 and 797; the patenting of life-forms and human genes can be added to the enclosure list as well, James Boyle, ‘A Politics of Intellectual Property: Environmentalism for the Net’ (1997) Duke Law Journal Vol. 47, No. 1, pp. 87-116, 100. 57 Ibid. 58 Rochelle Cooper Dreyfuss, above n 38, 274.

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6.2.1.2 Implementing Anti-enclosure Policy

At this stage, we need to recommend that policymakers implement anti-enclosure policy for any potential new IP subject matter, rather than merely criticising IP. At the centre of this policy is the recognition of the need to protect the public domain ‘against the danger that knowledge would be removed from it or access to existing material impeded.’59

Anti-enclosure policy is compatible with Islamic Shari’a for, at least two reasons. Firstly, implementing anti-enclosure policy means that unless a very good reason is put forward to justify IP protection, knowledge and culture will be kept free for all to use and capitalise on, to promote overall development and social welfare as Shari’a requires. Secondly, keeping knowledge and culture in the public domain accessible to the wider community promotes Islamic principles of stewardship, non- concentration of resources and knowledge dissemination.

Important considerations for implementing anti-enclosure policy and expanding the public domain of knowledge and culture include:

 Openness should be the default and IP protection should be the exception, so that ideas and facts remain in the public domain open for all to use.60

 An understanding that property rights might provide incentive, but do not always make more and better innovation.61 Too many rights are likely to slow innovation and creativity as surely as too few.62

 Replacing a faith-based approach with an evidence-based approach. 63 If IP protection is to be introduced for a new intellectual creation, it is not enough to justify protection on the assumption that IP promotes innovation and progress. Instead, ‘there must be mandatory, independently-produced, impartial, empirically rigorous impact statements’64 justifies IP protection.

59 Boyle, above n 8, 67. 60 Ibid 39 and 47, Christopher May, above n 5, 5. 61 Ibid, 44. See also Chapter 5 of this thesis p 160 et seq. 62 James Boyle, above n 16, 5. 63 William Patry, How to Fix Copyright (Oxford University Press, 2011) 49; James Boyle, ‘What Intellectual Property Law Should Learn from Software’, above n 34, 76. 64 William Patry, How to Fix Copyright, above n 63, 52. Although William Patry wrote about copyright in this book, his recommendation fits perfectly with the other provinces of IP. He affirms that when copyright protection is sought for new subject matter, those who seek protection ‘rarely go

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 It is argued in Chapter 4 that standard-setting processes are mainly concerned with increasing levels of protection without adequate regard to the development needs of developing countries. 65 Developing countries, including Islamic countries, should be skeptical about entering into new standard-setting processes at the international level, particularly those which lead to more restrictions on using and re-using knowledge products.66

 In contrast, it would be more responsive to the principles of Islamic Shari’a to cooperate with other countries to rethink the unfair approach (one size fits all) which dominates standard-setting at the international level. 67 The WIPO Development Agenda is a good starting point.68

 Constitutionally protecting the public domain.69 Public domain resources such as ideas, facts words and so on, should be covered by a constitutional clause70 to

to the trouble to make sound empirical case for their requests’. Instead, they merely claim that copyright laws encourage creativity, innovation and create jobs’. At 50-51. 65 See p 130 et seq. 66 Professors Keith Maskus and Jerome Reichman argue that in light of the uncertainty of the advantages of the current international IP system ‘further harmonization is not an improper goal, but rather a premature exercise’ Keith Maskus and Jerome Reichman, ‘The Globalization of Private knowledge Goods and the Privatization of Global Public Goods (2004) Journal of International Economic Law 7(2) 279-320, 312. 67 In a remarkable manifesto on WIPO and the future of IP, Professor James Boyle recommends that WIPO should be ‘a counterforce to the tendency to impose « one size fits all »’ , he contends that protecting intellectual creations with rights is context dependant, more rights might work for certain jurisdiction but not for all ‘One size cannot fit all’, James Boyle, above n 16, 6. 68 The WIPO development Agenda was adopted in October 2007 based on a proposal submitted by Brazil and Argentina. It aims to ensure that the development considerations for an integral part of the work of the Organisation. The 45 recommendations of the Agenda represent a road map to actualise its aim. Cluster ‘C’ of the Agenda is of paramount importance to what we recommended above as it explicitly recommends that the ‘Norm-setting activities shall ...be..member driven’ and ‘takes into consideration the levels of development’ it also emphasised the importance of ‘the preservation of the public domain within WIPO’s normative processes and deepen the analysis of the implications and benefits of a rich and accessible public domain.’. Development Agenda for WIPO, available online at: http://www.wipo.int/ip-development/en/agenda/ 69 Professor Diane L. Zimmerman argues in favour of ‘mandatory’ public domain through constitutional protection. She asserts that the Copyright and Patent Clause within the US Constitution seems to favour more IP protection; therefore, separate clause would be more appropriate and consistent with promoting innovation and free speech she states that: [Certainly], protection for speech goods by means other than formal copyright for example, through rights of publicity, the common law tort of misappropriation, direct and indirect efforts to protect factual material compiled into databases, the expansion of trade secrecy law, and the broadening of legal protections for trademark holders against disparagement and dilution go well beyond the constitutional text. All of these increase the opportunity for private parties to control who can use facts, ideas, expression and even words, as well as the conditions under which they may do so. If a constitutional basis for recognizing some form of ‘mandatory public domain,’ particularly one that reaches both federal and state activity, is plausible, its recognition would bring order to the sprawl in intellectual property rights, and stabilize the balance between incentives and access along more intelligible lines. Diane L. Zimmerman ‘Is There a Right To Have Something To Say? OneView of the Public Domain’ (2004) 73 Fordham L. Rev. 297, 311-312.

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prevent the legislative body and courts from privatising such resources through the grant of copyright, patent or trademark protection.71

 Technological protection measures (TPM) should not affect the viewing of content within the public domain.72

 IP policymaking should adjust to accommodate constraints imposed by creative practices, rather than the other way around.73 Research on the economics74 and social psychology of creativity shows that intellectual production would thrive in an open environment that allow sharing and cooperating.75 Policymakers would do better if they took note of this.

 Embracing the net as a solution, rather than a problem. 76 Traditional policymaking focuses ‘almost entirely on the Internet's potential for illicit copying’77 and forgoes its potential to encourage ‘innovation and facilitating the dissemination of cultural and educational materials’.78 Moreover, the Internet provides ‘a communications medium through which more people than ever before have become authors and publishers of interesting content’.79 Therefore, policymakers should think of ways to extend the traditional functions of the

70 Pamela Samuelson, above n 4, 825. 71 Edward Lee, above n 5, 110. As Lee puts it ‘this limit bars the government from granting exclusive rights to certain subject matter deemed to be ineligible for exclusive rights.’ The practical advantages of introducing constitutional clause for the public domain emphasises the importance for intellectual property theory to-as Professor Lang suggests- ‘ accept something akin to a ‘no-man’s land’ at the boundaries where doubtful cases of infringement ought always to be resolved in favor of the defendant, originality and non-obviousness could be read in in favour of openness instead of being read mainly in favour of commodofication, David Lang, above n 3, 19. 72 Jessica Litman, Digital Copyright (Prometheus Books, 2001) 14, Litman notes that if the TPMs enable copyright owners to exercise more control on their work, copyright should not be modified to enhance TPMs from the beginning. 73 Cohen, above n 10, 155. 74 See p 164. 75 Professor Cohen draws lessons from the social psychology of creativity to promote what she calls ‘cultural landscape’ (concept that highly similar to public domain). She argues that borrowing, reworking, and cross-fertilization are central to creative practice; therefore, creative production ‘will thrive under conditions that allow a substantial degree of unplanned, fortuitous access to and use of a variety of cultural goods’ she argues that: Research in the social psychology of creativity confirms that access to resources within one’s chosen field and domain(s), and within one’s society generally, is of paramount importance. Creative practitioners need to know what their predecessors have done and what their peers are doing, not only to learn skills and gain entree to relevant social networks, but also so that the work itself will stimulate new associations and experiments. Cohen, above n 10, 154. 76James Boyle, above n 16, 7. 77 Ibid 4. 78 Ibid. 79 Pamela Samuelson, above n 4, 799.

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public domain80 by a) removing unnecessary roadblocks within the said medium and b) not adding new ones.

 James Boyle compares the public domain to the environment,81 so he strongly recommends that there must be civil society organizations dedicated to protect the public domain against any attempts from government and industry to enclose materials from the public domain. 82

6.2.2 Examples for Legislative Reforms to Expand the Public Domain

Implementing an anti-enclosure policy is only one measure for protecting the public domain and contributing to its expansion. Prominent IP scholars have suggested examples for various legislative reforms to the exclusive rights of IP holders that contribute to the same end. These examples, if implemented, will pose no existential threat to the essence of the exclusive rights of the IP holders, but they will contribute to increasing the stock of the free knowledge and culture in the public domain. This increase will, as a result, contribute to more innovation, creativity and overall development as Islamic Shari’a requires.

80 Central aspect of the traditional function of the public domain is to provide people with permission- free access to the technological and cultural knowledge once it is freed from the shackles of IP. The Internet allows digitizing substantial part of such knowledge and making it available to the world at marginal cost, James Boyle, above n 16. In the same context, one commentator observes that building ‘an online space for the public domain offer perhaps the greatest step forward for attaining the public domain’s full promise: the public’s free access to vast amounts of sources of learning’ Edward Lee, ‘The Public’s Domain: The Evolution of Legal Restraints on the Government’s Power to Control Public Access Through Secrecy or Intellectual Property’ Hastings Law Journal, 2003, 180. 81In this Boyle states that: [For] a number of reasons, the appropriate model for the change in thinking [about preserving the public domain] which I argue for comes from the history of the environmental movement.... Like the environment, the public domain must be ‘invented’ before it is saved. Like the environment, like ‘nature,’ the public domain turns out to be a concept that is considerably more slippery than many of us realize. And, like the environment, the public domain nevertheless turns out to be useful, perhaps even necessary. Boyle, above n 8, 52. Then he adds ‘what is true for the environment is—to a striking degree, though not completely—true for the public domain and for the commons’ 73. 82 In this regard Boyle argues that: The idea of the public domain takes to a higher level of abstraction a set of individual Fiqhts— over this chunk of the genome, that aspect of computer programs, this claim about the meaning of parody, or the ownership of facts... an emergent concept of the public domain could tie together the interests of groups currently engaged in individual struggles with no sense of the larger context. This notion, in turn, allows people to solve collective action problems in a number of different ways, including the creation of specialized organizations whose technical expertise and lobbying proficiency allows the diffuse interests of a wider public to be better articulated. Here, too, we can learn. The public domain should have its Greenpeace, its Environmental Defense Fund, its Nature Conservancy, its Environmentally Concerned Scientists. In fact, organizations paralleling each of these functions are currently being created. Public Knowledge, http://www.publicknowledge.org, ibid, 73.

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6.2.2.1 Reduced Term of IP Protection

This subsection uses the examples of the copyright and patent terms to further establish the case against the expansion of IP rights. It suggests adjusting law and policymaking in this area to invigorate the public domain as encouraged by the principles of Shari’a.

Copyright systems grants owners of copyrightable materials long term of protection. This term can be reduced without negatively affecting creativity in literary and artistic works. However, reduction would inject a substantial sum of intellectual products into the free zone and result in expansion of the public domain.

In copyright doctrine, the bundles of exclusive rights that are granted to the copyright holder are limited in time. Copyright holder is granted monopoly rights for certain period in exchange for eventual ‘dedication to the public domain’. 83 Therefore, the time added to the term of copyright protection results in withholding the work from being freely available in the public domain.84

In February 1841 Thomas Babington Macaulay delivered a speech before the British ‘House of Commons’ on the subject of copyright term.85 He argued that copyright is a monopoly and it does produce the negative effects of monopoly in the physical world by making goods scarce and dear.86 Macaulay said:

It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.87

If Macaulay sensed the evilness of copyright’s monopoly with the short term of his time (14 years), it is most certain that his words hold very true today. The minimum term of copyright now is the life of the author plus 50 years88 and many countries have 70 year terms.89 The majority of scholars and commentators agree that the

83 Edward Samuels, above n 21, 152. 84 J. Cohen, above n 10, 122. 85 For full text of the speech see Eric Flint, Prime Palaver #4Macaulay on copyright law, 2001, available on line at http://www.baen.com/library/palaver4.htm 86 Ibid, para 4. 87 Ibid. 88 Art. 7 of the Berne Convention. 89For instance US, the EU, Jordan and Bahrain copyright laws.

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current term is too long90 and causing adverse effects to our culture which include: a) locking up, without good and empirically grounded reason, most of the cultural and educational materials produced in the last century, which could have been made available to the public91; and b) the longer the term, the more onerous the task of finding out who owns rights in the work (the orphan works dilemma).92

The current copyright term (50 or 70) is too long. It unduly places culture, knowledge and education in a black hole for over 100 years,93 preventing the public from reading, listening and watching creative works that could benefit them without securing serious interest for authors.94 It thereby prevents copyright from achieving its presumed purpose in encouraging the creation and dissemination of creative works. It essentially places enormous restrictions on using and re-using knowledge and culture. Therefore, the copyright term needs to be ‘dramatically cut back’.95 In doing so, we need to take into consideration providing authors with a term that does not suppress their incentive, on one hand, and, on the other, a term that places works

90 Lawrence Lessig in most of his research strongly criticises the copyright term. See for instance: The Future of Ideas: The Fate of the Commons in a Connected World (Angus & Robertson, 2001); Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity Penguin (Books, 2004); see also James Boyle, The Public Domain: Enclosing the Commons of the Mind (Yale University Press, 2010 ) 205; Julie Cohen, above n 10, 158; Richard A Epstein ‘Dubious Constitutionality of the Copyright Term Extension Act’, 36 Loy. L. A. L. Rev. 123 2002-2003, 128. (commenting on the extension of US Copyright term as ‘massive giveaway of public domain resources for private use’); J. H Reichman, ‘The Duration of Copyright and the Limits of Cultural Policy’ Cardozo artsarts & Ent LJ, 1996, 625 (Reichman asserts that the ecology of creativity and innovation has changed in comparison with the times of the enactment of the Berne and Paris Conventions. This change requires limited protection of IP in general in terms of the scope of rights and the duration) 625-626. Many other US IP scholars have debated the appropriate term of copyright protection and the arguments against long copyright protection. Among these debates a symposium that took place in Cardozo Law School to discuss the constitutionality of US Copyright Term Extension Act (CTEA) which has been challenged in a famous constitutional case (Eldred v. Ashcroft) filled by Lawrence Lessig and others on behave of Eldred Foundation. See edited version of the Symposium, Jane. C. Ginsburg; Wendy G Gordon; arthur R Miller; William Patry, ‘The Constitutionality of Copyright Term Extension: How Long is too Long?’, Cardozo artsarts & Ent LJ, 2000. 91 Cohen, above n 10, 158; James Boyle, The Public Domain: Enclosing the Commons of the Mind, above n 90, 205; James Boyle, above n 16, 5 ( Boyle contends that the loss resulted from locking up the said cultural and educational material ‘exceeds any possible loss from ‘piracy’; William Patry, How to Fix Copyright, above n 63, 189 (Patry argues that ‘ the evidence is overwhelming that the current, excessive length of copyright ...denies access to vast troves of culture and...does not incentivize the creation of new [works]’) 92 Ibid, William Patry discusses in detail the problems caused by long copyright term on the accessibility to books, films and music, most notable among the examples that he provided is BBC’s library of films where - as Patrty notes- the majority 1 million hours of films are unusable, and there is no way to get clearance. Ibid, 190. Patry critizes scholars and commentators who maintained that there is an orphan works problem stand by its own. He argued that ‘we have no orphan work problem, we have a term of protection problem’ 192. 93 Lessig, above n 90, 251. 94 Wiliam Patry, above n 63, 199 and 200. 95Ibid 201.

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in the public domain when their protection imposes social costs without social benefits as is the case with most of our culture nowadays.96 But how long is long enough?

Copyright scholars, mainly from the Anglo-American jurisprudence, 97 suggest different terms based on historical data observations.98

Lawrence Lessig is an active advocate of shorter copyright duration.99 He suggests a shorter copyright term based on the historical attitude of the authors themselves. He offers an historical analysis from different periods in the US copyright history.

Firstly with the first US copyright law (1790), the term of protection was only 14 years and renewable for another 14 years. Authors who desired total of 28 years protection had to express their desire and formally apply for copyright term renewal. ‘five percent of work that could have been copyright was actually copyright during the first ten years of that regime ... ninety-five percent of creative work passed into the public domain immediately’100 with no recorded negative effects on creativity in the United States.

Secondly, under the 1909 US Copyright Act which offered protection for 28 years renewable for another 28 years. 101 In a study conducted in 1973, authors of 85 percent of copyright works under said law did not renew their copyright,102 which

96 Jason Schultz conducted a massive research on books in print in the US and published during the period of 1927-1946. Schultz found that out of 187, 280 books published during the mentioned period, only 4,267 were accessible in 2002, which equals 2.3 percent. A seventy-year copyright term kept 97.7 percent of works unaccusable and without benefits to their authors and to the public. Jason Schultz, The Myth of the 1976 Copyright ‘Chaos’ Theory (2002), available online at: http://www.lessig.org/blog/archives/jasonfinal.pdf 97 Despite the fact that the studied proposals in this research came as a response to CTEA in the US, it is applicable to the international standards as these proposals in general offer terms less than 50 years and the arguments against the CTEA equally apply. 98 James Boyle suggests 28 years term based exactly on the same argument as that of Lessig James Boyle, The Public Domain: Enclosing the Commons of the Mind, above n 90, 238. Net Netanel admits the difficulty in determining certain protection term, but he affirms as well that the current term is ‘inordinately long’ . Therefore, as with Lessig and Boyle he suggests the return to the term set by 1909 US Copyright Law: 28 years copyright protection renewable for another 28 years, Net Netanel, Copyright Paradox (Oxford University Press, 2008) 199; William Patry although he studied the history of copyright in the US he suggests different approach, he alludes to a category of works that need no copyright term such as letters, e-mails, government documents and for the rest of copyrightable works he suggests that it should be left to economists to suggest different terms for different works, Patry, above n 63, 200-201. 99 Lessig represented Eldred in constitutionally challenging the CTEA before the US Supreme Court (Eldred v. Ashcroft 537 US. 186 (2003) 100 Lessig, above n 1, 5. 101 We will discuss the importance of renewal requirement for invigorating the public domain below 102 Ibid

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means 85 percent of books, movies and sound recordings entered into the public domain after the 28 years term; free for all to read, view, listen, learn and build upon. And again, with no recorded negative effects on the incentives of the American authors. Lessig argues that short and simple copyright term should be around the latter term, and should not be extended any further.103 His proposal resembles that of James Boyle and Netanel.104

Lessig asserts that — on the one hand — ‘[a] change in the copyright term would have no effect on incentives for authors to produce [more] work’.105 It is difficult to imagine that an author would not write a book or software program if he knew that his work would be protected for less than 50 or 70 years.106 On the other hand, the benefits to creativity would be large from works that fell into the public domain.107

If the purpose of copyright law is to provide authors with incentive and to secure access to the public for copyright work, the current term does not help in actualising such purpose. It is chosen arbitrarily and restricts access for works that could enrich our culture and promote creativity; especially if we add the Internet to the equation. The Internet could make the 97 percent of the books that are out of print108 available at a click of the fingers if the term was designed to permit that.

The Patent Term is less contested. The 20-year term required by TRIPs109 seemed to be reasonable for both patentees and the public.110 Nevertheless, two remarks should be considered in order to maintain the term as it is without undue expansion:

103Lessig, above n 90, 206-207. Lessig proposed exactly 32.2 years based on the average term in 1973, which is a different proposal than that he submitted in his celebrated book the Future of Ideas: The Fate of the Common in the Connected World in which he proposed 5 years initial term renewable for 14 times, see Lessig, The Future of Ideas, above n 90, 251. 104 See footnote 98. Professors William M. Landes and Richard A. Posner, propose indefinite renewable copyright term. They use- as well historical data observation from 1883 to 1964 where 11 percent of copyright works have been renwed. They suggest that granting copyright will keep under copyright protection only those works who authors value them. William M. Landes and Richard A. Posner, ‘Indefinitely Renewable Copyright’ (2002) The Social Science Research Network Electronic Paper Collection, 2-3. 105 Lessig, above n 90, 252. 106 Ibid, William Patry argues in the same direction, he observes that authors are mainly concerned with the value if their work at the time of its production. So if an author decided to write a software programme in 2012, she most likely would aim to get economic benefits in 2012 or short time thereafter. We should not assume that if she knew that the term is less than 50 or 70 years should would lose incentive to write that software, Patry, above n 63, 198-199. 107 Lessig, The Future of Ideas, above n 90, 252. 108 See footnote 96. 109 TRIPs art. 33.

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As the TRIPs requires, the term of protection should be measured from the date the application is filed and not from the date of issuance.111This step should reduce the period of exclusivity thereby releasing the invention sooner into the public domain, and opening it up to competition.112 This would result in positive welfare effects on innovation generally and particularly from the production of cheaper drugs as alluded to in Chapter 4.

Patent offices and courts should restrict the so-called patent ‘evergreening’. Patentees might engage in evergreening to extend the effective term of the patent by trying to patent incremental improvements just as the term on the underlying invention is about to enter into the public domain.113 Evergreening undermines the patent term and contributes to the withholding of knowledge from open use. 114 Therefore, when the patentee of an existing invention attempts to acquire protection on successive minor improvements, patent offices and courts should re-invigorate the non-obviousness standard to prevent such a manoeuvre thereby allowing the release of patented information into the public domain immediately after the elapse of the original term.115

6.2.2.2 Re-imposing Copyright Formalities

Another mechanism related to copyright that could be used as an example to expand the public domain is re-imposing formalities on the protection of copyright works. Because of the digital and Internet revolutions, registration of copyright could be effortless and cost-free. Creators of copyright works should be required to register their creative works. Otherwise, these works should be kept out of the protection zone and injected into the public domain.

110 See generally: Mark. A Lemley, ‘An empirical study of the twenty-year patent term.(GATT Symposium Issue: The Implications of GATT on US. Intellectual Property Laws’ (1994) AIPLA Quarterly Journal, 22 (3-4), 371 and 422. 111 TRIPS art 33. 112 Graeme Dinwoodie and Rochelle Dreyfuss, above n 32,7. 113 Graeme Dinwoodie and Rochelle Dreyfuss, above n 32,12. 114 Ibid 115 Ibid, 18, MIT sought to obtain a patent on improvement that was made on a pharmaceutical product (Carmustine). MIT sought Special Protection Certificate from UK, French and German Patent Offices. While the UK and French Patent Offices approved the SPC, the German Patent Office refused to grant SPC and considered it as an evergreening that aims to extend the effective duration of the patent. German Federal Court rejected an appeal made by MIT and so did the European Court of Justice in the 4th of May, 2006, Rebecca Halford-Harrison, ‘Evergreening − Extending Patent Life and Curbs on Repackaging’, Journal of Generic Medicines: The Business Journal for the Generic Medicines Sector 2006 3: 314, 315.

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For most of their history, copyright laws imposed formalities ‘on the existence and exercise of copyright’.116 Internationally, the Berne Convention recognized the right of Member States to impose formalities on the grant and the continuation of the enjoyment of copyright before eliminating such recognition in 1908.117 The most common example of copyright formalities include: filing registration or renewal application with copyright office, affixing the famous ‘©’ symbol on published copies of the work and depositing copies of the work in a government agency or a library. 118 These formalities have different purposes. For instance, the deposit obligation is aimed at creating a public record of all copyright works and thereby building national archives. As for registration, renewal, and affixing the ‘©’ symbol, they were supposed to assist copyright users to be aware that the work is under copyright protection and in determining who owned the copyright so those who wish to obtain any necessary licenses or releases could take the appropriate arrangements. 119 Failure to comply with copyright’s formalities resulted in the forfeiture of copyright.120

Forfeiture of copyright for non-compliance with formalities injected a great many creative works into public domain,121 thereby maintaining a better balance between the permission zone and free zone of our culture.122 Abolishing formalities for the

116 William Patry, above n 63, 203. 117 In Berlin Conference held on the 13th of November 1908, article 5 of the Berne Convention was revised. The new provision states that ‘[t]he enjoyment and the exercise of these rights shall not be subject to any formality’ http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html; for more see William Patry, above n 63, 206 -207. 118 Lessig, Free Culture, above n 90, 203-4. For more on the formality requirements in US law before their elimination in 1989, see Jane C. Ginsburg and John M. Kernochan, ‘One Hundred and Two Years Later: The US. Joins the Berne Convention’ 13 Colum.-VLA J.L. & artsarts 1 1988-1989, 2; on a brief history of formalities see William Patry, above n 63, 204; see also: Jane C. Ginsburg, ‘The US Experience with Copyright Formalities: A Love/Hate Relationship’ (2010). Columbia Public Law & Legal Theory Working Papers 119 Edward Samuels, above n 21, 154. 120 Jane C. Ginsburg and John M. Kernochan, above n 118. For instance, the US Section 411 of the 1976 Copyright Act made registration of a work with the Copyright Office and an accompanying deposit of copies a prerequisite to initiation of any infringement action. ‘no action for infringement might be instituted prior to registration’ 12. 121 Edward Samuels discussed the relationship between formalities and the public domain, he argues that: The effect of this change is to redefine the entire relationship between a copyright owner and a copyright user. One of the primary effects, if not purposes, of formalities was to thrust works into the public domain. Works are no longer being so thrust into the public domain. Perhaps we should therefore rethink any ‘theory of the public domain’ that may have existed under prior law, because an important component of the public domain has now been eliminated. Edward Samuels, above n 21, 158. 122Lessig, above n 5,71; Edward Samuels, above n 21, 157; Christopher Sprigman, Reform(alizng) Copyright, Stanford Law Review, 2004 122 Lessig, above n 5, 71

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existence and exercise of copyright has been described by Lessig as ‘a bizarre shift’.123 The copyright holder is automatically granted exclusive rights, a monopoly right, for decades without any effort.124 Any produced expression now has copyright protection whether or not the notice is affixed, and whether or not it is possible to identify who the owner is.125 Even if someone wants to abandon his copyright he must express his intent somehow.126 If the work is left unused for years and might retain no value for the owner, with the current expansion of copyright, it is necessary to obtain permission to use the work and build upon it. With the abolishment of formalities, ‘there is no simple way to know who owns what’. And thus, many are forced ‘into silence where they otherwise could speak’.127

The rationale for abolishing formalities is said to be the high cost of compliance with formalities, especially at the international level.128 In addition, looking back thirty years, formalities imposed a burden on copyright holders.129 However, in the world of digital networks, the cost of formalities could be marginal, likewise the burden on copyright holders. It is not hard to imagine what could be done with imprisoned works on which there is no copyright notice, or which have unidentified authors.

Accordingly, some copyright scholars strongly recommend that formalities be restored to the copyright system,130 so copyright protection would be confined ‘to those works where protection is necessary, at least as judged by the copyright owners.’131

William Patry, while he recommends some solutions that individual countries ‘can and should’ take, he observes that ‘a comprehensive approach to formalities requires

123 Lessig, Future of Ideas, above n 90, 250. 124 Ibid, Richard Epstein has aptly described this bizarre shift ‘the copyright law has flipped over from a system that protected only rights that were claimed to one that vests all rights, whether claimed or not’ Richard A Epstein ‘Dubious Constitutionality of the Copyright Term Extension Act’, 36 Loy. L. A. L. Rev. 123 2002-2003, 124. 125 Lessig, Free Culture, above n 90, 203. Lessig elaborates more: For if permission is required, then we need a way to know from whom that permission must be secured. Yet the abolishment of formalities has removed any easy possibility of knowing. A work is protected whether or not you can identify who the owner is; it is a felony to use that work in certain ways, even if there is no one to ask for the permission to use it. Above n 5, 70-1. 126 Edward Samuels, above n 21, 156. 127 Lessig, Future of Ideas, above n 90, 203. 128 Lessig, above n 5,71. 129 Lessig, above n 90, 203. 130 See for instance, Lawrence Lessig in some of his works, Free Culture, above n 90, 203; Fate of Common, above n 250; ‘Re-Crafting a Public Domain’, above n 5, 71; also Patry, above n 63, 207 and Springman, above n 122, 488. 131 Lessig, above n 5,71.

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a revision to treatises, including the Berne Convention’.132 In a similar vein the European Union’s ‘Comite des Sages’ in its January 2011 Report on Bringing Europe’s Cultural Heritage Online recommended that ‘some form of registration should be considered as a precondition for a full exercise of rights’ even if this would result in a revision of the Berne Convention.133

Chirstopher Springman 134 suggests structuring ‘new-style’ formalities that would capture as many of the benefits of the former system as possible’ without running ‘afoul of the anti-formalities provision of the Berne Convention’135

The proposed ‘new-style’ formalities system will ask copyright holders to place a notice on published works, register and renew them and deposit a copy in a government agency or a public library. However, noncompliance with these formalities shall not result in the forfeiture of copyright, but ‘would subject works to a perpetual and irrevocable ‘default license’, with royalties set at a very low level, thus effectively moving a work into the public domain.’136 The Berne Convention does not intervene with the grounds on which such license would be granted.

With the connected networks of modern digital technology, registration, renewal and depositing could be an effortless task. 137 Lawrence Lessig maintains that ‘if a copyright isn’t worth it to an author to renew for a modest fee, then it isn’t worth it to society to support — through an array of criminal and civil statutes — the monopoly protected’.138

132 Patry, above n 63, 209. 133 ‘Comite des Sages’ The New Renaissance: Report on Bringing Europe’s Cultural Heritage Online, January 2011, 5 available on line at: http://ec.europa.eu/information_society/activities/digital_libraries/doc/refgroup/final_report_cds.pdf, reagarding the revision of Berne, the Report explicitly stated ‘A discussion on adapting the Berne Convention on this point in order to make it fit for the digital age should be takenup in the context of WIPO and promoted by the European Commission’ page 5 134 Stanford Center for Internet and Society. 135 Springman, above n 122, 491. 136 Ibid. 137 Lessig proposes detailed account of a new system of formalities. He states that: In the context of registration, one obvious model is the Internet. There are at least 32 million Web sites registered around the world. Domain name owners for these Websites have to pay a fi to keep their registration alive... We should adopt a similar model for the registration and renewal of copyrights. The Copyright Office may well serve as the central registry, but it should not be in the registrar business. Instead, it should establish a database and a set of standards for registrars. It should approve registrars that meet its standards. Those registrars would then compete with one another to deliver the cheapest and simplest systems for registering and renewing copyrights. That competition would substantially lower the burden of this formality - while producing a database of registrations that would facilitate the licensing of content. Lessig, above n 90, 204. 138 Lessig, Future of Ideas, above n 90, 251.

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A formalities system would leave decisions on protecting creative work to the authors themselves. Works that are valueless for them would enter the public domain and might be used by another creator who might find value in these works. A system for formalities would also create data about the existence and the duration of copyright and who owned the work and, thereby, facilitate licensing by lowering the cost of identifying rights holders.139

6.2.2.3 Re-Crafting Exclusive Rights

IP’s mechanism for empowering creators is to grant them a bundle of exclusive rights to exclude third parties from using the item without payment or permission.140 The power to exclude could be used for good reason, a bad reason or for no reason.141 IP scholars argue that we need to recalibrate the doctrines of exclusive rights in order to empower the public domain, so users can legitimately read, research transform and recreate.142 This might be an odd suggestion in light of the current expansion and sophistication of IP. However, there is nothing historically odd about limited exclusive rights, both nationally 143 and internationally, 144 particularly with regards to copyright.

139 Springman, above n 122, 487. 140 We have seen that exclusive rights are not always necessary nor always beneficial, particularly in the digital age, see p 168. 141 Patry, above n 63, 172. 142 Cohen, above n 10, 124, she observes that in order to strengthen the function of public domain in copyright law, ‘we need to recalibrate the doctrines that determine the scope of a copyright owner’s rights during the copyright term, particularly those that establish the right to control the preparation and exploitation of copies and derivative works.’124; Pam Samuelson adopts the same opinion. ; Pamela Samuelson, above n 4, 795; Michael W. Carrol, ‘One Size Does Not Fit All: A Framework for Tailoring Intellectual Property Rights’, OHIO STATE LAW JOURNAL, 2009, 1409. 143 For instance, in US first copyright law of 1790, the only exclusive rights of copyright were the rights to print, reprint, publish, or vend the work. Beyond that, users were free to do almost anything, and anything was fair use. With the elapse of time, however, the positions changed. Copyright owners exclusive rights have expanded and they became the rule while users are granted exceptions. Compare US Copyright Act of 1790( available online at: http://www.copyright.gov/history/1790act.pdf) with the major reformed Copyright Act of 1976 (available online at: http://www.copyright.gov/title17/); for more see: Edward Samuels, above n 21, 143 and 144; Jessica Litman, Digital Copyright, above n 72, 175 and 176. 144 In his comprehensive work on the history of the Berne Convention, Professor Sam Ricketson points out that the exclusive rights of copyright holder ‘have been added to the Convention text in a piecemeal way…in response to particular contemporary needs and pressures, and without any attempt at systematic organisation. Each successive revision of the Convention has therefore seen the addition of a new right or rights’. Professor Ricketson explains what was in Berne at first place and was added throughout its history: The original Berne Act contained exclusive rights only in relation to the making and public performance of translations of works. Rights in relation to cinematographic adaptations and mechanical reproduction of musical works were added at the time of Berlin Revision, broadcasting and moral rights at Rome, public performance and recitation and adaptation …at Brussels, and

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This subsection argues that by making certain legislative reforms to the exclusive rights of IP holders, more uses of protected works will enter into the public domain thereby contributing to its expansion. Expanding the public domain by re-crafting the exclusive rights of IP holders would not undermine the essence of these rights. Three examples are used to support this argument: redefining the scope of exclusivity in copyright and patent, eliminating the exclusive right to reproduction in copyright and delineating the scope of the exclusive right to derivative works.

6.2.2.3.1 Redefining Exclusivity

It is conceivable and even practicable to redefine the scope of IP holder’s exclusive rights as a unitary right for commercial exploitation of the intellectual products. An IP holder in this case will retain the essence of IP protection, that is, will be able to commercially exploit their work, and at the same time allow other applications of the work to fall into the public domain free for others to use, re-use and build upon. This section provides examples from copyright and patent laws.

Generally, copyright laws grant copyright holders a raft of exclusive rights for reproduction, performance, distribution, making derivative works and so on. Normally, copyright holders seek pecuniary benefits from their rights. In their quest to commercially exercise their exclusive rights, copyright holders might prevent beneficial public uses of the copyright works that do not negatively affect their legitimate interests.

Jessica Litman (later supported by others)145 developed, over the last two decades,146 a bold proposal in which she pointed to some of the negative effects of multiple

reproduction at Stockholm’. Sam Ricketson, the Berne Convention for the Protection of Literary and artistic Works: 1886-1986 (Center for Commercial Law Studies, Queen Marry College, Kluwer, 1987) 367-368. 145 Professor Litman refers to other studies conducted by other scholars and commentators in which they argue for reforming copyright law in a way that makes non-commercial exploitative uses in general outside of the copyright owner’s control, whether under the fair-use rubric or otherwise, Jessica Litman, ‘Real Copyright Reform’, IOWA LAW REVIEW, 2010, 43; Glynn S. Lunney, Jr., Fair Use and Market Failure: Sony Revisited, 82 B.U. L. REV. 975, 1017–29 (2002); compare Cohen,’ ‘Locating the Public Domain’, above n 10, 163. Copyright scholars have, in fact, made a number of thoughtful proposals for recasting copyright law to give greater benefit to authors or to the public. See, e.g., William W. Fisher, Promises to Keep: Technology, Law, and the Future of Entertainment (Stanford Law Books , 2004); Neil Netanel, ‘Impose a Noncommercial Use Levy To Allow Free Peer-to-Peer File Sharing’, 17 HARV. J.L. & TECH. 1 (2003); Jerome H. Reichman, Graeme B. Dinwoodie & Pamela Samuelson, ‘A Reverse Notice and Takedown Regime To Enable Public Interest Uses of Technically Protected Copyright Works’ 22 BERKELEY TECH. L.J. 981 (2007); Pamela Samuelson, ‘Preliminary Thoughts on Copyright Reform’ (2007) UTAH L. REV. 551

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expansive and overlapping several exclusive rights, and made specific proposals for reform, the central point of which is to ‘get rid of our current bundle-of-rights way of thinking about copyright infringement’147 and instead:

[Recast] copyright as a single exclusive right with carefully drawn boundaries. If we chose to define a single core copyright right, the most promising candidate for that right, in my view, would be a right to control commercial exploitation. Limiting the scope of copyright to commercial exploitation would be simpler than the current array of five, six, seven, or eight distinct but overlapping rights. Copyright defined as control over commercial exploitation, moreover, would accord with what we know of the public’s understanding of what copyright law does, and should, reserve to the author. It would also preserve for readers, listeners, and viewers the liberty to enjoy works in non-exploitative ways without seeking licenses for each. (Emphasis added.)148

In supporting her proposal, Litman argues that non-commercial uses of copyright materials are rarely followed by litigation. Even if they were, courts tend to find leeway in their interpretation of the law to exempt the users from liability. Consequently, confining copyright as a right for commercial exploitation is merely ‘the explicit recognition of a limitation that had always been implicit in the law’.149

Moreover, the proposed reform accords well with the public perception of copyright. Non-lawyers, Litman argues, ‘will tell you that making money using other people's works is copyright infringement, while non-commercial uses are all okay’ as long as ‘they do not harm the commercial market for the work’.150 Any potential copyright reform should take this into consideration.

Additionally, a unitary commercial exploitation right would enhance what Litman calls, ‘copyright liberties’.151 Reading, listening, viewing, watching, playing, and using copyright works for personal purpose are non-exploitative uses. 152 The proposed reform would exclude these uses from any discussion of infringement. So transforming a book into e-book, DVD into MP3 or modifying software to work in a

146 Litman ‘Revising Copyright Law for the Information Age’ (1996) 75 Or. L. Rev. 19. Also in Litman, Digital Copyright, above n 72; and in Litman ‘Real Copyright Reform’ (2010) Iowa Law Review. 147Jessica Litman, Digital Copyright, above n 72, 180; Litman, ‘Revising Copyright Law for the Information Age’ (1996) 75 Or. L. Rev. 148 Jessica Litman, ‘Real Copyright Reform’, above n 146, 42. 149 Ibid, 46. 150 Litman, above n 146, 40. 151 Jessica Litman, ‘Lawful Personal Use’ (2007) Texas Law Review, Vol. 85, 1879 152 Ibid.

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certain way should be always lawful and should not be the subject of a discussion on exemptions. It is in this way, by allowing reading, viewing, watching, playing and so on, that copyright law would achieve its core objective in promoting learning and progress.153 A unitary commercial exploitation right would have significant bearing on the scope of distribution rights, reproduction rights and the right to derivative works as explained below.

Admittedly, Litman was concerned that her proposal would clash with the type of non-commercial uses that constitute ‘large-scale interference’ with copyright holders’ commercial market, such as uses of ‘educational materials by educational institutions’. 154 A unitary commercial exploitation right should be defined in a manner that takes into consideration such a concern. Net Netanel came up with two proposals that would mitigate the concerns posed by Litman, Netanel suggests that:

 Copyright should be re-crafted to remove the current barriers that it imposes on digitising, archiving and making available millions of out-of-print books, articles, documents and the unavailable sound records, paintings and motion pictures that constitute our heritage. This should take place under a specific legislative reform that allows non-profit libraries and archives to digitize such heritage and make it available on non-commercial basis without any need to obtain a copyright license.155

 Peer-to-peer file sharing (P2P) is an enormous potential channel for distributing creative works. 156 Netanel suggested that non-commercial copying in digital format and non-commercial distribution should be privileged uses under what he termed as a ‘non-commercial use levy’157 (NUL). The essence of Netanel’s proposal is that users will obtain ‘an unhindered entitlement’ to copy and distribute content for non-commercial

153 Litman, above n 146, 44- 45, in more recent work, Litman argues that: We should, for example, ensure individuals’ liberty to choose how to read, see, and hear works to which they’ve gained lawful access. We do that now by protecting their liberty to perform and display copyright works privately, whether or not the copyright owner could make money from licensing the performance or display. Jessica Litman, ‘Readres’ Copyright’ (2011) Journal, Copyright Society of the US.A, 350. 154 Litman, Digital Copyright, above n 72, 181. 155 Net Netanel, Copyright Paradox, above n 98, 211. 156 Net Netanel, ‘Impose a Noncommercial Use Levy to Allow Free Peer-to-Peer File Sharing’ (2003) Harvard Journal of Law & Technology, Vol. 17. 157 Ibid 37

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purposes158 and copyright holders will have a levy deducted as a percentage of the gross revenue received from providers of services and devices which have increased in value as a result of P2P file sharing of the copyright works.159 Netanel provides a detailed blueprint that shows how the NUL works in terms of who should pay the levy, the basis of payment and the payable amount.160

In relation to patents, Graeme Dinwoodie and Rochelle Dreyfuss along with other commentators161 argue that the patentee’s right to exploit his or her invention should not interfere with non-commercial uses,162 especially by researchers in university labs and research centres for the ‘gratification of scientific tastes, or for curiosity, or for amusement’.163 They refer to case law in the US in which the Federal Circuit has favoured the exclusive rights of the patentee over what is known in the US as ‘experimental use defense’.164 An approach that would promote the public domain and enhance development is a recalibration of the patentee’s exclusive rights to use and exploit the invention in a way that allows the patented invention to be the subject of non-commercial use. Research, to verify ‘the adequacy of the specification and the validity of the patent holder's claims about the invention’,165 and to determine how the invention worked would be especially beneficial.

158 Ibid 84 159 Netanel, above n 98, 208 160 Netanel suggests that the the proposed NUL should be payale from Internet service providers, P2P software and services; computer hardware; platform and Websites for user-posted content like YouTube; software like TiVoToGo and the like. As for the basis for payment, he suggests that the levy should be set as ‘a percentage of gross revenue’. With regard to the payable amount, he estimates that ‘ a levy averaging some 4 percent of gross retail revenue would well compensate copyright holders for net income they actually stand to lose as a result of unhindered non-commercial file sharing’ . After collection, the levy should be distributed among copyright holders in proportion to the popularity of their respective works…as measured by digital tracking and sampling technologies’, Nentanel, Copyright Paradox, above n 98, 208 and 209. 161 Michael A. Carrier, ‘Cabining Intellectual Property Through a Property Paradigm’ (2004) Duke Law Journal, Vol. 54, No. 1, 120-121; Rebecca S. Eisenberg, ‘Patents and the Progress of Science: Exclusive Rights and Experimental Use’ (1989) The University of Chicago Law Review, Vol. 56 No. 3, 1019. 162Graeme Dinwoodie and Rochelle Dreyfuss, above n 32, 13. 163 William C. Robinson, The Law of Patents for Useful Inventions § 898 (1890); Whittemore v. Cutter, 29 F. Cas. 1120 (C.C.D. Mass. 1813); Sawin v. Guild, 21 Fed. Cas. 554, F. Cas. No. 12391 (C.C.D. Mass. 1813), cited in Graeme Dinwoodie and Rochelle Dreyfuss, above n 32,13. 164 See for instance 733 F.2d 858 (Fed. Cir. 1984), superseded on other grounds by 35 US.C. § 271(e) and 216 F.3d 1343 (Fed. Cir. 2000), cited in Michael A. Carrier, above n 161, 120-121. 165 Rebecca S. Eisenberg, ‘Patents and the Progress of Science’, above n 161, 1078; Katharine, J Standburg, ‘The Research Excemption to Patent Infringement: The Delicate Balance between Current and Future Technical Progress’ in Peter K. Yu, Intellectual Property and Information Wealth: Issues and Practices (Praeger Publisher, 2007) 132.

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Thus, reducing the bundle of exclusive rights of IP holders to a unitary right for commercial exploitation may not harm or undermine the legitimate interests of IP holders. Yet, it will contribute to expanding the public domain of intellectual goods and lift unneeded restrictions on users reading, researching, transforming and building upon the protected works.

6.2.2.3.2 Eliminating the Exclusive Right to Reproduction

The reproduction right in copyright law can be substituted by the right to distribute copies to the public. In this case, uses which do not count as distribution to the public should be deemed to be within the public domain. This may seem a fundamental shift. However, as discussed below, it will not lead to the undermining of the legitimate interests of copyright holders but will have a positive impact on the public interest.

The reproduction right is the exclusive right of the copyright holders to make copies of the work and to prevent others from replicating it in a substantial manner.166 The fabric of current copyright doctrine is characterised by that right. However, with the advent and development of digital technology it seems, as Jane Ginsburg notes, that copyright had made a bad name for itself.167 That is why many scholars call for the reproduction right to be completely repealed from copyright doctrine and propose a more logical and productive alternative.168

Historically, the original Berne Act of 1883 did not contain an exclusive right for reproduction.169 It was added as a result of Stockholm Revision Conference held in Sweden in 1967.170 Similarly, from 1790 to 1909, US copyright law did not grant

166 Brian Fitzgerald and Anne Fitzgerald, Intellectual Property in Principle, above Ch n 24, 108. 167 Jane C. Ginsburg, ‘Essay - How Copyright Got a Bad Name For Itself’ (2002) Columbia Journal of Law and the artsarts, Vol. 26, No. 1. 168 The proposed alternative calls for replacing the right to reproduction with right for public commercial distribution. Other commentator preferred to work within the boundaries of the existing reproduction right. Ann Bartow proposes restricting copyright holder’s right to reproduction by simply not deeming every reproduction that is similar to the original work as copyright infringement. Precisely, her proposal offer changes in the interpretive stance of the ‘doctrine of substantial similarity’ by which a subsequent reproduction is judged to be infringement or not. She observes that strictly defining substantial similarity doctrine is more responsive to the distributive and incentivising goals of copyright, see Ann Bartow, ‘Copyrights and Creative Copying’ (2003–2004) University of Ottawa Law & Technology Journal, 77-102. 169 Sam Ricketson, The Berne Convention, above n 144, 367. 170 Ibid 120

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authors an exclusive right to reproduction. Accordingly, there is nothing historically odd about having laws to protect authors without an exclusive right to copy.171

The Internet and its associated digital technologies have radically changed the platform on which we interact with our culture.172 Copying in the networked world is as common as breathing. The exclusive right to copy ‘no longer tracks the necessary or productive control that copyright owner needs’. On the contrary, its broad reach ‘simply introduces strategic costs into the creative process’ that are mostly irrelevant for providing efficient incentive to create.173

In the course of interacting with our current cultural goods on digital platforms, web pages are reproduced into temporary caches so Internet browsers can display them quickly, programs and e-books are copied into the RAM so they can be viewed and a whole file system needs to be copied onto back-up storage for later retrieval in case of errors, software bugs, or malicious intruders. These are examples which would legislatively fall within the scope of copyright owners’ exclusive right to reproduction, and presumptively a violation of the copyright, despite the fact that none of them constitute a serious threat to the copyright holders’ legitimate interests.174

The right of reproduction is drafted ‘extraordinarily broadly in the first instance’. It must be changed, so that uses which current reproduction rights illogically encompass fall into the public domain.175

Yale scholars Ernest Miller and Joan Feigenbaum, supported by Lawrence Lessig176 propose to ‘[e]liminate the right to control copying as a fundamental aspect of copyright and as an organising principle of intellectual-property law.’ 177 In supporting their argument, they contend that it is the distribution of copies to the

171 Lessig, Re-Crafting, above n 5, 70; Ernie Miller & Joan Feigenbaum, Taking the ‘Copy’ out of Copyright, available athttp://www.cis.upenn.edu/-ds/SPYCE/papers/MF.pdf (last visited September, 2012), in this context Miller and Feigenbaum state that: Historically, the fundamental object of copyright law was not a copy or copies of a work but rather publication of the work. The meaning of ‘copy,’ as used in the word copyright, was a reference to the manuscript. The ‘copyright’ was certain exclusive rights with regard to the manuscript, in particular the right to publish – not an exclusive right of reproduction, at 3 172 Lawerence Lessig, ‘Getting Our Values around Copyright Right’ (2010) EDUCAUSE Review. 28 173 Lessig, Re-Crafting, above n 5, 70. 174 Ernie Miller & Joan Feigenbaum, Taking the ‘Copy’ out of Copyright, above n 171, 4-5. 175 J. Cohen, above n 10, 160. 176 Lessig, above n 5, 67-68. 177 Ernie Miller and Joan Feigenbaum, above n 171, 5.

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public that might economically affect the copyright holder not the mere act of reproduction. Therefore, it is the right to public distribution that should be the organising principle for copyright.178

Accordingly, uses that do not involve public distribution, including all personal uses, should be deemed part of the public domain, and not subject to question regarding fair or unfair use179 or assessment on a case by case basis in search of specific exemptions.180 They should not be actionable at all.181 Taking note of that means “taking the copy out of copyright”.

6.2.2.3.3 Derivative Works

An additional example of legislative reform to expand the public domain relates to the scope of derivative works. The right granted to copyright holders to derive works from their original creations should not be introduced in catch-all language. Instead, such a right should be strictly defined to allow follow-on-creativity to flourish, particularly in light of the digital and Internet revolutions.

Derivative works are subsequent intellectual creations based on the reworking of an original copyright work and/or presentation of that work in a different form. Examples include: translation, dramatisation, fictionalisation, making motion picture versions or sound recordings, abridgment and so on.182 The magnitude of creativity within society depends to a large extent on the freedom to derive new works from pre-existing works. 183 Accordingly, one might ask: to what extent should the copyright owner of the underlying work be allowed to control the production of derivative works?

The Berne Convention recognises the protection of derivative works in Article 12. It gives ‘[a]uthors of literary or artistic works … the exclusive right of authorizing

178 Ibid 10. 179 Ibid 9. 180 Ibid. 181 Ibid 10, Ernest Miller and Joan Feigenbaum conclude their arguments by stating that: Logically and theoretically, the right of reproduction is not fundamentally required to be part of a system of copyright... The fact that the right to make copies is considered to be an essential element of copyright is the result of both misinterpretation of the origin of the word “copyright” and the fact that, for many years, the making of copies was a good predictor of intent to infringe, ibid, 12. 182 Compare with the examples provided in US Copyright Act: 17 USC § 101 183 Cohen, above n 10, 163

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adaptations, arrangements and other alterations of their works’.184 Legislators and courts in the Member States may define what constitutes ‘adaptations, arrangements and other alterations’ that fall within the exclusive right of the copyright owner, and the scope thereof.

In whatever form a legislature might decide to set down derivative works rights, it should not be in ‘catch-all language’185 such as that used with regard to the US protection for derivative works, wherein copyright owners are granted control over any works based upon theirs ‘such as a translation, musical arrangement ... or any other form in which a work may be recast, transformed, or adapted.’186

184 Art 12 of the Berne Convention, it should be noted that art 2 (3) contained a rule pertaining to derivative works. It states that ‘translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work’. Here the language of the Berne Convention seems to be broad. It basically tells legislators in the Member States to provide independent protection for derivative works and assure that they do not negatively affect the potential of the pre-existing copyright work. Beyond that legislature are free in casting the scope of derivative works rights. If both provisions read combined, they can be construed in a way to allow legislatures in Member States to allow great deal of creativity and building upon pre-existing works. This might take place by recognizing limited derivative rights for the owners of the original works according to art 12, and allowing subsequent creators to build upon the pre-existing works and provide them with independent protection according to art 3 (2). 185 Christina Bohannan, 'Taming the Derivative Works Right: A Modest Proposal for Reducing Over breadth and Vagueness in Copyright' (2010) Vanderbilt Journal of Entertainment & Technology Law, Vol. 12, No. 4, p. 669, 678; Lydia Pallas Loren, ‘The Changing Nature of Derivative Works in the Face of New Technologies’ (2000) 4 J. Small & Emerging Bus. L. 57, 62-63 186 Most scholars and commentator of the US copyright law have criticised the over breadth of the current provisions of derivative works in US Copyright Act of 1976. In a recent article professor Pamela Samuelson notes that derivative works were considered an independent form of ‘second comers’ creativity’ and they ‘contribute to the advancement of knowledge’. She assers that advances on technology will enable the creation of new forms of derivative works, which the current language of US Copyright Act of 1976 might fail to deal with. She indicates to different types of intellectual creation that are based on pre-existing works and recommends that those creation should not be subjected for the protection of derivative works granted to authors. These include Supplementary Works, Reference Works, Interoperable Software and Add-On Software and Online Framing, Linking, and Pop-Up Advertisements. Professor Samuelson adds that ‘courts should presume that noncommercial remixes, mashups and the like are fair uses unless there is evidence of a meaningful likelihood of harm to the markets rights holders are entitled to control’, Pamela Samuelson, ‘The Quest for a Sound Conception of Copyright's Derivative Work Right’ (2012) Georgetown Law Journal, (Forthcoming) 1,17, 20-24 and 31. Similarly, Professor Christina Bohannan notes that ‘copyright’s derivative works right is excessively Broad’. She argues that ‘definition [in the US Copyright Act] does not actually require that the defendant incorporate any copyrightable expression, but only that the defendant‘s work is ―based on an existing copyright work’ she also notes that granting copyright owners exclusive rights in any other form in which their work may be recast, transformed, or adapted is a catch all language that grant copyright holder control that does not respond to the incentive function. Therefore, she recommends that in order to qualify for derivative works right protection courts should not accept only that ‘the allegedly infringing work is based upon the copyright work but also that it substantially incorporates copyright expression from that work’. Additionally, she recommends that the ‘the catch-all language in the derivative works right must be interpreted more narrowly’ Christina Bohannan, above n 185, 677-678 and 696-697; Professor Julie Cohen argues to the same effect. She contends the availability of a piece of creative work to borrowing and/ or reworking is very important for promoting new forms of creativity within society. The way in which derivarive works right is formulated has a great bearing on the creation of new

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Derivative works rights interfere significantly with the possibility of borrowing from and reworking of pre-existing works. Borrowing and reworking have been central processes in creativity throughout history. 187 The digital age has advanced the potential to build upon pre-existing works enormously. Therefore, a sound conception of rights in derivative works should not place roadblocks on the way to creating new works.188 Taking the following recommendations into consideration would help towards that end:

 The doctrine of the idea-expression dichotomy has to be strictly applied regarding derivative works rights. In granting rights on derivative works, a copyright holder must prove not only that the new work is based upon theirs, but that it clearly incorporates copyright expressions. Failing to do that will risk protecting uncopyrightable ideas.189

 The scope of derivative works rights has to be explicitly specified. It is most likely useful to grant exclusive rights in works derived from certain subject matter in certain cases. Those cases should be specified case by case. Beyond that, others should be allowed to use their imagination to create new works freely.190

 The right to derivative works should not run for the same term as that of the underlying work.191 The derivative right may be very important in encouraging

works. Therefore, if ‘copyright law is to recognize a right of creative access to the cultural landscape, it is precisely this right that must be limited, yet that is precisely what copyright law increasingly refuses to do’ Julie Cohen, above n 10, 163. Other commentators include: Jed Rubinfeld, ‘Freedom of Imagination: Copyright’s Constitutionality’ (2002) 112 YALE L.J. 1, (Professor Rubinfeld argues that exclusive right on derivative works is unconstitutional as it contradics the freedom of imagination granted under the first amendment); Tyler Ochoa, ‘Copyright, ‘Derivative Works, and Fixation: Is Galoob a Mirage or Does the Form (Gen) of the Alleged Derivative Work Matter?’ (2004) 20 Santa Clara Computer & High Technology Law Journal. 991 and Naomi Abe Vogelti, ‘Rethinking Derivative Rights’(1997) 63 Brooklyn Law Review. 1213, 1267 187 Jessica Litman, ‘The Public Domain’, above n 3, 967. 188 Pamela Samuelsson explaining the concept of cultural landscape invented by professor Julie Samuelsson states that: Copyright doctrine should accordingly be reformed to narrow the scope of protection that the law now provides to rights holders against those who reproduce portions of existing works in the course of preparing their own works, particularly those who make transformative derivative work Enriching on Cohen. Pamela Samuelsson, above n 4, 5. 189 Christina Bohannan, above n 185, 677-678. 190 Lessig, Free Culture, above n 90, 208. 191 Net Netanel suggests that authors should be accorded exclusive to derivative works for short period ‘perhaps 5 to 10 years’ and after the elapse of that period ‘others should be free to compete with their own creative interpretations of the same underlying work’, Netanel, above n 98, 198

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creativity; however, its importance may decrease ‘long after the creative work is done’.192

 User-generated content (UGC) is omnipresent on the web. Its quality and quantity show the extent to which creativity wants to be free.193 Recognizing that would mean that UGC, such as mashups and remixes, produced for non- commercial purposes ‘should be treated as non-infringing derivative’194 unless a meaningful likelihood of market harm is proven by the copyright holder.195

6.2.3 Supplementary Mechanisms to Stimulate Creativity and Innovation

An additional policy measure that could be implemented to expand the public domain is to provide supplementary mechanisms to the incentive provided by patent and copyright. These mechanisms include tax benefits and prizes. According to these mechanisms, creators would forfeit ‘exclusive rights for a limited period’ in return for instant reward and thereby placing the public goods immediately into the public domain.

Lawrence Lessig suggested the construction of a ‘public conservancy’ wherein holders of copyright are encouraged to donate their works in return for tax benefits.196 Once donated, works will be free for all to use without permission.

A more interesting supplementary mechanism is the so-called state sponsored prizes system, which several scholars and commentators have suggested should operate in

192 Ibid, Pamela Samuelson contends that ‘Sometimes, authors decide not to enter derivative markets and not to license others to make certain kinds of derivatives’ from policy perspective, she argues, ‘it is a difficult to question the extent to which the law should respect such decisions’. Pamela Samuelson, ‘The Quest for a Sound Conception of Copyright's Derivative, above n 186, 7. 193 Edward Lee, ‘Warming Up to User-Generated Content’ (2008) U ILL L. REV, 1459 194 Samuelson, above n 186, 36. Similarly, see Cohen, above n 10, 163 (Professor Cohen argues that ‘for either economic or moral reasons, to treat noncommercial reworkings one way and commercial reworkings another’) 195 Pamela Samuelson proposed this suggestion after careful examination for the protection of derivative works under the US copyright law. Ibid 36. Professor Samuelson confirms that ‘UGC… has been the subject of a great deal of commentary, virtually all of which argue that UGC should be treated as non-infringing derivatives’. In the same context see: Edward Lee, above n 193, 1527; Daniel Gervais, 'The Tangled Web of UGC: Making Copyright Sense of User-Generated Content' (2009), Vanderbilt Journal of Entertainment and Technology Law, Vol. 11:4, 841; Mary Wong, ‘Tranformative User-Generated Content in Copyright Law: Infringing Derivative Works or Fair Use’ (2008-2009) 11 Vand. J. Ent. & Tech. L. 1075 , 1137. 196 Lessig, Future of Ideas, above n 90, 255.

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some cases as an alternative to the incentive provided by patent monopolies.197 In this context the prize means ‘a payment funded out of general revenue that is made to a researcher conditional on delivering a specified invention’.198 Using the prize systems to stimulate the creation of new inventions has a long history.199 In fact, the anti-patent movement that was active in Europe during the nineteenth-century advocated the prize system as an alternative to patent laws.200

Supplementing our current patent system with lump-sum prizes not only provides people with an incentive to invest in innovative activity, it also ‘will do away with the problem of patents blocking further technological progress’.201 This will occur as a result of releasing the ideas underlying inventions into the public domain free for open competition.202

James Love and Tim Hubbard have intensively researched the potential of state- sponsored prize system for the dilemma of access to medicine 203 discussed in Chapter 4. They contend that designing prize systems to stimulate medical

197 James Boyle, above n 16, 5; Joseph Stiglitz, ‘Give Prizes Not Patents’, NEW SCIENTIST, Sept. 16, 2006, available online at: http://www.bcs.rochester.edu/people/eorhan/2006_New_Scientist.pdf; Joseph Stiglitz, ‘Scrooge and Intellectual Property Rights: A Medical Prize Fund Could Improve the Financing of Drug Innovations’(2006) 333 BRITISH MED. J. 1279; James Love, ‘Measures to Enhance Access to Medical Technologies, and New Methods of Stimulating Medical R&D’ (2007) 40 U.C. DAVIS L. REV. 679; Marchant, Ron, ‘Managing Prize Systems: Some Thoughts on the Options’ (2008) KEStudies, Vol. 2; Daniel R. Cahoy, ‘Breaking Patents’, 32 Mich. J. Int'l L. 461 (2010-2011); Michael Abramowicz, ‘Perfecting Patent Prizes’ (2003) 56 VAND. L. REV. 114 198 Nancy Gallini and Suzanne Scotchmer, ‘Intellectual Property: When Is it the Best Incentive System?’ in Adam B. Jaffe, Josh Lerner and Scott Stern, Innovation Policy and the Economy (MIT Press, 2002) 53 199William W. Fisher, Promises to Keep: Technology, Law, and the Future of Entertainment (Stanford University Press, 2004) (Chapter 6: An Alternative Compensation System); Nancy Gallini and Suzanne Scotchmer, above 198, 53; Benjamin Krohmal, Prominent Innovation Prizes and Reward Programs (KEI Research Note 2007:1, 2007) (Benjamin Krohma demonstrates a brief history of using prizes in several countries since 1714); Brian D. Wright, ‘The Economics of Investment Incentives: Patents, Prizes, and Research Contracts’ (1983) 73 AM. ECON. REV. 691 200 J. H Chang, ‘Intellectual Property Rights and Economic Development: Historical Lessons and Emerging Issues’ above Ch 4 n 138, 298. 201 Ibid 298. 202 In Chapter 5 of this thesis, we compared the effect of the patent monopoly to the free competition. We came to conclude that benefits of competition to the public welfare greatly outweigh that of patent monopoly. See p 164. 203 Tim Hubbard and James Love, ‘A New Trade Framework for Global Healthcare R&D’ (2004) PLoS Biol 2(2); James Love and Tim Hubbard, ‘Bid Idea: Prizes to Stimulate R&D for New Medicines’(2007) 82 Chi.-Kent L. Rev. 1519; James Love and Tim Hubbard, ‘Prizes for Innovation of New Medicines and Vaccines’ (2009) 18 Annals Health L. 155; James Love and Tim Hubbard ‘Make Drugs Affordable: Replace TRIPs-plus by R&D-plus’ Bridges, 2004. James Love has individually authored articles on the same subject: James Love, ‘A New Trade Framework for Global Healthcare R&D’ (Paper for Columbia University’s Workshop on Access to Medicines and the Financing of Innovations in Heath Care, Dec. 4, 2003); James Love, A New Initiative at the WHO, Prizes Rather than Prices, Le Monde diplomatique, May 2006; James Love, ‘Drug Development Incentives to Improve Access to Essential Medicines’ (2006) 84 Bull World Health Organ. 408.

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inventions would be a much better alternative to the current patent system. It would help in mitigating the problem of drug prices in developing countries. 204 They provided a detailed proposal in terms of how to design a prize system,205 how it works, how to finance it, 206 the possible hurdles that may affect it and how to overcome them. 207 Love and Hubbard’s research on prizes as an alternative to patents influenced the ambitious draft of the Medical Innovation Prize Act submitted in 2005 to the US Congress by Congressman Bernard Sanders.208

Additionally, these efforts to adopt a prize system intersect with a proposal made by 162 leading scientists, academic law professors, economists, NGOs, members of parliaments and government officials to the WHO Executive Board and the Commission on Intellectual Property Rights, Innovation and Public Health (CIPIH).209 The proposal called on those bodies to adopt the New Global Medical R&D Treaty as ‘a complete alternative to the existing trade framework involving TRIPs and TRIPs-plus measures on intellectual property rights and drug prices’210

In the same vein, James Boyle has called upon WIPO to consider ‘alternative and additional methods of encouraging and organizing innovation’. He argues that since the current patent system does not function to provide a cure for the diseases of the global poor, WIPO ‘should become the most prominent global institution in which those alternative methods are proposed and debated’.211

In summary, expanding the public domain contributes to strengthening the public ownership of knowledge and culture and alleviates the restrictions and concentration of knowledge and culture allowed under the current IP system. Therefore, such expansion is more responsive to the principles of Islamic Shari’a, particularly those related to stewardship, non-concentration of knowledge, distributive justice, and dissemination of knowledge, which, as demonstrated above, support a legal environment in which creative works are freely available whenever a prevailing public interest exists.

204 James Love and Tim Hubbard, above n 203, 1554. 205 Ibid 1528. 206 Ibid 1529. 207 Ibid 1534. 208 H.R. 417 (109th): Medical Innovation Prize Act of 2005, available online at: http://www.govtrack.us/congress/bills/109/hr417 209 Commission on Intellectual Property Rights, Innovation and Public Health (CIPIH) 210 James Love and Tim Hubbard, above n 203,1531. 211 James Boyle, above n 16, 7

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6.3 Users’ Rights from a Social Justice Perspective

IP systems emerged and developed to provide incentive and protection for creators and owners of ideas and expressions underpinning intellectual products. This approach led to the concentration of knowledge resources and inadequate inclusion of the users of these resources, which undermined equality of opportunity. Islamic Shari’a does not only consider arranging the institution of IP according to incentive rhetoric, it also emphasises the need to ensure wide circulation of knowledge and social justice.212

For social justice concepts to be embedded within IP policy and law, it is necessary to reconceptualise and further enhance the functions, capacities and legal rights of users within the IP system. 213 In order to weave social justice into the fabric of IP, we need to look not only to those responsible for the generation of knowledge products,214 but also to those who will consume those products and potentially build upon them. We need to concern ourselves with the least advantaged groups in our societies, who were left worse off by the imbalance of the IP system,215 especially those users who are cash-strapped or resource poor.216 A growing body of research argues to this end.217

212 See Chapter 5. 213 Some commentators referred to the lack of a theory of justice in the IP systems both domestically and internationally. Their observation is based on the assumption that the IP systems are making knowledge transfer from the information commons into private hands and concentrated in the hands of ‘media conglomerates and integrated life sciences corporations rather than individual scientists and authors’ which leads to ‘raising the level of private monopolistic power to dangerous global heights’. On the global arena, IP is framed ‘with no theory of justice’ Peter Drahos and John Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (Earthscan Publications, London 2002) 16, see also Keith Aoki, 'Distributive and Syncretic Motives in Intellectual Property Law (with Special Reference to Coercion, Agency, and Development)' (2006-2007) 40 U.C. Davis L. Rev, 772 214 Anupam Chander and Madhavi Sunder, ‘Is Nozick Kicking Rawls Ass? Intellectual Property and Social Justice’ (2007) 40 U.C. Davis L. REV. 563, 575, Chander & Sunder submit that ‘intellectual property law might be established for instrumental reasons’ this however, does not necessarily mean that ‘other purposes should not be considered when we set its metes and bounds.’ 215 Compare Margaret Chon, Intellectual Property from Below, above n…106 216 Compare Keith Aoki, 'Distributive and Syncretic Motives in Intellectual Property Law, above n 213,784 and Justin Hughes, ‘Recoding’ Intellectual Property and Overlooked Audience Interests', 77 Tex. L. Rev. 1998-1999, 987. 217 Several scholars and commentators have expressed concerns relating to the lack of social justice within the dominant IP systems and proposed different approaches to restore it. See for instance, Julie Cohen, ‘Creativity and Culture in Copyright Theory’ (2007) 40 U.C. Davis L. Rev. 1151-1205, 1192 (highlighting the relationship between distributed creativity, progress and social justice), Margaret Chon in two of her path breaking articles: Margaret Chon , ‘Intellectual Property and the Development Divide’ (2005-2006) 27 Cardozo L. Rev. at 2817 and ‘Margaret Chon ‘Intellectual Property ‘from Below’ Copyright and Capability for Education’ (2007) 40 U.C. Davis L. Rev. 105 (highlighting the distributional justice concerns of the global IP system in relation to the developing

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Anupam Chander and Madhavi Sunder observe that several initiatives on the international level demonstrate increased attention and acceptance of the need to integrate social justice concerns into IP policymaking. They state that

From Doha to Geneva, from Rio de Janeiro to Ahmedabad, from Palo Alto to New Haven, from Davis to Copenhagen, individuals and groups insist that intellectual property must serve a broad array of human ends. These cities mark the launching pads for some of the growing networks dedicated to improving the distribution of intellectual property.218

In fact, in the realm of IP, inclusion of users and providing them with more opportunities to interact with intellectual goods will not undermine necessary incentives for IP holders. However, wider inclusion of users of information, knowledge and culture is empirically effective in producing more and better information, knowledge and culture as evident from the myriad of examples in the digital world.

The main argument at this point is that Islamic Shari’a promotes wide circulation and dissemination of knowledge, and social justice. Wide circulation and social justice would be served if IP settings were redirected toward openness as opposed to restrictiveness. Openness essentially requires equipping users of IP with solid rights to access, use and re-use of intellectual goods. In this context Youchai Benkler predicts that openness:

[W]ill lead to substantial redistribution of power and money from the twentieth-century producers of information, culture and communications — like Hollywood, the recording

countries, especially with regards to access to medicine) Lateef Mtima and Steven D. Jamar, ‘Fulfilling the Copyright Social Justice Promise: Digitizing Textual Information’ (2010) New York Law School Law Review, Vol. 55, No. 1, p. 77, at 79 and 84 (arguing that copyright law has the potential to serve social justice concerns through empowering users to freely engage with their cultural environment and allowing them to build upon earlier works); Lateef Mtima, ‘Copyright Social Utility and Social Justice Interdependence: A Paradigm for Intellectual Property Empowerment and Digital Entrepreneurship’ (2009-2010) 112 W. Va. L. Rev. 97, at 98 ( Referring to the historical injustices of the copyright system and embarks from the current digital revolution to justify social justice approach toward copyright); Anupam Chander & Madhavi Sunder, ‘Is Nozick Kicking Rawls Ass? Intellectual Property and Social Justice’ (2007) 40 U.C. Davis L. REV. 563, 564-65, at 564 (Comparing the implications of Robert Nozick and John Rawls perspective regarding social justice on the current global IP debate. They admit the prevalence of liberal values of Nozick’s philosophy, but they indicate to major international shifts towards distributional policy of IP (pursuant to Rawls’ approach), which include the Doha Declaration and the WIPO Agenda). 218 Chander and Sander, above n 217, 564.

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industry and the telecommunications giants — to a widely diffuse population around the globe.219

To equip users of IP with solid rights, as encouraged by Islamic Shari’a, IP law and policymakers need to approach IP regulation from different a perspective. This different perspective should be informed by developments in the digital environment. In addition, the policy mind-set should adopt a doctrinal shift by which users’ entitlements are transformed from mere exceptions into legal rights. Finally, IP law and policymakers should review the system to explore avenues for consolidating and expanding the rights of users.

6.3.1 Social Justice, Digital Environment and the IP Bargain.

In regulating the relationship between producers and users of culture and knowledge, IP has profound social effects and raises social justice issues:

[It] regulates the production and distribution of information. Considerations of social justice cannot be peripheral to such a central human construction.220

Taking social justice considerations into account requires a reexamination of ‘the intellectual property bargain from the vantage point of [users].’221 Concentrating principally on the needs and entitlements of IP holders has thus far resulted in the dilemmas discussed in Chapter 4. What we need is a fundamental shift in the philosophy underlying IP’s policymaking. This could be put into action by asking: what is it the users of culture and knowledge should get from the IP bargain? What do they need, want or deserve?222

219 Yochai Benkler, ‘Freedom in the Commons’ (2003), 52 Duke Law Journal, 1249. See also Yochai Benkler, The Wealth of Networks How Social Production Transforms Markets and Freedom (Yale University Press, 2006) 23. 220 Chander and Sander, above n 217, 578. 221 Jessica Litman, ‘Exclusive Right to Read’ (1994-1995) 13 Cardozo artsarts & Ent. L.J. 29, 34. Although, Litman does not explicitly refer to social justice concerns in her work, the arguments put forward lie at the heart of the social justice debate. For instance, she argues that the current United States Copyright law, ‘drafted by the representatives of copyright-intensive businesses and institutions, who were chiefly concerned about their interaction with other copyright-intensive businesses and institutions’ Accordingly, she implies that the results are unjust law that ‘includes a reproduction right, but it surely wouldn't include a ‘reading’ right. It...includes a performance right but not a ‘listening’ right; it ... [has] a display right, but it wouldn't have a ‘viewing’ right. At 37 and 43. 222 Those questions have been built upon earlier questions asked by Jessica Litman in the context of revising copyright law for the information age. Litman’s work is known to argue in favour of empowering user rights or as she termed them ‘copyright liberties’ Litman, Digital Copyright, above n 72, 175; Jessica Litman, ‘Lawful Personal Use’ (2007) Texas Law Review, Vol. 85, 1879

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The emergence of the digital environment has caused a wide scholarly debate regarding IP and social justice. 223 Users now are engaging with culture and knowledge in a manner radically different from that regulated by the IP rules of the industrial revolution. 224 They are now able to drive ‘both the production and distribution of new content and applications.’225 The networked digital platforms have drastically transformed the capacities of users from those of mere consumers to active participants able to report news, mix videos and pictures, and collaborate to produce information goods, such as computer programs (i.e., Linux), encyclopedias (i.e. Wikipedia) 226 or even to develop devices and processes. 227 Those who consume,228 transform, or have the potential to be authors or innovators229 must be included and adequately considered in the IP bargain. It is therefore imperative to conceptualise users’ rights to access and creative play to/with cultural and knowledge goods within the conceptual framework of IP policy. 230 Those rights should be considered no less important than those of IP creators.

223 Chander and Sander, above n 217, 565; Lateef Mtima and Steven Jamar, ‘Fulfilling the Copyright Social Justice Promise: Digitizing Textual Information’, above n 217, 84. 224 Compare Yochai Benkler, 'From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access' (2004) Federal Communication Law Journal, 562- 579; William Patry, ‘Limitations and Exceptions in the Digital Era’ (2011) The Indian Journal of Law and Technology, Vol. 7, 5; Nobuko Kawashima, 'The rise of ‘user creativity’ – Web 2.0 and a new challenge for copyright law and cultural policy' (2010) International Journal of Cultural Policy, 338. 225 Niva Koren, ‘Making Room for Consumers under the DMCA’ (2007) 22 Berkeley Tech. L.J, 1152 226 Ibid. 227Eric von Hippel, Democratizing Innovation: The Evolving Phenomenon of User Innovation (MIT Press, 2005) 1. 228 Jessica Litman highlights the importance of consumptive uses in achieving the purpose of copyright system. She asserts that copyright would only achieve its purpose in encouraging the advancement of culture and knowledge by empowering users to read, listen and view. Jessica Litman, ‘Real Copyright Reform’, above n 146, 12 and 38. 229 Wide range of literature within IP - especially copyright - has examined the consequences of the digital environment on the behaviour of users and the way in which copyright law interacts with such behaviour. Niva Elkin-Koren came up with collective attribution for users of culture in the digital environment ‘consumers-as-participants’ and recommended that copyright law should be reformed to warrant those ‘consumers access rights to serve their interests. Niva Elkin-Koren, above n 225, 1153. Julie Cohen refers to the criticism voiced out against the term ‘consumers’ as ‘misleading and normatively inappropriate connotations about the ways that humans receive and interact with cultural goods. She adopted, instead, the term ‘users’. She identifies category of users which she contends that ‘deserves copyright law's solicitude’ because its patterns of consumption and the extent and direction of its own authorship will be shaped and continually reshaped by the artifacts, conventions, and institutions that make up [their] cultural environment’. Therefore she asserts that ‘the success of a system of copyright depends on both the extent to which its rules permit individuals to engage in creative play and the extent to which they enable contextual play, or degrees of freedom, within the system of culture more generally Julie E. Cohen, ‘The Place of the User in Copyright Law’ (2005) Fordham L. Rev. 347 and 349. 230 Niva Elkin-Koren, ‘Making Room for Consumers’, above n 225, 1152.

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6.3.2 Doctrinal Shift: From Exceptions to Rights

The doctrine in the dominant IP system assumes ‘a natural state of affairs where the ability to control all unauthorized uses is the norm’231 regardless of the social utility of these uses. 232 I have just argued that the digital environment has enabled a breathtaking variety of uses with great potential for social utility. Exceptions’ rhetoric, therefore, seems to place a heavy burden on the potential of such utility.233

A fair and efficient IP system should accommodate and recognise the interests of its parties (owners and users) based on their importance to the overall public interest. This requires a doctrinal shift by which the IP system will be transformed from an author/inventor-centred system to a dual objective system234 that allows broad and equal distribution of expressive and innovative opportunities in a manner that reflects social justice considerations.235

The proposed doctrinal shift should aim at transforming the legal status of permitted uses from mere exceptions, which have to be interpreted narrowly against IP owners’ rights, to legal rights. 236 Doubtful cases of infringement should not be always interpreted in favour of the IP holder, TPMs that unrightfully restrict users from accessing lawful materials should be dealt with and claims of copyright on public domain materials should be effectively deterred.

231 Patry, above n 224, 2. 232 Patry, above n 224, 2. 233 Ibid. 234 Compare Abraham Drassinower, ‘Taking User Rights seriously’ in Michael Geist, In the Public Interest: The Future of Canadian Copyright Law (Irwin Law Inc, 2005) 467 235 Guy Pessach, ‘Reverse Exclusion in Copyright Law: Reconfiguring Users' Rights’ (April 17, 2011). Available at SSRN http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1813082,15 236 A growing body of IP literature (mainly copyright) argues for such a doctrinal shift. This literature is fuelled by increasing judicial recognition of users’ entitlements, the digital revolution and the modern conceptualisation of social justice. See for instance, William Patry, ‘Limitations and Exceptions in the Digital Era’ above n 224 ( advocating adaption of fair use as user right equal to the bundle of exclusive right of IP owner); David Vaver, Copyright Law (Toronto: Irwin Law, 2000) (‘User rights are not just loopholes. Both owner rights and user rights should, therefore, be given the fair and balanced reading) 171. Chan Sara Wei-Ming, ‘Canadian Copyright Reform - 'User Rights' in the Digital Era’ (2009) University of Toronto Faculty of Law Review Vol. 67, No. 247 (arguing that users entitlements should not be considered as exception from copyright but’central aspects of copyright law inextricably embedded in authorship itself’) Abraham Drassinower, ‘Taking User Rights seriously’, above n 234, 479 (observes the language of justice and fairness in Canadian copyright jurisprudence makes the inclusion of copyright users as a holders of rights that should be regarded); Guy Pessach, above n235, 2 ( arguing that ‘permitted uses of copyright works should also be conceptualized as in-rem rights’).

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A decade ago, the Canadian Supreme Court in CCH Canadian Ltd. v. Law Society of Upper Canada issued a bold landmark judgement in which it explicitly recognized the concept of users’ rights.237 The judgement dealt with what is known in Canadian Copyright Act as ‘fair dealing’. The Court stated that fair dealing is ‘perhaps more properly understood as an integral part of the Copyright Act than simply a defence’. It specifically termed it as ‘a user’s right’ which ‘must not be interpreted restrictively’. The Court even cited David Vaver who argues that ‘user rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.’238

Canadian IP scholars and commentators celebrated the decision.239 One commentator stated that:

[By] introducing the language of user rights and by adopting a broad and expansive interpretation of ‘fair dealing’ the Supreme Court has shifted the locus of analysis away from the preeminence of the copyright interest. What is therefore being advanced is equality of treatment of both rights-holders and users in which neither interest takes precedence over the other.240

IP is supposed to strike a balance between two different sets of interests: those of authors/inventors and those of users. Creativity and innovation are cumulative social processes, and users of knowledge and culture are important players in their progress. As a result the entitlements of users should not be considered exceptions. On the contrary, IP laws should be structured to empower users in a just and appropriate manner.

237 CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004. 238CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004, para 48 239 Despite the fact that in CCH, the Canadian Supreme Court used the term exceptions and users’ rights interchangeably, Canadian IP commentators considered it a fundamental shift in copyright discourse in Canada. For instance, Abraham Drassinower notes that the decision reflects the principles of justice and fairness by incoprprating the interests of users within the copyright agenda. Abraham Drassinower, ‘Taking User Rights seriously’ above n 234, 479; Daniel Gervais, ‘Canadian copyright law post-CCH’ (2005) Intellectual Property Journal, 157. Another commentator noted that ‘CCH dismantled the view that the protection of author rights was the only or best way to protect the public interest in copyright, confirming that user rights require equal consideration with owner rights.’ Chan Sara Wei-Ming, ‘Canadian Copyright Reform - 'User Rights' in the Digital Era’, above n 236, 246. For more see Myra Tawfik, ‘International Copyright Law: W[h]ither Users Right?’ in Michael Geist, In the Public Interest: The Future of Canadian Copyright Law (Irwin Law Inc, 2005) 85; Jane Bailey, ‘Deflating the Michelin Man: Protection Users’ rights in the Canadian Copyright Reform Process’ in Michael Geist In the Public Interest: The Future of Canadian Copyright Law Irwin Law Inc (2005) 126. 240 Myra. J. Tawfik, ‘International Copyright Law and 'Fair Dealing' as a ‘User Right’ (April – June 2005) e-Copyright Bulletin, 6 http://unesdoc.unesco.org/images/0014/001400/140025e.pdf

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6.3.3 Empowering Users of IP

The principles of Islamic Shari’a encourage greater openness, reduction of the concentration of private powers over knowledge and cultural resources and promote inclusion of users of intellectual products. This subsection introduces several examples to empower users to achieve these policy objectives.

6.3.3.1 Recognising Users

The international IP system seems to increasingly recognise distributive justice concerns within its baseline rules. 241 For instance, the objectives of the TRIPs Agreement state that ‘[the] protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge’ (emphasis added). 242 Margaret Chon argues that ‘the “mutual advantage” language of TRIPs Article 7 suggests that this second distributive justice nuance regarding balance is entangled with the first’.243 Domestic IP law should embrace the ‘mutual advantage language’ in a clearer manner.

The absence of users’ rights language from the basic rules of the IP system contributes to ‘shaping both its unquestioned rules and its thorniest dilemmas’.244 It legitimises ‘judicially driven elision and encourages right holders ... to ignore the user as a matter of practice’.245

Therefore, IP laws should adjust their baseline rules from the vague language of ‘striking a balance’ between creators and the public interest to a language that recognizes users’ rights as integral part of IP system side by side with the rights of creators.246 None of the rights should override the other unless the public interest dictates otherwise.247

241 Chon, above n 217,105 242 art 7 of the TRIPS, The preamble of WCT contains very similar language. 243 Chon, above n 217, 106. 244 Cohen, above n 229, 347. 245 Ibid 373. 246 Compare Julie Cohen, above n 229, 374. 247 Some of the possible benefits that could result from such recognition are construing doubtful cases of infringement for users. Additional advantage is preserving users’ entitlements from being undermined by retroactive application of IP legislation that extend the protection of IP in term and scope. For instance central provision of users’ rights would have prevented CTEA from applying to works that have expired or about to expire.

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6.3.3.2 Public Fair Use Right

A public fair use right means granting users of protected intellectual products legal entitlements to access, use and re-use those products. This right has to be constructed to stand as counterpart to the bundle of exclusive rights of the IP holders.248 The adoption of a public fair use right will contribute to reducing the concentration of power over knowledge and cultural resources. It will also empower users by equipping them with sufficient legal capacity to access knowledge and culture, and participate in their creation. Reducing the concentration of knowledge and cultural resources, and promoting openness and inclusion for users of intellectual products are policy objectives which are compatible with the principles of Islamic Shari’a.

We live in a world of unparalleled democratic creativity where millions of people create, produce and distribute in a socially desirable ways.249 IP has to be based on principles that consider this and allow for the redistribution of expressive and innovative opportunities when the public interest so dictates.

In copyright law, users need to be allowed to interact with already-existing copyright expressions in different ways: to read, listen and view, transform, make copy, sell a copy, criticise, parody or quote and so on.

In the overwhelming majority of domestic copyright laws, users are granted a specific list of ‘exceptions’250 to permit certain unauthorised use when there is no

248 Sun Haochen, 'Fair Use as a Collective User Right' (2011) North Carolina Law Review, Vol. 90, No. 125 (Sun argues that fair use in copyright law should not be regarded as a mere individual right enjoyed by each user separately, rather, it should be perceived as a protector for the public interest and therefore as a collective public right) 129-130 . 249 Patry, above n 224, 5. Wendy J. Gordon and Daniel Bahls, 'The Public's Right to Fair Use: Amending Section 107 to Avoid the Fared Use Fallacy' (2007) Utah L. Rev. 619, 621. 250Copyright Laws permit several unauthorised uses of copyright materials for different purposes. These permitted uses are known as limitations and exceptions designed as mechanism of access and dissemination of knowledge which in turn central to many human activities and values, such as ‘liberty, the exercise of political power and economic, social and personal advancement’, Ruth. L. Okidiji, ‘The International Copyright System: Limitations, Exceptions and Public Interest Considerations for Developing Countries’ (2006) International Centre for Trade and Sustainable Development (ICTSD) 303. The most typical example of an intensive list of permitted uses is article 5 of the EC Information Society Directive. The said directive contained 21 ‘exceptions’ from copyright infringement. These ‘exceptions permit various uses ranging from temporary acts of reproduction under article 5(1), the private copying exception under article 5(2)(b) of the Directive, exceptions for the benefit of libraries, educational establishments, archives and museums under articles 5(2)(c) and 5(3)(n), the exception for the purpose of reporting of current events under article 5(3)(c), the limitations for quotation, criticism and review under article 5(3) (d) and the parody exception under article 5(3)(k), Commission of the European Communities, ‘Commission Staff Working Document:

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conflict with the author’s opportunity to exploit his or her work and when such uses do not unreasonably prejudice the legitimate interest of the rights holder.251 There no inherent problem with this so long as the status of the permitted uses is shifted from ‘exceptions’ to rights, as discussed above.

However, what would be more conducive to users’ interests in the digital environment is to have a public fair use right as part of the overall design of copyright law.252This right should be crafted to empower users to defend their rights to access and participate in the progress of their cultural medium.253

This right should be a dynamic one ‘that can quickly respond to changes in behaviour, rather than waiting for governments to legislate permitted innovation’.254 It should contain principles which ensure that creativity flourishes in the face of the currently ‘overly exuberant exclusive rights’. 255 The UK Review of Intellectual Property and Growth (RIPG) indicates that the US fair use model has some of these attributes.256 Fair use in the US Copyright Act is regulated under section 107. It states that:

Notwithstanding the provisions of Sections 106 and 106 A, the fair use of a copyright work including such use by reproduction in copies or phonorecords or by any other means specified by that Section , for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an

Report to the Council, the European Parliament and the Economic and Social Committee on the application of Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society’ (Brussels, 30.11.2007) at 3. For a comparative study between the EU art 5 and US art 107 see Sam Ricketson, ‘WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the Digital Environment’ , (Geneva, Ninth Session, June 23 to 27, 2003) 72. 251 Since Stockholm Conference in 1967, the international IP system, namely the Berne Convention, requires Member states to adhere to certain criteria before introducing any restrictions to the copyright holder set of exclusive rights. These restrictions are known as Three Step Test (TST). After Berne, it was adopted in WCT, and TRIPS in which it was extended to patent protection (see art 30). The 3ST simply puts three conditions that legislatures have to consider before introducing any right to the users, namely, the new user’s right has to be confined to specific case, does not contradict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the right holder. Sam Ricketson, The Three-Step Test, deemed qualities, libraries and closed Exceptions (Center for Copyright Studies, 2002) 22. 252 Pierre N. Leval, 'Toward a Fair Use Standard (Mar., 1990) Harvard Law Review, Vol. 103, No. 5, pp. 1105-1136, at 1110. 253 Sun, above n 248, 172. 254 Patry, above n 224, 8. 255 Ibid. 256 Ian Hargreaves, Digital Opportunity: A Review of Intellectual Property and Growth (2011) http://www.ipo.gov.uk/ipreview-finalreport.pdf

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infringement of copyright. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include:

(1) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

(2) The nature of the copyright work;

(3) The amount and substantiality of the portion used in relation to the copyright work as a whole; and

(4) The effect of the use upon the potential market for, or value of, the copyright work.

However, it is not argued here that the US model of fair use should be copied. It is far from being ideal. The Second Circuit of the US Courts of Appeals described US fair use as ‘the most troublesome in the whole law of copyright’.257 Pierre Leval, a renowned US judge, argues that ‘judges do not share a consensus on the meaning of fair use’.258 He gives examples for some of the ambiguities built into the standards mentioned above. For instance, with regard to the purpose and character of secondary use, beyond stating special consideration for educational and non-profit purposes, ‘the status tells little about what to look for in the purpose and nature’. Similarly, ‘it gives no clue regarding the significance of the nature of the copyright works’.259

Moreover, Michael Madison has authored comprehensive critiques of the US fair use doctrine.260 Madison points out that although section 107 states that ‘fair use is not an infringement’, courts in the US consider it an affirmative defence and place the burden of proof on the copyright users.261

Fair use as a public user right should be structured as being a right for the public dedicated to the general welfare of society.262

257 Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir. 1939), cited in Michael J. Madison, 'Rewriting Fair Use and the Future of Copyright Reform’ (2005) Cardozo artsarts & Entertainment Law Journal, Vol. 23, No. 2, 391. 258 Leval, above n 252, 1116. 259 Ibid. 260 Michael J. Madison, ‘A Pattern-Oriented Approach to Fair Use’ (2004) 45 Wm. & Mary L. Rev. 1525; Michael J. Madison, ‘Legal-Ware: Contract and Copyright in the Digital Age’(1998) 67 Fordham Law Review. 1025 . 261 Madison, above n 260, (although the Canadian Supreme court recognised the fair dealing as ‘user right’ it affirmed the requirement that users have to prove the their use is fair) at para 68 262 Sun, above n 248, 129-130; Gordon and Bahls, above n 249, 651, 653 and 655.

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As a start, policymakers need to not only focus on authors, works and markets, but equally on ‘how creative things are produced as well in terms of who does the producing’.263 The exclusive rights of copyright holders should not extend to any use of copyright work that society regularly values in itself.264 The case for fair use should be established so long as the secondary use is ‘connected to some social structure or social practice’.265 If the secondary use contributes to the production of socially desirable outcome, it should not be considered as copyright violation unless the copyright holder proves that the benefits of protecting his work outweigh the benefit resulting from the secondary use.

Therefore, fair use should not be structured as being a tolerated departure from the grand conception of exclusive rights,266 but as a mechanism to achieve distributive justice in terms of re-allocating opportunities to produce creative works that are of value to society. Secondary uses which transform (remixes and mashups), are based upon (criticism, comment and scholarship) or facilitate access to copyright materials (Google Book Project) should be assumed to be fair use unless the copyright holder proves otherwise.

To achieve this desirable end, a public fair use provision must be structured in consideration of the following:

1. The public fair use right as a mechanism to prevent the concentration of knowledge resources and achieve social justice by wide and adequate inclusion for users.

2. The importance of users as effective participants in the process of creativity in the digital environment.

3. A secondary user should be asked to establish that her use has a socially desirable outcome.

4. Once the user is successful in establishing the benefits of the secondary use, the copyright holder should prove not only that there will be a negative effect on the

263 Madison, above n 260, 391. 264 Ibid 406. 265 Ibid. 266 Leval, above n 252, 1110.

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market of his or her work, but also that the benefits of protecting the work potentially exceed the benefits of the secondary use.

Ruth Okediji argues in favour of an international fair use doctrine.267 She contends that the current international approach, especially under the TRIPs, is an owner- centric maximalist approach. Therefore, fair user doctrine is dearly needed to safeguard users’ interests in the global market of copyright works.268

With regard to patents, some commentators have argued that introducing a fair use doctrine in patent law is ‘preferable to alternative piecemeal solutions’.269 Patent law grants users of patented subject matters the right to engage in unauthorised use under various doctrines such as the reverse doctrine of equivalents, the doctrine of blocking patent, the experimental use defence and the doctrine of patent exhaustion.270 It is argued that these doctrines should be substituted by a fair use right, analogous to that of fair use in copyright law.271

The main justifications for patent fair use rights are: the inadequacy of the existing permitted uses in light of the adverse effects of the TRIPs on public health issues; and the increasing importance of innovation paradigms based on user innovation,272 where ordinary users are becoming able to make substantial modifications on patented subject matters.273

A fair use right if integrated into patent law would be compatible with the principles of distributive justice as it may assist in allowing the provision of essential medicines at low costs to those with very low income.274 Moreover, it may contribute to the re-

267 Ruth Okidiji, ‘Toward an International Fair Use Doctrine’ (2000-2001) 39 Colum. J. Transnat'l L. 75 268 Ibid 84-87. 269 Maureen A. O'Rourke, ‘Toward a Doctine of Fair Use in Patent Law’ (2000) 100 Colum L. Rev. 1177, 1181. 270 Ibid 1193. Katherine Strandburg, ‘Patent Fair Use 2.0’ (2011) New York University Law and Economics Working Papers, 20. 271 Ibid, 17. 272 Katherine J. Strandburg, ‘Users as Innovators: Implications for Patent Doctrine’ (2008) 79 U. Colo. L. Rev, 467. Strandburg refers to various examples of users innovation in various fields of industry and profession such as steel, sport equipments, construction and medical equipment at 468 273 Strandburg, above n 270, 4, 5, 29. 274 Ibid, 8, under this view, producers of generic drugs may resort to fair user in case of a failure to obtain licence from the patent holder.

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allocation of opportunities for users to make substantial improvements on patented technology or even create new inventions.275

6.3.3.3 The Right to Circumvent

The international IP system, under WCT and WPPT, stipulated that Member States shall provide ‘adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights’276

The language of theses Treaties ‘[leaves] discretion to the member states over how to discharge their obligations’.277 This means that domestic copyright laws have to contain technological protection measures (TMPs). However, protection of TPMs should not be so broad as to overlook the interests of users. In the US, the protection of TPMs introduced by DMCA ‘went beyond this requirement to prohibit the circumvention of any technological measure that effectively controls access to, or use of, a copyright work’. 278 The result is a diminution of user rights to make permitted uses under the copyright act.

The DMCA’s TPM provisions prohibit the circumvention of technological protection of access or use, even if such access or use is sanctioned under fair use rights, specific permitted uses or even if the used content has fallen into the public domain. 279 For instance, unauthorised use of copyright works in classroom instruction, in certain religious services, and creation of ‘back-up’ copies of computer programs, which are regarded as ‘exceptions’ from infringement under the

275 Ibid 29. 276 Art 11 of the WCT compare with art 18 of the WPPT. Technological protection measures (TPMs) are sometimes known as digital right management (DRM). TMPs are technologies that allow copyright holders to wield electronic protective measures to monitor or control any kind of exploitation of their work that is presented in a digital form. Jane C. Ginsburg, 'Copyright and Control over New Technologies of Dissemination' (2001) Columbia Law Review, Vol. 101, No. 7 pp. 1613- 1647, 1615 and Pamela Samuelson and Jason Schultz, 'Should Copyright Owners Have to Give Notice of Their Use of Technical Protection Measures' (2007) 6 J.on Telecomm.& High Tech.L, 42. TMPs were adopted for the first time internationally by the WCT and WPPT and entered into force in 2002, the US experience has proved that TPMs have great potential to infringe user rights to access and transform content to which they have legitimate access. Therefore, TMPs were the subject of omnipresent criticism and many called for them to be rethought in a manner that does not affect the legitimate rights of users as will be discussed below. 277 Peter K. Yu, 'Anticircumvention and Anti-Anticircumvention' (2006) Denver University Law Review, Vol. 84, pp. 13-77, 32. 278 Ibid. 279 For instance, if a museum hold a digital copy of a book the copyright of which has expired, circumventing its code to read it or copy it is prohibited under the current anti circumvention provisions.

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US Copyright Act, are not allowed under anti-circumvention provisions of DMCA.280 ‘If a work is protected by technical controls, circumventing those controls to act in a manner privileged under the copyright act is still prohibited’.281

In integrating TPM provisions into domestic copyright laws, users’ interests in legitimate access and use of cultural artifacts should not be neglected.282 The TPM provisions should not be tailored to grant copyright holders rights which the copyright law itself does not offer.283

Therefore, provisions relating to TPMs must be accompanied by other provisions that allow users to circumvent technological measures if those measures restrict control over cultural goods to which users have legitimate access.284

6.3.3.4 Protection from Shrink-wrap Licenses

In addition to TPMs, copyright holders resort to contract law to impose restrictions on users’ rights to use or exploit intellectual goods which users have paid for.285 Owners of intellectual goods, particularly software and E-books,286 draft adhesion contracts which contain provisions that compel their customers to waive some of the rights granted to them under copyright law.287 These unbargained agreements are widely known as shrink-wrap licenses.288

It is hard to find retail software that is not subject to a shrink-wrap license, the central provision of which states that ‘the software is licensed, not sold’.289 The

280 Dan L. Burk, Anticircumvention Misuse’ (2003) 50 UCLA L. REV. 1095, 1138, 1107 281 Ibid. 282 Niva Koren, above n 225, 1143. 283 Ibid, 1150. 284 Yu, above n 277, 77; Niva Koren, above n 225, 1149; Guy Pessach, above n 235,1; Rebecca Tushnet, 'I Put You There: User-Generated Content and Anticircumvention' (2010) 12 Vand. J. Ent. & Tech. L. 889-946, 941, Pamela Samuelson and Jason Schultz proposed that copyright holders should be requested to place notice on the digital content they sell to copyright users. Placing such notice, they argue, will most likely to affect decisions about whether to purchase technically protected products and may induce shopping for alternatives’. Pamela Samuelson and Jason Schultz, above n 276, 74. 285 Jessica Litman, Digital Copyright, above n 72, 182. 286 Michael Seringhaus, ‘Note, E-Book Transactions: Amazon ‘Kindles’ the Copy Ownership Debate’ (2009) 12 YALE J.L. & TECH. 147, 172–75, 247 287Mark Lemely, ‘Intellectual Property and Shrink Wrap Licenses’ (1995) Southern California Law Review, 1239 288 Ibid. 289 Jim Graves, 'Who Owns a Copy?: The Ninth Circuit Misses an Opportunity to Reaffirm the Right to Use and Resell Digital Works' (2011) Cybaris® An Intellectual Property Law Review, 46, compare 289 Michael Seringhaus, above n 286, 172.

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holders of copyright impose ‘take or leave it’ conditions that oblige their customers not to copy the programme or resell it to third party.290 These types of conditions thwart the purpose of first sale right and the right to make a back up copy or copying for archival purposes.291

It has been argued throughout this thesis that IP grants owners rights beyond those needed to incentivise them. Shrink-wrap licenses add more salt to the wound. These licences dispossess copyright users from their already limited set of rights and re- draw lines between copyright holders and users that were already drawn in favour of the former.292 As the UK RIPG has recently recommended, a wise policy direction would be to craft the law to make it clear that the rights of users should not be overridden by contractual arrangements.293

6.3.3.5 Protection against Copyfraud

Copyright’s strong protection for copyright holders is not balanced by explicit protection for users’ rights over public domain materials. Jason Mazzone believes that the lack of explicit protection for users’ rights creates strong incentives for copyright holders to commit so-called copyfraud, which means, claiming false copyright in public domain materials.294

Publishers may tend to place fictitious notices on books or other intellectual products indicating their ownership of a copyright in a certain item. These notices ‘are often accompanied by threatened litigation for reproducing a work without the putative “owner’s” permission’.295 This results in users seeking licenses and paying fees for

290 For instance, under US Copyright Act the right to resell is regulated under s 109 (first sale doctrine) and the right to copy for private purposes is regulated under s 117 (essential step defense), some commentators on the US copyright law criticise allowing copyright holders to insert provisions in a contract by which first sale doctrine or essential step defense are deactivated. One commentator argues that: if it is hard to imagine allowing copyright holders to compel users to waive their fair user rights under contractual arrangements, ‘Courts would reach better results if they thought of s 109 and s 117 as specific fair uses’ Brian W. Carver, ‘Why License Agreements Do Not Control Copy Ownership: First Sales and Essential Copies’ (2010) 25 Berkeley Tech. L.J. 1887, 1949 291 Ibid 1946-1948 292 Lemely, above n 287, 1240; Brian W. Carver above n 290, 1949. 293 Ian Hargreaves, Digital Opportunity: A Review of Intellectual Property and Growth, above n 256, 51, other commentators have argued in the same direction see: Lemely, above n 287, 1240; Brian W. Carver above n 1949; Jim Graves, above n 289, 72. 294 Jason Mazzone, 'Copyfraud' (2006) New York University Law Review, Vol. 81, p. 1026, 1028 and 1029; Nathaniel Poor, ‘Copyright Notices in Traditional and New Media Journals: Lies, Damned Lies, and Copyright Notices’ (2008) Journal of Computer-Mediated Communication 14, 101–126 ª 2008, 106 295 Jason Mazzone, 'Copyfraud', above n 294, 1028.

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materials they are entitled to use without any compensation. 296 The negative consequences of copyfraud include: enriching malicious publishers without proper cause, stifling legal types of reproduction that might contribute to increased creativity within society and unlawfully restricting free speech.297

Just legislative policy should provide users of intellectual products placed in the public domain with protection analogous to that granted to copyright holders in cases of infringement of their copyright. Jason Mazzone recommends that:

 copyright law should make false claims to copyright actionable;298

 copyright law should also permit users injured by copyfraud to seek damages from malicious publishers;

 copyright law should provide incentive to those who track down copyfraud and bring its perpetrators to justice;

 publishers should be required to clearly indicate if the published work is in the public domain or specify which portions of the published work are protected and which are not; and

 there should be ‘a national registry and a symbol’ for public domain works so users could know that a certain work is free to use for their own purposes.299

An IP system that is compatible with the principles of khilafah, non-concentration, dissemination of knowledge and social justice under Islamic Shari’a would do more than listing a set of exclusive rights for IP holder and grant ‘limited exceptions’ to users. On the contrary, a Shari’a-friendly IP system would perceive knowledge as a public good not owned by any particular individual and designate rules that are responsive to the cumulative social processes of creativity and innovation. Empowering users is essential to that end.

296 Ibid 1030. 297 Ibid. 298 Peter Super argues that there should be ‘penalties for copyfraud (false claim of copyright) at least as severe as the penalties for infringement. Peter Suber, Open access and copyright, the SPARC Open Access Newsletter, issue #159 (July 2, 2011) available online at http://www.earlham.edu/~peters/fos/newsletter/07-02-11.htm#copyright 299 Ibid 1032. Cory Tadlock, ‘Copyright Misuse, Fair Use, and Abuse: How. Sports and Media Companies are Overreaching Their Copyright Protections’ (2008) 7 J. Marshall Rev. Intell. Prop. L, 643, for similar arguments regarding patent law see Jeanne C. Fromer, 'Claiming Intellectual Property’ (Spring 2009), University of Chicago Law Review, Vol. 76, No. 2, pp. 719-796, 779.

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6.4. Collaborative Modalities of Knowledge and Cultural Production (Intellectual Takaful)

There is a set of principles which constitute Islamic Shari’a’s perspective on the production of knowledge and culture. Among these principles are: prohibition of the concentration of wealth, distributive justice through sharing and collaboration (takaful) and promotion of the dissemination of knowledge.

Internationally renowned scholars such as Eric Von Hippel, Elinor Ostromand Yochai Benker, supported by a growing body of research from various fields of knowledge such as economics, organisational sociology and psychology suggest that knowledge and culture can be effectively produced by groups of individuals through the adoption of cooperative systems as opposed to monopolistic ones.

Knowledge and cultural production through cooperative systems is largely compatible with Shari’a’s principles on the non-concentration of wealth, distributive justice and the dissemination of knowledge. These cooperative systems tend to allow wide distribution of ideas and information rather than concentrating them among a few persons. The production process is conducted by groups of individuals through sharing and cooperating, which in turn does not deny anyone within the society the opportunity to participate in the production process. 300 Moreover, sharing and cooperating are the underlying values of the concept of takaful. Therefore, modalities of knowledge and cultural production that are based on these values are highly compatible with Islamic Shari’a.

For decades, Eric Von Hippel has challenged the long held assumption that ‘product innovations are typically developed by product manufacturers’. 301 He points to empirical studies which demonstrate that many users of innovations (10 to 40%) engage in the development and modification of information and physical products in different fields of production, 302 such as software programs, integrated circuits, sporting equipments, medical equipments and computer telephony integration

300 Von Hippel, above n 227, 10 and Jason Potts, ‘Innovation in the Commons’ (School Economics & Finance, RMIT University, Australia, 2012) 8, http://www.aomevents.com/media/files/ISS%202012/Potts.pdf 301 Eric von Hippel, Sources of Innovation (Oxford University Press, 1988) 3 302 Von Hippel, above n 227, 2-4.

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systems. 303 Von Hippel adds that the contributions made by users are growing progressively as a result of ongoing advances in computer and communication technologies.304

Von Hippel asserts that innovations made by users have positive social welfare implications.305 These positive implications, however, are dependent on individual users’ willingness to diffuse what they have developed out into the community.306 Diffusion means that ‘intellectual property rights to that information are voluntarily given up by the innovator, and all interested parties are given access to it—the information becomes a public good’.307 If the lead users do not diffuse what they have done, the rest of users with similar needs will have to independently engage in developing similar innovations. This undesired concentration of knowledge in the hands of some lead users is ‘a poor use of resources from the viewpoint of social welfare’.308

Von Hippel refers to the practices of Free Open Source Software (FOSS) where developers of certain software waive some of their IP rights on the source code so other users can study or modify it. The result is a ‘collective or community effort’ of great number of users towards the provision of public goods.309 The experience of FOSS has ignited the light for studies on the efficacy of collective action in providing knowledge resources.310

303 Ibid 11; Georg von Krogh and Eric von Hippel, ‘The Promise of Research on Open Source Software’ (2006) Management Science, 981; Eric von Hippel, Sources of Innovation, above n 301,117. 304 Von Hippel, above n 227, 3. 305Von Hippel, above n 227, 9 Joachim Henkel and Eric von Hippel have explored the social welfare implications of user innovation. They found that, user innovation mitigate the negative effects of innovation systems depend only on manufacturers. As a result social welfare is very probably increased by the presence of innovations freely revealed by users. Joachim Henkel and Eric von Hippel, 'Welfare Implications of User Innovation' (2005) Journal of Technology Transfer 1-2, 73. Eric Von Hippel argues elsewhere that the fact that social welfare is increased by user innovation should shift the attention of policymakers towards supporting ‘user innovation’, or at least should ensure that legislation and regulations do not favor manufacturers at the expense of user innovators’. Eric von Hippel, Democratizing Innovation above n 227, 12 306 Eric Von Hippel, ‘Open Source Software Projects as User Innovation Networks’, Open Source Software: Economics, Law and Policy, Toulouse, France, June 20-21, 2002, 2; Suzanne Scotchmer, ‘Openness, Open Source, and the Veil of Ignorance’ (2010) American Economic Association, 2 307 Von Hippel, above n 227, 9. 308 Ibid. 309 In this regard Von Hippel notes that FOSS contributors ‘have pioneered new ideas and practices with respect to licensing IP and the organization of innovative efforts. There is no reason to believe that these practices cannot spread to other areas of economic and social activity’ Georg von Krogh and Eric von Hippel, above n 303, 982. 310 Von Hippel, above n 227, 11.

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6.4.1 Collective Action and Knowledge Production

The work of Nobel Prize laureate Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action, 311 challenges Garrett Hardin’ s famous theory on the Tragedy of the Commons which argues that the increased consumption of limited common pool resources will lead to the degradation of these resources. 312 To the contrary, Ostrom argues that individuals can work under a collective action paradigm to increase and develop the common pool resources for their mutual benefit.313 In a more recent study,314 Ostrom considered the impact of the collective action paradigm on the creation of knowledge resources. 315 She pointed out that as overgrazing had been recognized as a dilemma in tangible commons, the commodification and enclosure is the dilemma of intangible or knowledge commons.316 Ostrom indicates that such a dilemma can be dealt with efficiently by adopting a collective action paradigm if a group of individuals can cooperate under a structure of rules by which they can create and share knowledge and culture.317

For instance, she argues elsewhere in a study with Charlotte Hess, that the impact of collective action by a group of people in the creation of scholarly information is evident. They concluded that ‘collective action and new institutional design play as

311 Charlotte Hess, Elinor Ostrom, Understanding Knowledge as a Commons: From Theory to Practice (MIT Press, 2007) (Commons is a general term that refers to a resource shared by a group of people). 312 Garrett Hardin, ‘the Tragedy of the Commons’ (Dec. 13, 1968) Science, New Series, Vol. 162, No. 3859., pp. 1243-1248. 313 Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge University Press, 1990) 2, 14 and 15. 314 Charlotte Hess, Elinor Ostrom, above n 311. 315 Charlotte Hess and Elinor Ostrom, 'Ideas, artifacts, and Facilities: Information as a Common-Pool Resource' (2003) Law and Contemporary Problems, Vol. 66, No. 1/2. (This paper and most of Ostrom’s work on knowledge as a common pool resource were co-authored with Charlotte Hess; however, the framework used in this study is the result if Ostrom’s research on common pool resources of the tangible world) 113. Other articles co-authored by Charlotte Hess and Elinor Ostrom include: A Framework for Analyzing Scholarly Communication as a Commons (2004), Digital Library of the Commons (United States), available online at: http://en.scientificcommons.org/1544465; A framework for analysing the microbiological commons, UNESCO 2006, available online at: http://dlc.dlib.indiana.edu/dlc/bitstream/handle/10535/6433/microbiological%20commons.pdf?sequen ce=1 316 Ibid, 5. 317 Elinor Ostrom and Charlotte Hess, A Framework for Analyzing the Knowledge Commons in Charlotte Hess, Elinor Ostrom, Understanding Knowledge As a Commons: From Theory to Practice, above 311, 54. Jason Pott identifies the innovation problem as a collective action problem the solution of which lies in an institution which he calls ‘an Innovation Commons’, that is: an institution in which private agents engage in collective action (i.e. cooperate) to solve the innovation problem by developing rules for the creation and sharing of innovation resources (both material and informational) and for the governance of those resources. Jason Potts, above n 300, 8-9

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large a part in the shaping of scholarly information as do legal restrictions and market forces.’318

The new forms of communication and production enabled by digital technologies, coupled with increasing affordability (eg cheap high performance computers and fast broad band networks) have made cooperation to develop and share knowledge resources ubiquitous.319 This is evident from the increasing predominance of user- generated content,320 increasing open-source models of creativity and innovation,321 increased importance of sharing and re-use and the advances of social network learning and open network organisational forms.322

As commentator James Pott puts it:

Commons tend to emerge spontaneously from the mutual accommodation and agreements made between communities of interacting agents. We can observe these inflows of resources and information between firms in informal knowledge sharing about the development of particular technologies and within particular, usually emergent, market niches.323

6.4.2 Cooperation through Technology

No one has captured the impact of digital technologies on cooperation and knowledge production better that Yochai Benkler.

For more than a decade, Benkler documented the substantial developments in computer and communication technologies and has predicted their significant impacts in facilitating the production and dissemination of knowledge goods. 324

318 Charlotte Hess and Elinor Ostrom, 'Ideas, artifacts, and Facilities: Information as a Common-Pool Resource', above n 315, 113. 319 Stephen Voyce, Toward an Open Source Poetics: Appropriation, Collaboration, and the Commons (Wayne State University Press, 2011) 407. 320 Edward Lee, ‘Warming Up to User-Generated Content’ (2008) U ILL L. REV, 1459 321 Carliss Y. Baldwin and Eric A. Von Hippel, 'Modeling a Paradigm Shift: From Producer Innovation to User and Open Collaborative Innovation' (MIT Sloan School of Management Working Paper # 4764-2009) Josh Lerner and Jean Tirolec, 'The open source movement: Key research questions' (2001) European Economic Review, Pages 819–826. 322 Georg von Krogh, Ikujiro Nonaka and Lise Rechsteiner, 'Leadership in Organizational Knowledge Creation: A Review and Framewor' 2012) Journal of Management Studies Volume 49, Issue 1, p.p 240–277; Jason Potts, above n 300, 9. 323 Ibid. 324 Yochai Benkler, ‘From Consumers to Users: Shifting the Deeper Structures of Regulation toward Sustainable Commons and User Access’(1999-2000) Federal Communications Law Journal; Yochai Benkler, ‘Property, Commons, and the First Amendment: Towards a Core Common Infrastructure’ (White Paper for the First Amendment Program Brennan Center for Justice at NYU School of Law, 2002); Yochai Benkler, ‘Coase's Penguin, or, Linux and ‘The Nature of the Firm’' (2002) The Yale

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Benkler argued that the contemporary communications and computation systems made social sharing and exchange ‘a common modality of producing valuable desiderata at the very core of the most advanced economies — in information, culture, education, computation, and communications sectors.’325 The provision of information, knowledge and cultural goods can be ‘based on social relations, rather than through markets or hierarchies’.326 Benkler called this phenomenon ‘commons- based peer production’ that is, a ‘large-scale cooperative effort in which the thing shared among the participants is their creative effort.’327 The result is information, knowledge and cultural goods that are ‘relatively free of the structuring effects of property rights and the distribution of wealth’.328

In later stages, Benkler conducted interdisciplinary studies through ‘the work of hundreds scientists in psychology, organisational sociology, political science [and] experimental economics’329 to look into the internal dynamics of social sharing and exchange systems as a modality for knowledge production. Benkler’s central argument appears to be that people have a natural disposition to cooperate and produce information, knowledge and cultural goods. The disposition for cooperation

Law Journal, Vol. 112, No. 3 (In this article, Professor Benkler indicates to the declining prices of computers and communications as driving factor to efficient and fast movement and exchange of information. Users of Internet technologies became able to cooperate to produce knowledge goods- the phenomenon which he calls ‘peer production’). Although Benkler’s study came in a period of time when FOSS was the focus of similar study he acknowledged that ‘that peer production of information is a phenomenon with much broader economic implications for information production than thinking of free software alone would suggest’. Pages 377, 403, 406 and 444; compare Yochai Benkler, 'Intellectual property and the organization of information production’ (2002) International Review of Law and Economics 22 (Benkler assures that ‘the Standard economic analysis of intellectual property overestimates the benefits of intellectual property rights’ and refers to alternative modes of knowledge production which are based on cooperation and which have great potential that may outweigh the benefits of IP among these modes: software programs, computer communication and genomic research) 4 and 41. Compare to Jessical Litman, ‘Sharing and Stealing’ (2004) Hastings Communications and Entertainment Law Journal, Vol. 27. 325 Yochai Benkler, ‘Sharing Nicely: On Shareable Goods and the Emergence of Sharing as a Modality of Economic Production’ (2005) The Yale Law Journal, 278. In explaining the notion of social sharing as a modality of knowledge production Professor Benkler states that: Social sharing is a broader phenomenon, one that includes cooperative enterprises that can be pursued by weakly connected participants or even by total strangers and yet function as a sustainable and substantial modality of economic production. Indeed, in the context of the digitally networked environment, it is this type of sharing and cooperative production among strangers and weakly connected participants that holds the greatest economic promise. At 333. 326 Ibid. 327 Ibid 334. 328 Ibid 343 . 329 Yochai Benkler, The Penguin and the Leviathan: How Cooperation Triumphs over Self-Interest (Random House, 2011) 13.

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and production would be enhanced if they found an efficient way to communicate and framed moral and fair rules of engagement without imposition from above.330

 Communication is regarded as the most important factor in human cooperation. The success of FOSS, Wikipedia, citizen journalism, online games and other forms of peer production is a direct result of the flourishing of computation technologies and communication platforms. 331 Contemporary communication platforms allow wide circulation of the source code, collaborative forms for authorship and the ability for rapid news reporting from different places.

 Norm creation: the success of the different forms of peer production that we have just mentioned is due, in a large part, to their departure from the traditional and restrictive approaches of IP to a process of norm creation that is responsive to the logic of cooperation. 332 Richard Stallman realised that making the source code free for everyone would bolster the cooperative efforts to develop more efficient operating systems for computers. 333 In response he developed the GNU 334 General Public

330 Ibid, 2, 158; Yochai Benkler, ‘The Unselfish Gene’, above Ch n 80; Yochai Benkler, ‘Designing Cooperative Systems for Knowledge Production: An Initial Synthesis from Experimental Economics’ in Mario Biagioli et al, Making and Unmaking Intellectual Property: Creative Production in Legal and Cultural Perspective (the University of Chicago Press, 2011) 152 and 154. 331 Yochai Benkler, The Wealth of Networks How Social Production Transforms Markets and Freedom (Yale University Press, 2006) 3, 5 and 68; Yochai Benkler, The Penguin and the Leviathan, above n 329, 11 and 108; Yochai Benkler, ‘Designing Cooperative Systems for Knowledge Production’, above n 330, 149 and 152; Yochai Benkler, ‘The Unselfish Gene’, above Ch n 80 . 332 Yochai Benkler, The Penguin and the Leviathan, above n 329, 158 and 159; Yochai Benkler, ‘Designing Cooperative Systems for Knowledge Production’, above n 330, 154. 333 Richard Stallman, ‘Free Software’ in Mark Pery and Brian Fitzgerald, Knowledge Policy for the Twenty-First Century: A Legal Perspective (Irwin Law Inc, 2011) 2. Richard Stallman listed four freedoms which are essential for a FOSS as a method of social production rather than proprietary one. These freedoms are: 1. The freedom to run the program as you wish; 2. The freedom to study the source code of the program, and change it to make it do what you wish. 3. The freedom to help your neighbour, that is, the freedom to redistribute copies of the program to others when you wish 4. The freedom to contribute to your community with the copies of your modified versions Stallman knew very well that software in general and sophisticated software in particular require the cooperation of multiple programmers. This cooperation will not flourish if the source code is subject to proprietary models so he realised the source code free to other programmers and required those programmers to freely release their modified versions of the software. The result was a movement (FOSS) that is able to produce software programs that are superior to proprietary ones. Stephen Voyce, above n 319, 415. 334 The acronym stands for ‘GNUs not Unix’, and was derived from a humorous play on words when the name was chosen by Stallman.

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License (GPL) to ensure that the source code remained free from proprietary claims so every user would be able ‘to share and change all versions of a program’. 335 The logic of sharing and cooperation to produce software programs has contributed to a breathtaking variety of these programs, which have made their presence in our lives ubiquitous.336

The success of the logic of sharing and cooperation inspired Lawrence Lessig to help starting Creative Commons (CC) in 2001 which allowed millions of persons to departure from the restrictive sphere of copyright law into a realm in which sharing is the norm.337 CC’s licences give persons more freedom to interact with the culture around them, share it and most importantly build upon it.338 From 2002 to 2009 estimated 350 million CC licences have been issued,339 which means a great number of people wanted to share their creative works with others to access it and build upon it, freely. The willingness to share is something which the designers of systems built around incentive do not often consider.

Jimmy Wales, the founder of Wikipedia, believed that people could work together and donate their time and efforts in a collaborative form of authorship to write the biggest repository of human knowledge the world have known. What people needed is ‘a reign to set their own norms’, review them and revise them in whatever way the logic of cooperation dictates.340

In a nutshell, people can cooperate to produce information knowledge and culture that is not subject to proprietary systems and is perhaps even more stable and

335 GNU General Public Licenses, Version 3 available online at: http://www.gnu.org/licenses/gpl.html the preamble of the GPL says that it is ‘a free, copyleft license for software and other kinds of works’ such as media and texts. The most important terms in GPL which I believe it is responsive for the logic of cooperation and social sharing is article number 3 which does not allow software programs subject to the licence to use DRM to prevent other users for accessing the source code or copying the program. Additionally, article 10 which regulates the relation between the original licensor and the downstream users who may contribute to modifying and developing the program. 336 See Chapter 4 at 168. 337 http://creativecommons.org/about 338 Lawrence Lessig, 'Creative Commons', above n 1, 12; Minjeong Kim, 'the Creative Commons and Copyright Protection in the Digital Era: Uses of Creative Commons Licenses' (2007) Journal of Computer-Mediated Communication, 187. Creative Common website provides creators of copyrightable materials who which to use CC on their creative works with a set of licences in which they can choose how to regulate access and distribution of their works. Users of CC can allow commercial distribution or restrict it, they can stipulate that downstream users must share the work with others. For more see Creative Licences on http://creativecommons.org/choose/ 339Creative Common, http://creativecommons.org/about/history 340 Yochai Benkler, The Penguin and the Leviathan, above n 329, 158-159

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effective than those systems (compare Linux to Windows or Wikipedia to Encarta). 341 What they need are systems that rely on sharing, engagement and communication. And the freedom to design rules and norms that help them embrace their collaborative sentiments rather than rules which assume that they are driven purely by self-interest.342

6.4.3 Compatibility with Islamic Shari’a

As discussed in throughout this thesis, proprietary modalities of cultural and knowledge production allow the concentration of their outputs. On the contrary, collaborative modalities allow efficient distribution of expressive and innovative opportunities. And in that, they are compatible with the principles of Islamic Shari’a regarding concentration of wealth, distributive justice and dissemination of knowledge as discussed in Chapter 5.

Cooperation (takaful) is a central value in Islamic Shari’a.343 Cooperation to produce intellectual goods (intellectual takaful) is ancillary to that value. It is more faithful to the principles of Islamic Shari’a to create and develop the institutional conditions needed for it to flourish rather than squelching it with the IP laws that are in place. Policymakers who aim at designing systems of cultural and knowledge production that are compatible with Islamic Shari’a should take note of this. However, the public at large has an essential role to play as well.

At a state level, as the world undergoes a technological transition that may affect the efficacy of sharing as a modality of cultural and knowledge production, policymakers must understand that ‘sharing is a modality of production’. 344 Measures that can be adopted to reflect this understanding include:

 With regard to infrastructure, as governments allocate budgets to finance public facilities such as roads and highways, they should allocate budgets to

341 Yochai Benkler, ‘The Unselfish Gene’, above Ch n 80. 342 Ibid. 343 The Quran commands Muslims to ‘cooperate in righteousness’ (the Quran, 5:2) the Prophet (PBUH) says that ‘the believers, in their mutual love, mercy and compassion, are like one body: if one organ complained, the rest of the body develops a fever.’ (Bukhari & Muslim, available online at: http://www.tumblr.com/tagged/muslimah?before=1334488294) Building systems that allow people to practice these values is compatible with Islamic Shari’a’s vision on the formation of society. Therefore, whenever a policy options exists between choosing a proprietary system of cultural and knowledge production and one that can be built on cooperation, Shari’a would support for the later. 344 Yochai Benkler, above n 325, 331.

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set up a fiber networks. These networks should be open for any use whether commercial or non-commercial and should not be designed to favour any type of content.345

 The current systems of IP harm collaborative modalities of cultural and knowledge production as they raise the cost of access to existing intellectual resources needed as raw material.346 Some of the policy recommendations and legislative reforms which have been proposed earlier in this chapter, particularly those related to TPMs and anti-enclosure policy, can be of great assistance.

 As governments support scientific research and libraries, they should consider the establishment of foundations that may help promoting collaborative modalities of knowledge and cultural production. While this proposal may seem intuitive regarding FOSS,347 there is no reason to think that such foundations cannot be established for other economic, cultural or social activities such as education, media, art or medical research for neglected diseases.348

In addition to the state’s role, the public has an essential role to play in promoting collaborative modalities of cultural and knowledge production. 349 This requires innovative users among the public to ‘collectively create an information commons’

345 Yochai Benkler, ‘Property, Commons, and the First Amendment, above n 324, 53. 346 Professor Benker refers to the rules of TPMs as the main obstacle in the way towards an efficient productive collaboration, Yochai Benkler, ‘Property, Commons, and the First Amendment, above n 324, 57. In another work, he observes that the current policy approach, which focuses on strengthening intellectual property rights, is not the best policy direction. Professor Benkler states that: The current heavy focus on strengthening intellectual property rights is exactly the wrong approach to increasing growth through innovation and information production if having a robust peer production sector is important to an economy's capacity to tap its human capital efficiently. Strong intellectual property rights, in particular rights to control creative utilization of existing information, harm peer production by raising the cost of access to existing information resources as input. Yochai Benkler, ‘Sharing Nicely, above n 325, 445. 347 Yochai Benkler, ‘Property, Commons, and the First Amendment, above n 324, 64. 348 Compare TJ Bliss, Supporting the Collaborative Development of OER Aligned with the Common Core: A Policy Brief, available online at: http://tjbliss.org/oer-and-the-common-core/; Stephen Voyce, Toward an Open Source Poetics: Appropriation, Collaboration, and the Commons, above n 319, 426-427; arti K. Rai, 'Open and Collaborative Research: A New Model for Biomedicine', Legal Studies Research Paper Series (Research Paper No. 61 October 2004) 2. 349 Von Hippel, above n 227, 12; Stephen Voyce, Toward an Open Source Poetics: Appropriation, Collaboration, and the Commons, above n 319, 426.

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that is ‘a collection of information freely available to all’.350 Then, those users among the public interested in the relevant field of the freely available information can depart from the restrictive provisions of the current IP systems, use this information and build upon it for the benefit of the general public. This is exactly what is happening in Wikipedia, social sharing networks and FOSS with obvious positive welfare implications.351

6.5 A2K and Islamic Shari’a

Proprietary models of knowledge and cultural production are not always the best models according to the sources and principles of Islamic Shari’a. However, Islamic Shari’a supports models of knowledge and culture management in which sharing and dissemination of knowledge are promoted. Direct support for this argument from Islamic sources can be found in the teachings of the Prophet (PBUH).352 In this, Islamic Shari’a overlaps with an international movement which argues that openness and sharing of knowledge are more conducive to the overall human development and welfare.353 This movement is known as Access to Knowledge (A2K).

A2K has attracted the attention and support of great number of civil society organizations, 354 public sector bodies 355 and academics all over the world. 356

350 Ibid 13. User innovators may have different motives to freely diffuse knowledge which otherwise can be deemed intellectual property, Magnus Bergquist & Jan Ljungberg,‘The power of gifts: organizing social relationships in open source communities’ (2001) Information Systems Journal 11, 305–320, 305. 351 Joachim Henkel and Eric von Hippel, 'Welfare Implications of User Innovation', above n 305. 352 See Chapter 5 at 194. 353 Anne Fitzgerald has carried out a comprehensive review on an important aspect of A2K, that is, the access to public sector information and publically funded research. Anne’s review covered materials published in Australia and key overseas jurisdictions which showed an international consensus on the social and economic benefits flowing from access to public sector information and publicly funded research. Anne Fitzgerald, Open access policies, practices and licensing: a review of the literature in Australia and selected jurisdictions (Cooperative Research Centre for Spatial Information, 2009) 4; Rami Olwan, Intellectual Property and Development: Theory and Practice, above Ch 4 n 98, 251, Ahmed Abdel Latif traced the evolution of the A2K movement internationally. He refers to the importance of knowledge in Islamic civilisation by arguing that ‘the first word of the Holy Koran, the injunction made to Prophet Muhammad (PBUH) ‘read’, is indicative of the status of knowledge and science in Islam.’ Ahmed Abdel Latif, ‘The Evolution of the A2K Movement’ in Hala Essalmawi, Bibliotheca Alexandria Access to Knowledge Toolkit I (December 2009) 11. 354 For instance Bibliotheca Alexandrina, Consumers International, Médecins Sans Frontières and International Federation of Library Associations and Institutions (IFLA). 355 For instance in the US see National Institutes of Health, Public Access Policy, http://publicaccess.nih.gov/; 356For instance see Peter Suber, Open Access (MIT, 2012) Gaëlle Krikorian and Amy Kapczynski, Access to Knowledge in the Age of Intellectual Property (ZONE BOOKS NEW YORK 2010) Amy Kapczynski, 'The Access to Knowledge Mobilization and the New Politics of Intellectual Property'

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Consumer International (CI) provides a comprehensive definition, which aptly illustrates the principal elements of A2K:

Access to Knowledge (A2K) is the umbrella term for a movement that aims to create more equitable public access to the products of human culture and learning. The ultimate objective of the movement is to create a world in which educational and cultural works are accessible to all, and in which consumers and creators alike participate in a vibrant ecosystem of innovation and creativity.357

The A2K movement perceives cultural and knowledge products as public goods,358 the provision of which is linked to fundamental human rights. 359 Advances in computation and communication technology and the resulting cost reduction for knowledge creation and dissemination, have paved the way for increasing support of the A2K movement. 360 This support is generally manifested in the Geneva Declaration on the World Intellectual Property Organisation signed in 2004361 and a draft Treaty on Access to Knowledge prepared in 2005.362

Both initiatives introduce A2K as a model of knowledge governance that will alleviate the negative impacts of the existing proprietary models in terms of access to medicines, educational resources, cultural heritage and the overall barriers to follow- on innovation, which result in concentrated ownership and disparities in wealth.363 This is exactly what Islamic Shari’a supports, according to its objectives and principles as discussed earlier.

(2008) The Yale Law Journal, Vol. 117, No. 5 pp. 804-885; Anne Fitzgerald, above n 353 Peter Drahos, Access to Knowledge: Time for a Treaty? (No. 4, April 2005 ) www.ictsd.org 357 Consumers International, Access to Knowledge - A Guide for Everyone, Consumers International, KL Office, edited by Fredrick Noroha and Jeremy Malcolm, at 2, available online at: http://www.consumersinternational.org/news-and-media/publications/access-to-knowledge---a-guide- for-everyone 358 Peter Suber, Knowledge as a public good (SPARC Open Access Newsletter, issue #139 November 2, 2009) Available online at: http://www.earlham.edu/~peters/fos/newsletter/11-02- 09.htm#publicgood 359 Art 27 of Universal Declaration of Human Rights. While this article recognises the right of individuals to ‘the protection of the moral and material interests resulting from any scientific, literary or artistic production’ it asserts that ‘everyone has the right freely to participate in the cultural life of the community, to enjoy the artsarts and to share in scientific advancement and its benefits’ 360 Ahmed Abdel Latif, ‘The Evolution of the A2K Movement’, above n 353, 11-17. 361 Geneva Declaration on the World Intellectual Property Organisation, (2004) Available online at: http://www.futureofwipo.org/futureofwipodeclaration.pdf. The Geneva Declaration has particularly voiced concerns with regard to ‘the governance of knowledge, technology and culture’ particularly with regard to access to medicine and educational resources. 362 For a discussion on the need, importance and the potential of such Treaty see Peter Drahos, Access to Knowledge: Time for a Treaty?’, above n 356. 363 See the introduction of Geneva Declaration and the Preamble of A2K Treaty.

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The scope of the A2K movement encompasses any kind of knowledge or cultural content, including but not limited to texts and data to software, audio, video, and multi-media.364 The A2K movement has gained momentum with regard to digital materials publishable online, particularly with regard to public sector information (PSI), research results (publicly funded or otherwise) and the provision of educational resources. These particular three aspects of the A2K movement are commonly addressed within an Open Access (OA) framework.

OA is the subject of various international statements and declarations such as the Budapest Open Access Initiative (February 2002), and the Bethesda and Berlin Statements (June and October 2003) which Peter Suber collectively calls ‘the BBB’.365 The central feature of OA literature is that it is ‘digital, online, free of charge, and free of most copyright and licensing restrictions’.366 The BBB can be read collectively and provide us with comprehensive definition for OA.367

OA refers to online literature for which the copyright holder has given general consent in advance to permit users to read, download, copy, distribute, print, search, or link to the full texts of his/her works, and make and distribute derivatives, in any digital medium for any responsible purpose.368

OA removes price barriers and some permission barriers through Open Content Licenses (OCL), most notably CC.369 It should be noted that these OCL tend to be selective regarding the permission barriers they remove. 370 Some OCL permit

364 Peter Suber, Open Access Overview: Focusing on open access to peer-reviewed research articles and their preprints (first put online June 21, 2004. Last revised October 7, 2012) available at: http://www.earlham.edu/~peters/fos/overview.htm 365 Ibid 366 Ibid 367 Peter Suber, Praising progress, preserving precision (SPARC Open Access Newsletter, issue #77 September 2, 2004) Available online at: http://www.earlham.edu/~peters/fos/newsletter/09-02- 04.htm#progress 368 This definition adopted from para three of Budapest Open Access Initiative, available online at: http://www.opensocietyfoundations.org/openaccess/read, Bethesda Statement’s definition of OA available at http://www.earlham.edu/~peters/fos/bethesda.htm and Berline Statement’s definition available at http://www.zim.mpg.de/openaccess-berlin/berlin_declaration.pdf, compare the definition provided above with that which Professor Peter Suber has inferred from the BBB, Peter Suber, Praising progress, preserving precision, above n 367. 369Peter Suber, Open Access Overview, above n 364; Brian Fitzgerlad et all, Open Access to Knowledge (OAK): Creating a legal framework for copyright management of open access within the Australian academic and research sector (QUT Faculty of Law, 2006) 106, available online at http://eprints.qut.edu.au/6099/; Anne Fitzgerald et all, CC & Government Guide: Using Creative Commons 2.5 Australia Licences on Government Copyright Materials (QUT Faculty of Law, 2010) available online at: http://eprints.qut.edu.au/32519/ 370 Peter Suber, Open Access Overview, above n 364.

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commercial re-uses and some do not. Some permit derivative works and some do not.371

OA proponents and the relevant international texts372 demand access to knowledge resources for which the public has already paid, namely, public sector information (PSI) and the results of publicly funded research.373

PSI includes information and data produced by public sector bodies such as international governmental organisations, governmental departments, agencies and affiliated bodies.374 Publicly funded knowledge resources include research raw data and research results which are funded by governmental resources.375 The value of publicly related knowledge resources is increased if the barriers on access and reuse are lifted and when these resources are made available in common digital formats downloadable online.376 No restrictions should be placed on the availability of these resources other than those related to national security, protection of confidentiality and privacy and in, limited circumstances, reasonable IP claims. This approach of managing publicly funded knowledge resources would ‘enable researchers, empower citizens and convey tremendous scientific, economic, and social benefits.’377 These benefits come in the forms of new medicines, useful technologies, and solutions to problems and informed decisions that benefit everyone.378

The best possible approach towards implementing OA regarding PSI is through governmental directives to their branches and agencies requiring them to publish their data and information on their websites under open content licenses (OCL).379

371 See for instance Creative Common Licences. 372 See for instance art 5 of A2K Treaty. 373 In this, Brian Fitzgerald argues that OA to PSI and publically funded research is ‘reinforced by the fact that much research is publicly funded (in essence owned by the people), Brian Fitzgerlad et all, Open Access to Knowledge (OAK), above n 369, 80, 83; P Arzberger et all, 'Promoting Access to Public Research Data for Scientific, Economic, and Social Development'(2004) Data Science Journal, Volume 3, 29, 136 (arguing that ‘unlike the private sector, public research operates on a principle of collective property interests, which are promoted by the open access and sharing of data resources’) 142. 374 Anne Fitzgerald, above n 353, 3. 375 J. J Reichman Aand Paul Uhlir, ‘A Contractually Reconstructed Research Commons for Scientific Data in a Highly Protectionist Intellectual Property Environment’ (2003) Law and Contemporary Problems, 318; P Arzberger et all, above n 373, 135. 376 Anne Fitzgerald, above n 353,3. 377 P Arzberger et all, above n 373, 136. 378 Peter Suber, Open Access Overview, above n 364. 379 See for example the recent directive issued by the Obama Administration to the affiliated federal agencies. Whitehouse, Increasing Access to the Results of Federally Funded Scientific Researc (2013)

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As for publicly funded raw data and research results, OA could be implemented through contractually stipulating, in the terms and conditions of governmental research contracts, that the beneficiaries should share the results of their work by making them freely available online.380

Peter Suber argues that ‘OA is not limited to publicly funded research ... but it includes privately funded and unfunded research’.381 A great many research results which are not publicly funded go to online journals, some of which do not permit free access to their content, unless payment is made.

Suber takes issue with pay for access journals, which he calls toll-access journals. These journals are responsible for placing massive amount of knowledge behind firewalls by restricting authors’ ability to make their work available for the public.382 Suber argues that authors conduct research mainly for impact not money. Moreover, toll-access journals do not pay authors any money and restrict access for their work. 383 This in turn harms authors by ‘shrinking their audience, reducing their impact and distorting their professional goals’. 384 Authors can benefit from the dissemination revolution enabled by new technologies, and make their work accessible to a large audience by (1) keeping the key rights out of the control of toll- access journals, or (2) publishing in OA journals and transferring copyright to them.385

Additionally, Suber asserts that universities and libraries, being a source of enormous annual layouts for toll-access journals, should stipulate in their contracts with those journals that they want OA for the purchased content ‘even for those who don't pay’.386Universities and libraries that might place such condition might face rejection especially from powerful journals:

http://www.whitehouse.gov/sites/default/files/microsites/ostp/ostp_public_access_memo_2013.pdf See also Anne Fitzgerald et all (2010) CC & Government Guide, above n 380 J. J Reichman Aand Paul Uhlir, above n 375, 318; Peter Suber, Ensuring Open Access for Publicly Funded Research (BMJ, 2012) http://www.bmj.com/content/345/bmj.e5184 381 Peter Suber, Open Access, above n 356, 97. 382 This argument applies mainly to academics. 383 Peter Suber, Open access and copyright, the SPARC Open Access Newsletter, issue #159 July 2, 2011, available online at http://www.earlham.edu/~peters/fos/newsletter/07-02-11.htm#copyright 384 Peter Suber, Open Access, above n 356, 2. 385 Ibid, Peter Suber, Open access and copyright, above n 298. 386 Peter Suber, Knowledge as a public good, above n 358.

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Universities that act alone for better terms from publishers are as unlikely to succeed as workers who ask for raises alone. But universities can act together without acting as a cartel if critical numbers of them become courageous about seeking their own interests at about the same time. Without critical numbers and critical timing, early requests will simply be rejected. But as soon as some large institutions or clusters of institutions start to win concessions, it will be easier for the next institutions to make the same requests and build on the momentum.387

Another related strand of the A2K movement is Open Educational Resources (OER). The fourth chapter of this thesis discussed the way in which the current IP system restricts access to educational materials, especially for developing countries. OER led mainly by United Nations Educational, Scientific and Cultural Organization (UNESCO) since 2002 started to raise awareness regarding the importance of providing OA to learning resources and thereby mitigating the negative impacts of the restrictions imposed by the current IP system.388

OER has gained momentum through international declarations and guidelines such as the 2007 Cape Town Open Education Declaration,389 the UNESCO Guidelines on Open Educational Resources in Higher Education 390 and the Paris 2012 OER Declaration.391 The OER movement as stated in the recent Paris Declaration aims at widening access to educational resources at all levels of education and thereby ‘contributing to social inclusion, gender equity and special needs education’.392

A2K, in all its aspects, by its nature does not allow inequality and concentration of knowledge.393 It puts ‘rich and poor on an equal footing’.394 The wide dissemination of information and knowledge enabled by A2K mechanisms allows for everybody to benefit from knowledge resources and thereby promotes values of distributive justice

387 Ibid. 388 UNESCO, Forum on the Impact of Open Courseware for Higher Education in Developing Countries: Final Report (2002) Available online at: http://unesdoc.unesco.org/images/0012/001285/128515e.pdf 389 Cape Town Open Education Declaration (2007) http://www.capetowndeclaration.org/ 390 UNESCO Guidelines on Open Educational Resources in Higher Education (2011) http://unesdoc.unesco.org/images/0021/002136/213605e.pdf 391http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CI/CI/pdf/Events/Paris%20OER%20De claration_01.pdf 392 Paris 2012 OER Declaration, page 2 (2012) http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CI/CI/pdf/Events/Paris%20OER%20Decl aration_01.pdf 393 The preamble of A2K Treaty specifically addresses this point by stating that ‘[m]indful of the need to overcome disparities in wealth, development, and access to knowledge resources’ 394 Peter Suber, Open Access Overview, above n 364.

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in a manner better than the current proprietary model.395Islamic Shari’a strongly supports any approach to knowledge and cultural production that would ensure more efficient and fair allocation of knowledge resources.396

Moreover, the A2K movement, as stated in its relevant international texts, seems to place significant focus on the right to attribution and integrity.397 Providing OA to a certain work should not mean that the creator of that work will lose the right to prevent any distortion, modifications or derogatory actions, as well as her or his right to be properly acknowledged as the creator of the work. Safeguarding attribution and integrity is consistent with the historical developments of moral rights traditions in Islamic civilisation as indicated in Chapter 3.

Islamic countries, especially those who have Shari’a as the main source of legislation, should observe the potential offered by all the alternative mechanisms of knowledge and cultural management and production, including A2K and OA. These mechanisms are compatible with Islamic Shari’a’s principles and objectives as they provide a fairer allocation of knowledge resources, greater dissemination of knowledge and greater inclusion for all members of society — especially the destitute — because of their more humane approach in dealing with pressing challenges regarding access to educational resources, access to essential medicine and economic growth.398

395 One commentator studied OA within the framework of social justice as articulated by John Rawls. He concluded that: Open access does not interfere with any person’s indefensible claims to equal basic liberties (the ‘equal liberties principle’), it is consistent with social justice. Further, open access does not violate the ‘equal opportunity principle’ and in fact assures for greater equality of access to information. We also believe that open access is to the greatest benefit of the least-advantaged and thus is consistent with the ‘difference principle.’ That is, open access publishing aims to benefit all equally, which over time, will assist the least advantaged in catching up to the most well-off in society (who have long benefitted from greater access to knowledge in all areas of life). Allan Scherlen & Matthew Robinson, ‘Open Access to Criminal Justice Scholarship: A Matter of Social Justice’ (2008) Journal of Criminal Justice Education, 72. 396 Rami Olwan studied the impact of the current IP system on the development process in general. He recommends adapting and participating in OA initiatives as a more conducive way for development. See, Rami Olwan, Intellectual Property and Development: Theory and Practice, above Ch 4 n 98, 251-252. 397 Budapest Open Access Initiative, available online at: http://www.opensocietyfoundations.org/openaccess/read, Bethesda Statement’s definition of OA available at http://www.earlham.edu/~peters/fos/bethesda.htm and Berline Statement’ definition available at http://www.zim.mpg.de/openaccess-berlin/berlin_declaration.pdf, 398 In the Fourth Chapter, it was argued that the current IP system has negative impact on the issue of access to educational material and public health and its impact on economic growth is at the best cases is uncertain. The new alternative mechanisms of knowledge management and production, with its underlying philosophy that built on openness and engaging people without limits, seem to be more

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With regard to OA, it is recommended that Islamic countries adopt a bunch of policies oriented towards integrating OA initiatives into their development plans. Such policies include:399

 drawing people’s attention (especially those in educational sector) to the importance of using the Internet to access OA materials and capitalise on them;

 participation in the international initiatives which aim at promoting A2K such as those sponsored by CI and UNESCO;

 adopting OA policies with regard to PSI and publicly funded research; and

 funding the establishment of OA repositories and support for any initiatives which might increase their number.

6.6 Conclusion

An optimal IP system from an Islamic perspective does more than maximizing protection for those responsible for the generation of knowledge and cultural goods. There are other considerations dictated by the sources, objectives and principles of Islamic Shari’a, which affect the structure of what could be deemed a Shari’a- friendly IP system. The objectives of Islamic Shari’a, as discussed in Chapter 4, make it imperative that the legislature does not run afoul of pressing challenges presented by the IP system such as public health, access to educational material and economic growth. The principles discussed in Chapter 5 require policymakers to consider issues of openness, collaboration and social justice when formulating an IP system.

The legislative reforms and policy measures discussed in this chapter are more responsive to the objectives and principles of Islamic Shari’a than the current and predominant IP system and policymaking. If considered, an expanded public domain, a conceptualisation of users’ rights, consideration of alternative modalities of knowledge production and greater A2K will all contribute to greater access to conducive to the overall welfare and development. For more on the positive effects of OA on economic development, see Rami Olwan, Intellectual Property and Development: Theory and Practice, above Ch 4 n 98, 251- 252. 399 Compare P Arzberger et all, 'Promoting Access to Public Research Data, above n 373, 137; Ida Madieha bt. Abdul Ghani Azmi, ‘Institutional Repositories in Malaysia: The Copyright Issues’ (2008) International Journal of Law and Information Technology Vol. 17 No. 3 and Rami Olwan, Intellectual Property and Development: Theory and Practice, above Ch 4 n 98, 252.

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medicine and educational materials while enhancing economic growth, knowledge dissemination and social justice as Shari’a requires.

Policymakers in Islamic states should implement the suggested legislative reforms and policy measures to better realise an optimal IP system from Islamic perspective.

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Chapter 7

The Intellectual Property System in Libya and Promoting Innovation

7.1 Introduction

Libya has sufficient natural and strategic resources to actualise sustainable development. The country enjoys a strategic location, immense oil, gas and foreign exchange reserves and a small and youthful population. Nevertheless, the development wheel moves very slowly according to various relevant indicators.1

In the past half century, the country has suffered political instability and ranked low on indicators of development such as government effectiveness, rule of law, accountability and control of corruption.2 With the collapse of the political regime in October 2011, the country embarked on several corrective measures to improve the status quo. Chief among these measures is the potential legislative reform, which includes the country’s IP laws which were enacted in the middle of the 20th century.

Compared to its counterparts in the Arab World which have updated their IP systems, the Libyan IP system has remained virtually unchanged since the 1950s and 1960s. The newly elected democratic government and parliament have an intensive development agenda with serious intentions of rethinking the current IP system. It is therefore worthwhile to integrate the development dimension into any potential IP reform, particularly, if a development-oriented IP policy would be in alignment with the country’s supreme source of legislation and culture, Islamic Shari’a.

This chapter identifies the context of the Libyan IP system by demonstrating how the system was influenced by the process of lawmaking in the Arab world. Then, it

1 See pages 310 and 330. 2 Mohammed Bin Rashid Al Maktoum Foundation (MBRF) and The United Nations Development Programme / Regional Bureau for Arab States (UNDP/RBAS), Arab Knowledge Report (2010/2011) 63, available online at http://www.arab-hdr.org/akr/AKR2010-2011/English/AKR2010-2011-Eng- Foreword-team-Contents.pdf

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overviews the main components of the system and critically examines the policy directions that are being suggested to reform the Libyan IP system. The main argument at this stage is that Libyan IP laws are outdated and in need of reform. However, the paths that have been proposed to achieve reforms are not conducive to development.

The chapter sets out proposals for legislative and policy reforms that are both compatible with Islamic Shari’a, the supreme source of law and culture in Libya, and designed to promote development. Libya is an Islamic and developing country. If policymakers in Libya take into consideration the sources of Islamic Shari’a, they will be required to introduce IP laws that promote development. Drawing from the previous chapters, it is argued that policies on IP that are compatible with Islamic Shari’a and promote development, particularly in the areas of public health, education and economic growth, should be designed to promote openness and non- concentration of knowledge resources.

However, policymakers should not focus only on IP reform. They should also consider establishing and developing a national innovation strategy with particular focus on the creation of the institutional conditions for wide ranging creation and dissemination of knowledge and cultural resources.

7.2 Context: IP in the Arab World

The Libyan IP system emerged in the context of the IP laws in the Arab world. A review of the history and development of IP laws in the Arab world reveals that laws were being imported from the international conventions and transplanted into the local legal systems without examining their compatibility with the local context, and whether those laws would serve the development objectives of the Arab countries. Furthermore, efforts to unify IP laws in the Arab world were disorganised and unsustainable. Therefore, the context in which the Libyan IP system emerged and attempted to develop did not lead to design IP laws and policies that are sensitive to the cultural context or assist in promoting development.

The Arab world consists of countries with a predominantly Arab population. In international relations, the term ‘Arab World’ is often used to mean countries which

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are members of the Arab League.3 The Arab League includes 22 countries which occupy territories in the northern and north-eastern part of Africa and southwest Asia with a combined population exceeding 300 million.4

7.2.1 Historical Background

Historically, cities located in the Arab world were the hubs of advanced technological and scientific progress.5 One commentator notes that:

Eleven centuries ago an Islamic renaissance occurred in Baghdad, attracting the best scholars throughout the Muslim world. For the next five hundred years, Arabic was the lingua franca of science. Cutting-edge research was conducted in cities such as Cairo, Damascus, and Tunis. In the ninth century, algebra (al-jabr) was invented by a Muslim mathematician in Baghdad under the auspices of an imperial Arab court dedicated to scientific enrichment and discovery. Ibn Sina's monumental Canon of Medicine was translated into Latin in the 12th century and dominated the teaching of the subject in Europe for four centuries.6

As discussed in the Chapter 3, there were some forms of recognition and protection for intellectual creations in the Islamic Arab world, particularly for literary and artistic works.7 However, IP protection worthy of its name did not occur in the Arab world until the introduction of the Ottoman8 Trade Mark Law in 1871 and Patent Law on 23 March 1879,9 followed by the Ottoman Copyright Law which was issued

3 The Arab League is an international governmental organization which was founded in Egypt in 22/03/ 1945 to be the umbrella for the countries within which the first language spoken is Arabic. http://www.arableagueonline.org/ 4 The 22 Arab countries are: Algeria, Bahrain, Comoros, Djibouti, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libya, Mauritania, Morocco, Oman, Palestine, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates (U.A.E.) and Yemen. See Arab League official website: http://www.lasportal.org 5Muhammed El-Saed, The Development of Intellectual Property Protection in the Arab World (Edwin Mellen Press, New York: 2008) 176. 6 Daniel Del Castillo, ‘The Arab World’s Scientific Deset’ (Mar 5, 2004): The Chronicle of Higher Education 50, 26. 7 See p51 et seq. 8 Historically, Arab countries - with the exception of Morocco and Mauritania - were Ottoman states. 9 Turkish Patent Institute, Annual 2007 Report (2007) 6-7. The Ottman Patent Law of 1879 was translated from French Patent Act of 1844 and remained enforceable in Turkey (the mainland of Ottoman Empire) till it was repealed and replaced by Law 551 for Patents and Utility Models on June 27 1995. Emre Kerime Yardimic and Ocan Kan, Tips for Patent Enforcement (Turkey Sponsored Editorial, 2011) at 89 < http://www.managingip.com/article/2893437/Tips-for-patent- enforcement.html>

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on 10 May 1910.10 At the time when most Arab countries implemented the Ottoman IP laws, some Arab countries had their own IP legislation. These included Morocco (issued copyright law on 23 June 1916) and Lebanon (under the French Copyright Decree No 2385 issued on 17 January 1924).11

With the emergence of independence movements after World War II, many Arab countries gained their independence and began drafting their own laws. 12 Egypt assumed leadership in the Arab world, and most Arab countries have copied Egyptian laws.13 IP laws were no exception.14

Egypt’s Trade Marks Law no 57/1939, Patent Law no 132/1949 and Copyright Law no 354/1954 were the material source of the IP legislation in many Arab countries.15 For instance the Libyan Trade Marks Law no 40/1956, Patent Law no 8/1959 and Copyright Law no 9/1968 are similar, and in some cases identical, in their structure and wording to the aforementioned Egyptian IP laws.

Egyptian IP laws were highly influenced by the existing international IP framework at that time, most notably the Berne and Paris Conventions, and the IP legislation of the countries of the European Continent. 16 For instance, the Explanatory

10 Ibrahim Ahmed Ibrahim, Huqūq al-Mu’alif wa waqʿ tatbiquha fi al-watan al-arabi in the Arab League Educational, Cultural and Scientific Organization (Alecso), Huqūq al-mu’alif fi al-watan al- arabi bina al-tashriʿ wa al-tatbiq (Alecso, 1996) 13 11 Ibid. 12 Muhammed El-Saed, the Development of Intellectual Property Protection in the Arab World, above n 5. 13 For instance Egyptian Civil and Commercial Codes of 1949 were the source of their counterpartsarts in countries such as Libya, Syria, Kuwait and Iraq. Renowned Professor Abd al- Razzak al-Sanhūri (1895-1971) was the main expert who drafted Egyptian Civil Code based on his study of the French Code in the 1920s. Professor al-Sanhuri helped other countries including Libya to draft its Civil Law which was issued on 28/11/1953 and came as almost identical copy of the Egyptian Law. For overview on the history of Egyptian Civil Code, see Abd al-Razzak al-Sanhūri, al-Wasīt fi al-Qanūn al-Madani (Dār al-Nahda al-Arabiyya, 1952) Volume 1 14 Rami Olwan, above Ch 4 n 98, 208; Rami Olwan, ‘A Pragmatic Approach to Intellectual Property and Development: A Case Study of the Jordanian Copyright Law in the Internet Age’ (PIJIP Research Paper No. 2012-07) 15. 15 For more details please see Abd al-Razzak Omer Shiekh Najīb, Huqūq al-Mu’alif fi al-Duwal al- Arabiyya wa al-Tahadeyat al-Muʿasera (Naif Arab University for Security Sciences, 2004) 216; Ibrahim Ahmed Ibrahim, above n 10, 10 and 15; Ahmed Larabba, Awdaʿu Huqūq al-Mu’alif fi al- Watan al-Arabi (Alesco Publications, 1999) 13 and 19; Sinot Halim Doss, Tashriʿat bara’at al- Ikhtiraʿ fi Misr wa al-Duwal al- Arabiyya (Munsha’at al-Maʿārif, 1988) 377; Rami Olwan, above Ch 4 n 98, 208. 16 See for instance, Samiha al-Qalubi, al-Mulkkiyyah al-Sināʿiyya (Dār al-Nahda, 1994) 19. Professor Abd al-Munʿim Faraj al-Sadda argues that Egypt was an active participant in the international

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Memorandum of Egyptian Copyright Law No 354/1954 states that ‘this law is based upon the international conventions and the modern European copyright laws’.17

The Arab countries attempted to officially unify some of their IP legislation under the auspices of the Arab League. As early as 1947, the Legal Committee of the Arab League presented to the Arab League Council recommendations for a unified copyright law. The Arab League Council approved the recommendations on 17 December 1948 and recommended its members issue legislation to give effect to the Legal Committee’s recommendations.18 However, the recommendations of the Arab League Council did not receive adequate attention from the Arab states.19

In 1981, 11 Arab countries20 signed the Arabic Convention for the Protection of Copyright. 21 It covered most literary and artistic works included in the Berne Convention,22 explicitly excluded formalities,23 protected traditional knowledge in literary and artistic works,24 provided exceptions for personal use, educational use and criticism,25 provided strong translation rights26 and granted 25 years protection as a general rule.27

In 1998, the Arab League Educational, Cultural and Scientific Organization (ALECSO) recognised the difficulties associated with implementing the Arabic Convention for the Protection of Copyright, and adopted instead the Model Law for

conferences regarding IP which took place in the last century. Abd al-Munʿim Faraj al-Sadda, al- Mulkkiyya al-Maʿnawiyya: Haq al-Mu’alif (Arab Lawyers Union, 1967). This might be the cause behind the influence of the international IP framework on drafting the Egyptian IP laws. 17 Explanatory Memorandum of Egyptian Copyright Law No 354/1954 (On file with author) The Memorandum refers that it has adopted the Berne Convention and its amendments till 1948 18 Ibrahim Ahmed Ibrahim, above n, 10, 10 and Faraj al-Sadda, above n 16, 10. 19 Ibid. 2020 Countries which have signed the Convention are: Jordan, UAE, Libya, Tunisia, Iraq, Sudan, Palestine, Kuwait, Morocco and Islamic Republic of Mauritania. Qatar and Yemen ratified the Convention in 1986 and1987 respectively. 21 Arabic Convention for the Protection of Copyright (signed in Baghdad 1981). 22 The Berne Convention ,art 1. 23 Arabic Convention for the Protection of Copyright, art 4. 24 Arabic Convention for the Protection of Copyright, art 5. 25 Arabic Convention for the Protection of Copyright, art 9. 26 Arabic Convention for the Protection of Copyright, art 16, this article allows the Copyright Offices in the Member States to authorise the translation of copyright work after the elapse of one year from the publication date. This goes far beyond the conditions stipulated in Berne Appendix which require the elapse of three years and a half. 27 Arabic Convention for the Protection of Copyright, 10.

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the Protection of Copyright and Neighbouring Rights (the Model Law) 28 in the eleventh ministerial round held in the UAE on 22 November 1998. The purpose of introducing this law was to provide Arab countries with the flexibility needed to unify their laws taking into consideration their national situations. 29 The developments brought about by the Model Law introduced protection for software programs and databases,30 increased the protection term to 50 years,31 expanded the exceptions for personal use and educational use, 32 expanded the compulsory licenses,33 and introduced criminal penalties34 and protection for TPMs.35

As for patents, the Arab League’s Centre for Industrial Development drafted the Model Law for Inventions; however, it was not adopted by the Arab League Council.36

7.2.2 Current Status

The Arab countries, like other developing countries, were not participants in the process of standard setting for the current international IP system. They were absent in Berne and Paris37 as well as in the Uruguay Round of trade negotiations that led to

28 The Model Law for the Protection of Copyright and Neighbouring Rights (1998) available online at: http://www.alecso.org.tn/index.php?option=com_content&task=view&id=527&Itemid=512 29 Alecso, Explanatory Memorandum for the Model Law for the Protection of Copyright and Neighbouring Rights (1998) 3, available online at: http://www.ecipit.org.eg/arabic/pdf/Low_model2.pdf 30 The Model Law for the Protection of Copyright, art 2 and art 4. 31 The Model Law for the Protection of Copyright, art 12. 32 The Model Law for the Protection of Copyright, art 31 to 35. 33 Art 36 allows any person to apply for compulsory licence for reproduction or translation provided that granting such licence does not prejudice the legitimate interests of the author and in exchange of fair compensation. The purpose of this licence is to meet the needs of educational institutions, public libraries and national archives. 34 The Model Law for the Protection of Copyright, art 43. 35 The Model Law for the Protection of Copyright, art 43/1/D. 36 Sinot Halim Doss, above n 15, 395. 37 As discussed earlier, Tunisia was the only Arab country that has signed Paris convention in the 19th century; however, Tunisia did not participate in the standard setting process. Even its early signature cannot be considered as sovereign act as it was a French colony in 1884. See p116 et seq.

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the TRIPS Agreement.38 Nevertheless, the overwhelming majority of Arab countries are now signatories to the major IP treaties.39

A landmark development for IP regimes in the Arab world came after the establishment of the WTO in 1995 and the wave of FTAs initiated by the United States and the European Union. As discussed in Chapter 1, the WTO intrdoduced TRIPs standards and the FTA introduced TRIPs-plus standards. Both strengthened the protection and enforcement of IP laws in comparison to the international IP framework that existed before them.

For political and economic reasons, almost all the Arab counties attempted to join the WTO,40 but only 12 have succeeded in gaining full accession to date. The rest have applied and have achieved observer status.41 Some other Arab countries have signed FTAs with the United States and the European Union. As a result, the Arab countries’ economic and legal infrastructure witnessed an unprecedented wave of legislative reforms aimed at meeting their obligations under the WTO and FTAs.42 IP legislation was at the centre of these legislative reforms. Accordingly, the Arab countries can be divided into three different categories in relation to their IP systems.43

38 Egypt was the only Arab country that participated in Uruguay Round. See Muhammed El-Saed, The Development of Intellectual Property Protection in the Arab World, above n 5, 182. However, Egypt participation should not be over-estimated. As discussed earlier, there was significant lack for the conditions of democratic bargaining. See p121 et seq. 39 17 Arab countries out of the 22 have signed the Berne Convention, these include: These include: Algeria, Bahrain, Egypt, Jordan, Lebanon, Oman, Qatar, Saudi Arabia, Sudan, Syria, Tunisia, U.A.E., Morocco, Libya, Comoros, Yemen, and Djibouti. http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=15 18 Countries have signed the Paris Convention; these include the same signatories of Berne in addition to Iraq. http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=2 40 These include: Jordan, U.A.E., Bahrain, Djibouti, Kuwait, Morocco, Saudi Arabia, Tunisia, Egypt, Mauritania, Qatar, and Oman. 41 These include: Algeria, Comoros, Iraq, Lebanese Republic, Libya, Sudan, Syrian Arab Republic and Yemen. 42 Amir Khory, 'Measuring the Immeasurable - The Effects of Trademark Regimes: A Case Study of Arab Countries' (2006-2007) 26 J.L. & Com. 11, 24; Muhammed El-Saed, The Development of Intellectual Property Protection in the Arab World 182; Mohammed K El Said, 'The European Trips- Plus Model and The Arab World: From Co-Operation to Association— A New Era in the Global IPRS Regime?' (2007) Liverpool Law Review, Volume 28, Issue 1, pp 143-174, 155. 43 Compare Muhammed El-Said, above n 5,182.

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1. TRIPS-Minus:44 includes countries which have not acceded to the TRIPs Agreement and have not signed FTAs, such as Algeria, 45 Libya 46 and Iraq.47

2. TRIPs-Compatible: includes Arab countries which have acceded to the TRIPs Agreement and updated their IP laws since the mid-1990s as per TRIPS standards, such as Egypt,48 Tunisia,49 Qatar50 and UAE.51 These countries are categorised as having a ‘middle-level of implementation’.52

3. TRIPs-plus: The last category of IP regimes in Arab countries comprises those countries which have acceded to the TRIPs and signed FTAs with United States and/or the European Union. These countries include: Jordan, 53 Bahrain, 54 Morocco 55 and Oman. 56 Rami Olwan categorises

44 It is noteworthy that these countries are observers in WTO: http://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm. This might imply that these countries will follow the rest of Arab countries in adopting higher standards of protection. 45 Law 93/1993 on Patents and Ordinance No. 03-05 of 19, 2003 on Copyright and Related Rights, Algeria, WIPO, http://www.wipo.int/wipolex/en/details.jsp?id=1194 46 Patent Law No 8/1959 and Copyright Law No 9/1968, Libya, http://www.wipo.int/wipolex/en/ 47 Law No. 3 of 1971 on Copyright, Law No. 21 of 1957 on Trademarks and Trade Names. Iraq, http://www.wipo.int/wipolex/en/ 48 Law No. 82 of 2002 (Law on the Protection of Intellectual Property Rights), see WIPO, http://www.wipo.int/wipolex/en/details.jsp?id=7296 This law replaced Trade Mark Law of 1939, Patent Law of 1949 and Copyright Law of 1954. It also added the protection of plant varaities to the package of IP protection in Egypt. For more see Abd al- Rahim Abd al-Rahman, Huqūq al-Mulkiyya al-Fikriyya wa Atharuha al-Iqtisadi (Dār al-Fikr al- Jamiʿī 2009) 168. 49 Tunisian IP laws include: Law No. 94-36 of February 24, 1994, on Literary and Artistic Property; Law No. 2000-84 of August 24, 2000, on Patents and Trademark Law No. 36 of 2001, WIPO, Tunisia: http://www.wipo.int/wipolex/en/ 50 From 2002 to 2006, Qatar has reformed its IP system to meet its international obligations and TRIPS Agreement and the international treaties which Qatar has signed in 2002. The reforms include Law No. 7/ 2002, on Literary and artistic Property; Law No. 30/ 2006, on Patents. Qatar has also introduced completely new laws for the protection of Integrated Circuit (6/2005) and the Protection of Trade Secrets (5/2005), See Qatari Ministry of Justice, IP Protection Centre, http://www.moj.gov.qa/d-10.php 51 UAE Copyright Law No 7/2002 and Patent Law No. 17/2002, Abu Ghazala, UAE, http://www.agip.com/Agip_Country_Mainpage.aspx?country_key=10&lang=ar 52 Rami Olwan, above n 14, 15. 53With the exception of the Copyright Law No. 22 of 1992, the Jordanian IP system has witnessed since 1999 significant reforms to replace IP laws which were in place since 1950s. These reforms have been carried out with the aim of brining Jordanian IP system in conformity with Jordan’s international obligations, mainly under TRIPs. These amendments have played important role in preparing Jordanian IP system to accommodate the TRIPs-Plus Standards brought by US- Jordan FTA. The reforms included: Patent Law No. 32 of 1999,14 Trademark Law No. 34 of 1999,15 Industrial Design and Model Law No. 14 of 2000,16 Plant Varieties Law No. 24 of 2000,17 Geographical Indication Law No. 8 of 2000,18 Unfair Competition and Trade Secret Law No. 15 of

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these countries as having a ‘high level of implementation’ of IP standards.57

International proponents of strong IP protection have historically considered countries within the Arab world to be hotspots for infringement activities of IP.58 However, for those countries that adhered to TRIPs-plus standards, the protection and enforcement of IP have demonstrably strengthened.59

The efforts of the Arab countries to establish and develop their IP systems seemingly paid little attention to designing IP laws that would assist in promoting development and are at the same time suitable to the local and cultural context. Instead, most Arab countries are heading towards adopting TRIPs and TRIPs-plus standards for IP and therefore increasing the scope of IP protection. This atmosphere has influenced IP law and policymaking in Libya.

2000,19 and the Protection of Layout-Designs of Integrated Circuit Law No. 10 of 2000. For commentary on the relation between WTO, FTAs and new Jordanian IP system see Amir H. Khoury, ‘The Development of Modern Trademark Legislation and Protection in Arab Countries of the Middle East’ (2003) 16 TRANSNAT‟L LAW. 249; 263 and Rami Olwan, above n 14, 6. 54 Bahrain has acceded to the WTO in 1995 and signed FTA with the US.A in 2000. From 2003 to 2006, Bahrain has reformed all its IP system. The reforms included: Patent Law No. 1/2004; Trade Marks Law No. 11/2006; Copyright Law No. 22/2006; Integrated Circuit Law 5/2006; Trade Secret Law No 7/2003, Legislation and Bahraini Legal Opinion Commission, Intellectual Property Laws, available online at: http://www.legalaffairs.gov.bh/ReformPrjLegislations.aspx 55 Morocco is the birth place of WTO and it is a member to the Organization since 1995. Morocco has signed FTA with the US.A in 2004. As stated above, the nation has regulated IP matters since 1916; however, it has updated its IP as response to its international obligations. Moroccan IP laws include: Law 32/1999 on Patents, Law No. 2/2000 Copyright and Related Rights; Law No 1/2000, Protection of Industrial Property, WIPO, Morocco, http://www.wipo.int/wipolex/en/ 56 Oman is a member to WTO since 2000 and has signed FTA with the US.A in 2004. In 2000 Oman issued Law 82/2000 in Patent in 2008 issued Law No. 67/2008 on Idustrial Proeprty and Law No 65/2008 Copyright and Related Rights, WIPO, Oman, http://www.wipo.int/wipolex/en/ 57 Ibid 58 For instance, see 301 Special Reports which placed countries like Egypt, Lebanon, Algeria Kuwait Saudi Arabia in the Priority Watch List and Watch List. See reports from 2007 to 2012, USTR, Achieves of 301 Special Reports, available online at: http://www.ustr.gov/about-us/press- office/reports-and-publications/archives/2008/2008-special-301-report. Additionally, Business Software Alliance (BSA) Report for 2007 placed four Arab countries (Libya, Yemen, Algeria and Iraq) in the list of high piracy rates. For commentary on the infringement activities in the Arab World see John Carrol, ‘Intellectual Property Rights in the Middle East: A Cultural Perspective’, (2001) Fordham Intel. Prop, Media and Ent. L. J Vol 14, 557; Amir H. Khoury, ‘the Development of Modern Trademark Legislation’, above n 53, 200. 59 Arab countries that have adhered to TRIPs Plus standards do not appear on the watch lists of the Recent USTR 301 Special Reports (2010, 2011 and 2012); however, many other Arab countries are. USTR, Achieves of 301 Special Reports, available online at: http://www.ustr.gov/about-us/press- office/reports-and-publications/archives/2008/2008-special-301-report. Jordan was an exception. Despite the fact that the country has entered into FTA with US, it was placed in the Watch List of USTR 301 Special Report for 2008. For more, see Rami Olawn, above n 14, 23.

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7.3. The IP System in Libya

Libya does not have a planned, organised and sustainable process for IP law and policymaking. An overview of the history of Libyan IP laws, their structure and current policy directions demonstrates that there is a pressing need to re-think the system to ensure that it is development oriented and sensitive to the cultural context.

Libya was part of the Ottoman Empire from the sixteenth century until the conclusion of the Treaty of Lausanne in October 1912, under which the Ottoman Empire withdrew from Libya to allow for the Italian occupation of the country.60 Being part of the Ottoman Empire meant that the laws and regulations of the Empire were the applicable laws in the Libyan territories, including the Ottoman Trade Mark Law of 1881, Patent Law of 1879 and Copyright Law of 1910.

During the Italian occupation of Libya, the Italians implemented their own IP laws, which included:

 Royal Decree no. 1127 of June 29, 1939 for Patents61

 Royal Decree no. 929 of June 21, 1942 for Trademark Law62

 Royal Decree no. 633 of April 22, 1941 for the Protection of Copyright63

Libya gained its independence on 24 December 1951 and from that time started building its legal system. Libya’s Egyptian neighbours assisted in the drafting of most of her laws. Consequently, the civil and commercial codes issued on 28 November 1953 and other laws were identical to the Egyptian laws of that time.64

With regards to IP, the Egyptian Trade Marks Law no 57/1939, Patent Law no 132/1949 and Copyright Law no 354/1954 were the material sources of the Libyan IP laws, which were enacted in the 1950s and 1960s. The first Libyan IP law was the

60 Treaty of Lausanne (October, 1912) Full text, available online at: https://www.mtholyoke.edu/acad/intrel/boshtml/bos142.htm 61 Royal Decree No. 1127 of June 29, 1939 for Patents, available online at http://www.jpo.go.jp/shiryou_e/s_sonota_e/fips_e/pdf/italy_e/e_tokkyo.pdf 62 Royal Decree No. 929 of June 21, 1942 for Trademark Law, available online at WIPO, Italy, http://www.wipo.int/wipolex/en/ 63 Royal Decree No. 633 of April 22, 1941 for the Protection of Copyright, available online at WIPO, Italy, http://www.wipo.int/wipolex/en/ 64 For instance compare Egyptian Civil Law of 1949 with the Libyan Civil Law of 1953.

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Trademarks Law no 40/195665 amended by the Commercial Law 23/2010, followed by the current Patents and Industrial Designs and Models Law 8/195966 and the Libyan Copyright Law no 9/1968.67 With the exception of trademarks, which were re-organised by the new Commercial Law no 23/2010, 68 Libyan Patent and Copyright Laws have remained unchanged since their enactment.

On 28 September 1976 Libya joined WIPO and acceded to the Berne and Paris Conventions69 and in 2005 acceded to the Patent Cooperation Treaty.70 As a result of the political and economic situation in Libya from the beginning of the 1980s until well into the 2000s,71 Libya did not upgrade its IP laws to meet its international obligations under to the Berne and Paris Conventions. It is noteworthy however, that in 1996 the National Centre for Industrial Property, with assistance from WIPO, presented a draft law on industrial property.72 The proposed draft implemented the provisions of the Paris Convention and protected utility models for the first time in Libya.73 However, it was not transformed into an official law.

The Libyan IP system did not align with international standards.74 This led some major proponents of strong IP protection to criticise IP protection and enforcement measures in force in the country. For instance, the European Commission, in its final report on the expected FTA with Libya, stated that ‘there is little or no law enforcement [in Libya]’.75 Additionally, in advising American companies seeking to

65Libyan Trademark Law No 40/1956 published in the Official Gazette vol 18, 1956. 66Libyan Patent Law No 8/1959 published in the Official Gazette vol 11, 1959. 67 Libyan Copyright Law No 9/1968 published in the Official Gazette vol 10, no 6, 1968. 68 The new commercial law issued in 2010 replaced the commercial code of 1953. 69 Joining to WIPO and the Accession to the Berne and Paris Conventions came as implementation of the Law No 40/1976. 70 WIPO, Libya, http://www.wipo.int/wipolex/en/profile.jsp?code=LY#a6 71 Ezieddin Elmahjub, ‘Facebook Versus Ghaddafi: Social Networking as a Tool for Democratic Change in Libya’ in Helen Sykes, Space Place & Culture (Future Leaders, 2013). 72National Centre for Industrial Property, Explanatory Memorandum of the Project of the Industrial Property Law (on file with author). 73 Ibid 2-3. 74 Ironically, in a study published in 1978 on the situation of industrial property in the Arab World, WIPO criticised the protection and enforcement of IP in Libya. For more details see WIPO, the Situation of Industrial Property in the Arab Countries (WIPO Publications, 1978) 50. 75 European Commission, Trade Sustainability Impact Assessment (SIA) of the EU-Libya Free Trade Agreement (October 2009) 17, available online at: http://www.eulibya-sia.org/media/docs/EU- Libya%20SIA%20Final%20Report.pdf. In elsewhere, the report attempted to highlight the reasons behind the lack of enforcement of IP in Libya, it stated that:

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do business in Libya, the American Embassy in 2008 reported that ‘trademark violations are widespread and violators are adept at producing credible fakes’.76 In 2007, the Business Software Alliance (BSA) placed Libya amongst the top ten countries with the highest piracy rates.77 In terms of overall IP protection, the 2013 World Competitiveness Report ranked Libya 111 out of 144 countries.78

7.3.1 An Overview of the Libyan IP System

The current Libyan IP system deals only with the basic forms of IP, namely: copyright, trademarks, patents and industrial designs. 79

7.3.1.1 Copyright

Libya’s Arab neighbours such as Egypt and Tunisia have acceded to the TRIPs Agreement. Consequently, they have upgraded their copyright laws during the past ten years to include the protection of neighbouring rights, software programs, expanded compulsory licences and re-organisation of penalties for infringement.80 Libya was not under such obligations. Accordingly, its copyright regime is

This may be attributed to the fact that the country has no comparative advantage or any major production capabilities of related industries in the field. More fundamentally, the country is not yet a WTO member and hence under no obligation to upgrade its intellectual property laws with the TRIPS Agreement’s standards. In addition...there is an apparent lack of the legal expertise and understanding nationally in this area [intellectual property] at both the public and private levels. At 63 76 International Copyright, US and Foreign Commercial Service and US. Department of State, Doing Business with Libya: 2008 Country Commercial Guide for US. Companies (2008). Available online at: http://www.buyusa.gov/libya/en/libyaccg2008.pdf. 77 The study is available online at http://portal.bsa.org/idcglobalstudy2007/studies/2007_global_piracy_study.pdf. (at 02/02/2011). 78 World Economic Forum, The Global Competitiveness Report (2012–2013) 235, available online at http://www3.weforum.org/docs/WEF_GlobalCompetitivenessReport_2012-13.pdf 79 Al-Murtadi Abd al-Raziq, ‘Intellectual Property System Related to Commerce’ (Unpublished material) 2, Professor al-Murtadi argues that there are rights that are related to IP which are not regulated by the Libyan laws such as plant varieties and integrated circuits. He adds ‘there is a revision committee which studies the possibilities to include them in the Libyan IP system in accordance with the relevant international treaties such as TRIPS and the Washington Treaty on Integrated Circuits, 7. 80 Tunisian IP laws available on http://www.agip.com/country_home.aspx?country_key=110&lang=en, Egyptian IP law available on http://www.agip.com/country_home.aspx?country_key=30&lang=en (02/02/2011).

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underdeveloped when judged by the standards of the enforceable international IP framework.81

Literary and artistic works in Libya are regulated by Law no 9/1968 Copyright Law for the Protection of Copyright, in addition to Publications Law no 76/1976 and Law no 7/1984 on the Deposit of Publications.82 This section outlines the fundamentals of the Libyan Copyright Law and compares it with other copyright systems wherever appropriate.

7.3.1.1.1 Scope of Protection and Subject Matter

The scope of protection and copyright subject matter are dealt with in the first chapter of the Libyan Copyright Law no 9/1968 (Arts 1 to 4). It is almost identical to the first chapter of the Egyptian Copyright Act 1954 and consistent with Art 2 of the Berne Convention.83

Art 1 extends copyright protection to all original literary, artistic and scientific works of art, ‘regardless of their type, method of expression, importance or purpose behind their production’.84 Originality is the only requirement to gain copyright protection. However, the meaning of originality is not defined in the Copyright Law and the Libyan High Court did not introduce definition for it.85

Art 2 provides specific examples of literary and artistic works that are subject to Libyan Copyright Law protection. These are:

 Written works: books, booklets or any other written material.

 Works included in the arts of drawing and painting with lines and colours, engraving, sculpture and architecture.

81European Commission, Trade Sustainability Impact Assessment (SIA) of the EU-Libya Free Trade Agreement (October 2009) 17, available online at: http://www.eulibya-sia.org/media/docs/EU- Libya%20SIA%20Final%20Report.pdf . At 63. 82 Huda al-Thulthy, Intellectual Property and Electronic Commerce (Master Research, Law School Tripoli University) 13; Daw Ghamag, Qutation and Copyright in Theory and Application (Academy of Higher Studies, Libya) 206. 83 Explanatory Memorandum of Egyptian Copyright Law no 354/ 1954 84 Libyan Copyright Law, no 9/1968, art 1 85 Egyptian Cassation Court considers the work original if it is created by the author and not copied from other work. For more on this please see Abd al-Fattah Hejazi, Copyright in Comparative Law (Bahjat Publications, 2009) 15.

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 Works conveyed verbally, such as lectures, speeches, preachments and similar works.

 Dramatic works and musical plays.

 Musical works whether accompanied with words or not.

 Photographic and cinematic works.

 Geographical maps and drawings.

 Three-dimensional works related to geography, topography or science.

 Works related to applied arts.

 Works especially prepared for or broadcasted by radio or television.86

The scope of protection does not include copyright’s neighbouring right87databases or software programs.88 However, the latter might be included within the wording of Art 1 if they meet the originality requirements.89

Arts 1 and 49 of the Libyan Copyright Law no 9/1968 and Art 2 and 15 of Law No 7/1984 on the Deposit of Publications, place importance on formalities in contradiction to Arts 5/2 of the Berne Convention,90 which does not require any formalities to gain or enforce copyright protection.

Arts 1/2 requires registration in the Ministry of Culture as proof of authorship in case several authors claimed authorship over the subject matter,91 while Art 49 of the

86 art 2, the translation of the Arabic text is adopted from Wikisources, Copyright Law of Libya (1968), available online at: http://en.wikisource.org/wiki/Copyright_law_of_Libya_(1968) 87 Copyright neighbouring rights (known also as related rights) include: the rights of performers, producers of phonograms and the rights of broadcasting organizations. These rights are mainly regulated under Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (adopted in 1961). Libya is not a signatory to the Rome Convention. See WIPO, WIPO Administered Treaties: http://www.wipo.int/wipolex/en/wipo_treaties/details.jsp?treaty_id=17. 88 Arab Countries started to protect software programs in the beginning of 1990s, Ibrahin Ahmed Ibrahim, above n 10, 15. 89 Huda al-Thulthy, above n 82, 96. 90 This is the approach of the copyright laws around the world including those of the Arab countries. See Rami Olwan, above n 14, 24. 91 It is noteworthy that the Libyan Copyright Law went beyond its historical source, that is, the Egyptian Copyright Law of 1954 which did not require any type of formality to prove authorship and considered the date of publication as sufficient determiner of ownership. Compare art two of old Egyptian Copyright Law No 354/1954.

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Copyright Law and Arts 2 and 15 of the Deposit Law require the deposit of 5 copies of any literary or artistic works (if the nature of the work allows for the deposit). These articles impose financial penalties for noncompliance with the deposit requirements. 92 Nevertheless, both laws were clear that noncompliance with the formalities imposed by both of them does not amount to the loss of copyright protection.93

Finally, Art 4 of the Copyright Law excludes from the scope of copyright protection, the following categories:

1. Collections which comprise various works such as poetry selections, prose and music anthologies and other collections, without affecting the copyrights of the author of each work.

2. Works which have fallen into the public domain.

3. Collections of official documents such as texts of laws, decrees, regulations, international agreements, legal judgements and various official documents.94

Art 4 closes with a vague subsection which provides protection for the excluded categories if they contained any form of originality. If investigating originality is understood as referring to the collections of poetry and music anthologies under subsection 1, doing so regarding public sector materials or regarding works of the public domain might prove problematic. Accordingly, this subsection should be reconsidered.

7.3.1.1.2 Author’s Exclusive Rights

The Libyan Copyright Law no 9/1968 regulates the author’s exclusive rights in the second chapter from Arts 5-9. These rights can be divided into financial rights and moral rights. Generally, the author’s exclusive rights according to the Copyright Law

92 Monetary fines imposed by the said article are marginal if compared with the fines imposed by other copyright laws. Art 49 of the Copyright Law and art 15 of the Deposit Law impose fines between 10 to 100 Libyan Dinars (7 to 70 US Dollars). 93 Art 2 of Law No 7/1984 on the Deposit of Publications and Art 49/2 of the Copyright Law. Arguably, the Libyan legislator did not intend to impose formalities as requirement for copyright protection, but rather as a form of control and censorship in light of the authoritarian government existed at that time. 94The Libyan Copyright Law, no 9/1968, art 4.

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are identical to the old Egyptian Copyright Law 1954,95 and consistent with the Berne Convention. 96 a. Authors’ Economic Rights

Despite the fact that the Libyan Copyright Law no 9/1968 remained unchanged since 1968, arguably its provisions relating to authors’ economic rights could be considered as appropriate and adaptable to the digital environment. The economic rights of authors are:

 a general exclusive right for commercial exploitation;97

 the right of communication to the public;98 and

 the right to make an adaptation or translation..99

What is of particular importance among these exclusive rights is the exclusive right for commercial exploitation. This right replaces the reproduction right afforded in most copyright systems worldwide. Chapter 6 discussed at length the proposal for eliminating the reproduction right 100 and Jessica Litman’s proposal to recast the copyright holder’s bundle of exclusive rights into a unitary exclusive right of commercial exploitation. Art 5 of the Libyan Copyright Law no 9/1968 is consistent with these two proposals.

Litman demonstrated the benefits of such an approach, including that confining the bundle of exclusive rights to one right of commercial exploitation would put an end to controversies regarding the use of copyright materials on digital devices and the Internet. Reading, viewing, listening or watching would not be an act of infringement unless it entailed a breach of the right for commercial exploitation. Accordingly, challenges facing some of the modern copyright laws in the digital world would not exist under the Libyan Copyright Law.101

95 Compare second chapter of Egyptian Copyright Law No 354/1954 articles 5 to 9. 96 Articles 8 and 9 of the Berne Convention. 97 Libyan Copyright Law, no 9/1968, art 5. 98 Libyan Copyright Law, no 9/1968, art 6. 99 Libyan Copyright Law, no 9/1968, art 7. 100See p 225. 101 Among these challenges is temporary transient copies made in the computer Random Access Memory (RAM). Rami Olwan argued that the Jordanian Copyright Law failed to deal with this issue because of the specific right of reproduction granted to the author which makes any reproduction even

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b. Moral Rights

The Explanatory Memorandum for the Egyptian Copyright Law 1954 was clear in adopting the European model of moral rights,102 as opposed to the strong economic rights approach found in common law jurisdictions such as the US, and the United Kingdom.103 In fact even the new Egyptian IP law did not change the status of moral rights stated in the old law.104 This seems to be the case for all copyright laws in the Arab World since their inception.105

The moral rights of the author under the Libyan Copyright Law no 9/1968 are mainly based on Art 6bis of the Berne Convention.106 They are as follows:

 The right of attribution and paternity which gives the author the exclusive right to put his/her name on all copies of his/her work every time the work is communicated to the public.107

 The right of integrity, which allows the author to prevent any modifications or deletions of her work particularly those modifications or deletions that entail derogatory treatment to her honour or reputation.108

those made on the RAMs a violation of the exclusive right of reproduction. See Rami Olwan, above n 14, 37-38. Egyptian Intellectual Property Law No 82/2002 provides specific exception for temporary copies. art 171/9. 102The Explanatory Memorandum of the Egyptian Copyright Law of 1954. 103 There are interesting differences in the acceptance of moral rights between civil law jurisdictions and common law jurisdictions. Generally, civil law jurisdictions have strong traditions in protecting moral rights. See in general: Sam Ricketson, The Berne Convention for the Protection of Literary and artistic Works: 1886-1986 (Centre for Commercial Law Studies, Queen Mary College : Kluwer, 1987) 458-459; John Henry Merryman et al, Law, Ethics, and the Visual artsarts (Kluwer Law International 5th ed. 2007). 104 Compare articles 143 and 144 of Egyptian Intellectual Property Law No 82/2002 to articles 9 and 43 to the Copyright Law of 1954. 105 Ahmed Larabba, above n 15, 13, Rami Olwan, above n 14, 22 and 27. 106 Article 6 bis of the Berne Convention provides that: (1) Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation. (2) The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained. 107 Libyan Copyright Law, no 9/1968, art 9.

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 The right to make decisions regarding publication, including when to publish, the place of publication and the manner of publication. 109 This right is preserved for the author even after death if she/he conveyed to his heirs his will not to publish the work.110

 The right to withdraw the work from circulation or to introduce substantial modifications to it, if serious threats to his/her honour or reputation arise. This right is preserved for the author even after the disposal of the financial right provided that a fair compensation is given to the holder of financial rights.111

The moral rights of the copyright holder are perpetual and unassignable.112 They remain active even after the disposal of the economic rights or the death of the author. 113 This is one aspect of the strength of moral rights in civil law jurisdictions, if compared to some common law jurisdictions.114

The adaptation of moral rights is compatible with Shari’a’s principles regarding attribution and integrity. As discussed in Chapters 3, the sources of Islamic Shari’a seem to emphasise moral and ethical principles that promote the right of attribution and the right of integrity. Various manifestations as reflected by development of authorship and literary and artistic production in Islamic civilisation reveal strong commitment to notions of moral rights including the right to publish.

7.3.1.1.3 Exceptions and Limitations

To strike a balance between the rights of the copyright holder and the public interest, copyright laws around the world restrict the exclusive rights of copyright

108 Libyan Copyright Law, no 9/1968, art 9. 109 Libyan Copyright Law, no 9/1968, art 37. 110 Libyan Copyright Law, no 9/1968, art 10 and art 18. 111 Libyan Copyright Law, no 9/1968, art 43. 112 Libyan Copyright Law, no 9/1968, art 39. 113 Libyan Copyright Law, no 9/1968, art 20 and 21. 114 Section 195 AM of the Australian Copyright Act provides that: (1) An author’s right of integrity of authorship in respect of a cinematograph film continues in force until the author dies. (2) An author's right of integrity of authorship in respect of a work other than a cinematograph film continues in force until copyright ceases to subsist in the work. (3) An author‟s moral rights (other than the right of integrity of authorship) in respect of a work continue in force until copyright ceases to subsist in the work. See Australian Copyright Act, 1968, s 195 AM (Austl.).

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holders with certain limitations and exceptions. These limitations and exceptions allow the use of the copyright work without the authorisation of the copyright holder and often without payment.115

The Libyan Copyright Law, as the case in Europe, defines certain cases as limitations and exceptions, and does not follow the US model of open-ended fair use of the copyright works. The limitations and exceptions provided under the Libyan Copyright Law no 9/1968 are consistent with the Berne Convention. They are:

 Exception from the right of communication to the public which allows other persons, without the authorisation of the copyright holder, to communicate the work during a family gathering, a society, a private club or school meeting as long as it does not yield any financial return.116

 Exception for personal use, which allows a person to make one copy of a copyright work for personal purposes.117

 Exception for making analysis and short quotations of a protected work if they are intended for criticism, discussion, education or information provided that the moral rights of the author are preserved.118

 Exceptions granted to newspapers and periodicals to make quotation of a protected work, and to copy articles on political, economic, scientific or religious discussion of interest to the public at a certain time.119

 Exception granted to television, radio, and newspapers to publish or broadcast as news the speeches, lectures and talks delivered in open meetings of the legislative and administrative bodies and scientific, literary, political, social and religious meetings as long as they are addressed to the public.120

115 WIPO Intellectual Property Handbook, above Ch1 n 21, 51. 116 Libyan Copyright Law, no 9/1968, art 11. 117 Libyan Copyright Law, no 9/1968, art. This article is consistent with art 9/2 of the Berne Convention which permits the reproduction of copyright work so long as such reproduction complies with the Three Step Test as specified in the same article. 118 Libyan Copyright Law, no 9/1968, art 13, compare to art 10/1 of Berne Convention. 119 Libyan Copyright Law, no 9/1968, art 14, compare to art 10/1 of Berne Convention. 120 Libyan Copyright Law, no 9/1968, art 15, compare to art 2 bis/1 of Berne Convention.

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 Illustration for teaching, which provides limited exception for school to copy short quotations from published works.121

 Reproduction for translation purposes. Art 8 of the Libyan Copyright Law allows any person to translate a copyright work into Arabic, if the author does not exercise this right himself or through others within three years from the date of first publication of the work.122

 Compulsory licence for public broadcasting services, which allows radios and televisions affiliated to the Libyan Government to present works, which are shown in the theatres or in any other public place, in return for fair compensation to the rights holder.123

Ruth Okediji is critical of exceptions and limitations in national laws which are modeled on the Berne Convention.124 She maintains that they are not responsive to the priorities and needs of developing countries, especially with regards to access to education.125

Permitted uses of copyright works greatly contribute to the dissemination of knowledge, which is critical for a various human activities such as liberty, the practice of political and human rights, and economic, social and personal

121 Libyan Copyright Law, no 9/1968, art 17, compare to art 10/2 of Berne Convention. 122 Libyan Copyright Law, no 9/1968, art 8. This article is consistent with article 2/2/a of the Berne Appendix which designated special provisions for developing countries. 123 Libyan Copyright Law, no 9/1968, art 35, compare to art 11bis/2 of Berne Convention 124 Okediji argues that: From the survey conducted in this project, the uniformity of the limitations and exceptions evident in the legislation of many developing countries suggests that most of these laws were modeled on the Berne Convention without particularized attention to unique social interests, institutional constraints and/or political realities of each country. These copyright laws employ the exact language of the Berne Convention, which necessarily is broad and vague. In the absence of strong institutions to interpret and give practical meaning to such vague treaty language, the limitations or exceptions incorporated in domestic law are essentially ineffective at the domestic level. Ruth. L. Okediji, ‘The International Copyright System: Limitations, Exceptions and Public Interest Considerations for Developing Countries’ (2006) International Centre for Trade and Sustainable Development (ICTSD) 30. 125 See Chapter 4 p137. Ruth’ stated that: Access to educational works, particularly scientific journals and textbooks, is a critical need in developing countries. While the existing limitations and exceptions in the Berne Convention do extend to educational uses, a close examination of these exceptions shows that they apply primarily to the use of copyright works by instructors and teachers. Thus, this exception and limitation are of very limited value for supplying the local market with sufficient numbers of affordable copies for students and the general public. Ibid 32

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advancement. 126 In addition, appropriately crafted permitted uses have a direct positive impact in promoting local innovation and creativity.127

The Libyan set of permitted uses needs to be rethought. It is insufficient to permit only the use for teaching128 and offer compulsory licenses for public broadcasting. Permitted uses should be thought of as user rights indispensable to development129 and crafted in a manner that provides greater access to educational materials as discussed below.

7.3.1.1.4 Duration of Protection

The trend in copyright laws of the Arab world, as is the case in most countries throughout the world, is to grant copyright works protection for a term consisting of the life of the author plus fifty years.130 The Libyan Copyright Law grants a shorter term of protection which varies depending on the subject matter and the identity of the author. Generally, the term of protection under the Copyright Law is as follows:

1. As a general rule, the commercial utilization rights provided under the Libyan Copyright Law expire with the elapse of twenty five years after the death of the author, provided that the total period of protection shall not be less than fifty years as from the date of first publication of the work.131

2. Protection of works published anonymously or under a pseudonym shall expire with the elapse of twenty five years after publication of the work.132

3. With respect to photographic and cinematic works which are limited to the mere mechanical transmission of scenery, such rights expire with the lapse of only five years as from the date of first publication of the work.133

126 P. Bernt Hugenholtz and Ruth L. Okediji, ‘Conceiving an International Instrument on Limitations and Exceptions to Copyright’ (Amsterdam Law School Legal Studies Research Paper No. 2012-433) 3 127 Ruth. L. Okediji, above n 124, 30. 128 Victor Nabhan concluded an intensive study on the exceptions and limitations for educational purposes in the Arab Countries. Professor Nabhan concluded that Libya did not take full advantage of the flexibilities provided under article 10/2 of the Berne Convention, Victor Nabhan, Study on Limitations and Exceptions for Copyright for Educational Purposes in the Arab Countries (2009) 13- 14, available online at: http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=130302 129 Compare to Rami Olwan, above n 14, 48 130 WIPO Intellectual Property Handbook, above Ch1 n 21, 50. 131 Libyan Copyright Law, no 9/1968, art 20/1. 132 Libyan Copyright Law, no 9/1968, art 21.

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These provisions seem to contradict Art 7/1 of the Berne Convention which states that: ‘[t]he term of protection granted by this Convention shall be the life of the author and fifty years after his death.’134 However, Libya could benefit from the exception provided in Art 7/7 and maintain shorter terms of protection. Art 7/7 states that:

Those countries of the Union bound by the Rome Act [signed in June 2, 1928] of this Convention which grant, in their national legislation in force at the time of signature of the present Act, shorter terms of protection than those provided for in the preceding paragraphs shall have the right to maintain such terms when ratifying or acceding to the present Act.135

Libya acceded to the Berne Convention, including the Rome Act, in 1976. At the time of accession, Libya had a shorter term of copyright protection. Accordingly, Libya is entitled to keep the protection term provided in its Copyright Law despite the fact that it is shorter than the term required under the Berne Convention.

Chapter 6 discussed at length the negative impacts of the current term of copyright protection under the Berne Convention, and how many copyright scholars and commentators have proposed shorter terms of protection. It is argued here that the protection term provided under Libyan Copyright Law should remain unchanged for the same reasons discussed in the previous chapter.136 Libyan policymakers should bear in mind the exception provided under Art 7/7 of the Berne Convention in any future rethinking of the Copyright Law.

7.3.1.1.5 Infringement and Remedies

Violations against the exclusive rights of copyright holders are considered an infringement, remediable by civil redress, where the violator is obliged by a court order to cease the infringement activities and compensate the rights holder in a certain manner, such as rectification in the press or liability for damages. In some cases, copyright infringement is punishable under criminal liability rules, in the form of fines and/or imprisonment.137

133 Libyan Copyright Law, no 9/1968, art 20/2. 134 Article 7/1 of the Berne Convention. 135 For more information on Rome Act, see Sam Ricketson and Jane Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and Beyond (Oxford University Press, 2005). 136 See p215. 137 WIPO Intellectual Property Handbook, above Ch1 n 21, 53.

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As part of their obligations under the TRIPs Agreement,138 Libya’s neighbouring countries, Egypt and Tunisia, introduced criminal penalties punishable by imprisonment into their copyright laws in addition to the civil remedies.139 However, the Libyan Copyright Law imposes only fines and civil remedies.

The Libyan Copyright Law deals with infringement and remedies in a single provision,140 Art 48, which provides for fines of between twenty five Libyan Dinars ($18) and five Hundred Libyan Dinars ($400)141 to be imposed for the following infringements:

 Infringing the exclusive economic or moral rights of the author.

 Dealing in counterfeit works knowing that they are counterfeit.

 Counterfeiting copyright works in Libya.142

As for civil remedies, it appears that the Libyan Copyright Law left them to the general rules as provided in art 166 of the Libyan Civil Law.143

7.3.1.2 Patent

As mentioned above, the Libyan Patent Law No 8/1959 was an identical reproduction of the old Egyptian Patent Law No 132/1949,144 which some scholars of Egyptian patent law argue was largely drawn from the Paris Convention.145 Since its inception, the Libyan Patent Law has remained unchanged. Accordingly, it is not

138 Article 61 of TRIPs requires member states to introduce criminal procedures for copyright infringement. 139 Article 181 of Egyptian IP Law No 82/2002 and article 51 of Tunisian Copyright Law 36/1994 amended by Law No 33/2009. 140 Other copyright laws provided extensive provisions on infringement and remedies. See for instance Jordanian Copyright Law, which allocated article 46-55 for penalties. See Olwan, above n 14, 36. 141 The amount of fines prescribed by Libyan Copyright Law remained unchanged since its inception in 1968. Twenty to five hundred Libyan Dinars are of significant purchasing power in 1960s. Some Arab Countries raised the fines up to $8500. Rami Olwan, above n 14, 36. 142 Article 48/1, section two of article 48 adds that: The court may as well order the confiscation of all the instruments used for illegal publication which has occurred in violation with the provisions of articles (6), (7), (8), and (10) and which are not useful except for this publication and all counterfeit copies can be confiscated as well. The court may order publishing the judgement in one newspaper, magazine or more at the condemned party's expense. The offenses referred to in this article shall receive similar treatment if re-committed. 143 Libyan Civil Law of 1953. 144 Halim, above n 15, 377. 145 Samiha, above n 16, 19.

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in alignment with the strengthened protection offered by most of patent laws around the world, particularly, as a result of the implementation of the TRIPs Agreement.

7.3.1.2.1 Patentability146

The scope of patentability under the Libyan Patent Law is narrower than the predominant international standards. According to arts 1 and 2 of the Law, patent shall be available only for industrial products or industrial methods. Pharmaceutical formulae are explicitly excluded from patentability unless ‘special methods’ are employed to produce them.147 Even in the latter case, ‘the patent shall be granted to the method of production rather than to the products themselves’.148 Thus, it is not available for ‘any inventions, whether products or processes’.149 Additionally, the Libyan Patent Law does not regulate utility models.150

7.3.1.2.2 Duration of Protection

The standard protection term for a patentee’s exclusive rights is generally twenty years from the date of filing the application.151 The Libyan Patent Law sets a shorter period, which varies depending on the patentable subject matter.

As a general rule, the patent term is 15 years from the application date. This term is renewable for an additional five years, if the patentee proves that ‘the invention has a unique importance and that he did not yield profits compatible to his efforts and expenses’.152As for patents granted for pharmaceutical formulae, protection lasts only for a non-renewable 10 years.153

146 The conditions of patentability as known in patent law literature (novelty, inventiveness, disclosure and industrial applicability or utility) are not evident from the wording of article 1 of Libyan Patent Law. It focused only on industrial applicability of the inventionts without any explicit reference to the other known conditions of patentability. Compare article 27 of TRIPs Agreement, see WIPO Intellectual Property Handbook, above Ch1 n 21, 40. 147 Libyan Patent Law no 8/1959, article 2/b/2. 148 Libyan Patent Law no 8/1959, article 2/b/2. 149 Article 27 of TRIPs Agreement. 150 For information regarding utility models see WIPO Intellectual Property Handbook, above Ch1 n 21, 40. 151 Patents are protected for 20 years from the date of filling under article 33 of the TRIPs Agreement. It is also the general trend in most countries throughout the world. WIPO Intellectual Property Handbook, above Ch 1 n 21, 17. 152 The Libyan Patent Law no 8/1959, article 10/a. 153 The Libyan Patent Law no 8/1959, article 10/b.

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7.3.1.2.3 Limitations on Patentee’s Exclusive Rights

It seems that one of the drawbacks of the current Libyan Patent Law that it does not provide any specific exceptions to the exclusive rights of the patentee, even the long established exceptions such as experimental use. 154 It also lags behind the new Egyptian IP Law No 82/2002 which has provided extensive list of exceptions.155 The Libyan Patent Law contains only the following limitations:

Firstly, the Libyan Patent Law allows the Minister of Defence to challenge the granting of a patent to the applicant if the invention is related to defence affairs or has an actual military value. In such a case, the inventor must assign his rights to the Ministry of Defence in exchange for fair compensation. It is difficult to tell if such a limitation constitutes a compulsory licence as it does not allow a patent to be granted at the first place. It is more appropriate to be characterised as ‘a nationalisation of the invention’.

154 Christopher Garrison, 'Exceptions to Patent Rights in Developing Countries' (UNCTAD - ICTSD Project on IPRs and Sustainable Development, 2006). The UNCTAD project identifies several long established exceptions to patentee’s exclusive rights these include: private and non-commercial use exception, experimental / scientific use exception, prior use exception, extemporaneous preparation of a medicine in a pharmacy (‘pharmacy’) exception, foreign vessels, aircraft or land vehicles exception, regulatory review (‘Bolar’) exception and exhaustion of patent rights. at 3-15, for historical background on experimental / scientific use exception see Ronald D. Hantman, 'Experimental Use as an Exception to Patent Infringement' (1985) 67 J. Pat. & Trademark Off. Soc'y 617. 155 Article 10/2 listed several permitted uses as exception to the exclusive right of the patent holder granted in article 10/1 these exceptions are: (1) Activities carried out for scientific research purposes. (2) Where a third party proceeded, in Egypt, in good faith, with the making of a product or use of a process or made serious preparations for such activities prior to the date of an application for patent by another person for the same product or process. The former shall, notwithstanding the grant of patent, have the right to continue with such activities only within his enterprise and without extending the scope of those activities. Such right shall not be assigned or transferred without the other elements of the enterprise. (3) Indirect uses of the production process, subject of the invention, in order to obtain other products. (4) Use of the invention on a land vehicle, vessel or aircraft belonging to a country or entity member of the World Trade Organization, or a country that applies reciprocity to Egypt, when such a land vehicle, vessel or aircraft is temporarily or accidentally present in Egypt. (5) Where a third party proceeds, during the protection period of a product, with its manufacturing, assembly, use or sale, with a view to obtain a marketing license, provided that the marketing startsarts after the expiry of such a protection period. (6) Any other acts by third parties, provided that they shall not unreasonably hamper the normal exploitation of the patent, and shall not be unreasonably prejudicial to the legitimate interests of the patent owner, taking into consideration the legitimate interests of others.

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More interesting is the limitation provided in art 28 of the Libyan Patent Law related to patent abuse. This places the patented invention into the public domain if the patentee failed to make use of the patented invention within three years from the grant of the patent.156 The provision aims at ensuring that all patented inventions are effectively utilised during the protection term and are not being held from useful usage for rent seeking purposes.157 This provision within the Libyan Patent Law goes further than patent abuse rules provided in art 5/3 of the Paris Convention, which, as a result of not using the patent, does not place the patented invention in the public domain directly and requires the introduction of compulsory licences before cancelling the patent.158 The Libyan Patent Law puts the invention directly into the public domain if not used for 3 consecutive years.159

The final limitation is related to compulsory licensing of patents. The Libyan Patent Law allows only one form of compulsory licence, for concerns related to the public interest, such as health, defence or development of the economy. Art 30 of the Libyan Patent Law authorises the Minister of Economy to grant a compulsory licence to a competent government department ‘to utilise the invention due to reasons related to pro bono public or national defense’.160 It is noteworthy that such compulsory licence is limited only to institutions affiliated to the public sector and does not extend to private sector which might have more capacity to make use of such a licence in times of need.

Additionally, the Libyan Patent Law did not make use of art 5/3 of the Paris Convention which allows national laws to introduce compulsory licences for patent abuse. According to art 5/3 patent abuse might result when the patentee fails to exploit the invention or fails to satisfy the needs of local market.161

156 Libyan Patent Law no 8/1959, article 28. 157 For more on patent abuse see Kevin J. Arquit, ‘Patent Abuse and Antitrust Laws’ (1990-1991) 59 Antitrust L.J. 739, 740. 158 article 5/3 of the Paris Convention. 159 It should be noted that article 29 of Libyan Patent Law grants the patentee a grace period of two years if she/he was capable of proving that not using the patent is due to reasons against her/his well. 160 Libyan Patent Law no 8/1959, article 30. 161 Egyptian IP Law of 2002 regulated compulsory licences in articles 23-24. Article 23 extended the scope of compulsory licences too far in comparison to Patent Law No 132/1949, the material source of Libyan Patent Law. It authorised the Egyptian Patent Office, with approval from a ministerial committee, to grant compulsory licences in cases that include the following :

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7.3.1.3 Trademarks

The first Libyan Trademark Law to be introduced after Libyan independence was Law No 40/1956, which was identical to Egyptian Trademark Law No 57/1939. The Libyan law was re-organised by the Law of Commercial Activity, No 23/2010.162 The new Libyan Trademark Law is compatible with the current international standards as prescribed in TRIPs, and in some cases, goes beyond these standards.163

Generally, the new Libyan Trademark Law expanded the scope of trademarks’ subject matter to include service marks and sounds. 164 Additionally, it provided strong protection for well-known or famous marks without providing an appropriate measurement to identify ‘famous mark’.165 The term of protection lasts for ten years

a) Public non-commercial interest. This includes the preservation of national security, health, environment and food safety; b) Cases of emergency or circumstances of extreme urgency; c) Support of national efforts in vital sectors for economic, social and technological development; d) Upon the request of the Minister of Health, when the quantity of patented medicines made available fail to adequately meet the national needs; e) Where the patent owner refuses to grant license to a third party seeking the exploitation of the invention; f) If the owner of the patent fails to exploit the invention in Egypt after the lapse of four years since the date of the application or three years since the grant of the patent; g) If it is determined that the patent owner has abused of or exercised the rights conferred by the patent in a manner that is contrary to fair competition; h) Where the exploitation of an invention by the legitimate patent holder requires inevitably the use of another invention, underlying concrete technical advance as well as technical and economic significance compared to the other, he shall be entitled to obtain a non-voluntary license for the exploitation of the other invention, in which case the other patent holder shall equally have the same right. 162 Commercial Activity Law No 23/2010 (Special Edition of Official Gazette, 21/8/2010). This is a comprehensive law, which dealt with all aspects of commercial law including corporates, commercial papers and competition. Trademarks were re-organised in chapter ten of this law in articles 1228-1271 163 For instance article 15 of TRIPs does not require the protection of sound marks. Libyan Trademark Law in article 1228/2 provided protection for these marks. Additionally, Libyan Law provided tougher protection for famous or well-known marks in articles 1234-1236 in comparision to article 16/2 of the TRIPs Agreement. 164 Article 1228. Old Libyan Trademark Law (1954) confined the scope of trademark protection only to goods and did not protect sounds. This trend was predominant in the Arab World. 165 Article 1234 defines famous trademarks as marks that ‘remind the public of the product or service’. I think this is not a proper method to define a legal concept that entails serious legal implication. Article 1235 granted the owner of ‘a famous trademark’ to nullify any registered marks that are similar to theirs.

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and isrenewable indefinitely for the same period. 166 As for the consequences of infringement, it imposed tougher criminal fines.167

Even though the Libyan Trademarks Law borrowed some of its provisions from the TRIPs Agreement, it did not make use of art 17 of the TRIPs, which allows for the introduction of limited exceptions to rights such as fair use of descriptive terms, exceptions related to free speech or online reviews of services and products.

It should be evident from the discussion of the current Libyan IP system that it needs to be rethought. Policymakers in Libya are in agreement that the current system should be radically reformed. At this stage, it is legitimate to wonder what Libya’s policy direction is with regard to reforming the country’s IP Laws?

7.3.2 Policy Directions

Policymaking in Libya is unmistakeably heading towards strengthening IP protection. This is evident from reports of the official departments regarding the country’s accession to the WTO, the proposed draft of the FTA with the EU and the new IP Law Project.

7.3.2.1 The Path to TRIPs Standards

Libya is among the Arab Countries with a TRIPs-minus IP system. Policymaking in Libya is largely affected by policy trends in neighbouring Tunisia and Egypt, which acceded to the WTO in 1995 and implemented TRIPs standards from the late 1990s and the beginning of the 2000s. Libya submitted its application for membership to the WTO on 5 December 2001.168 It was accepted as observer on 27 July 2004 and has since been negotiating for full membership.169

As early as 7 May 2002, the office of the Libyan Prime Minister issued Decision no 184/2002 to form a high level committee with representatives from different

166 Article 1257, this is identical to the protection term provided under article 19 of the old Libyan Trademark Law. However, 10 years protection goes beyond article 18 of the TRIPs which required seven year for initial registration. 167 Article 1263 riases the imprisonment up to two years for all kinds of infringement activities and the fines between 1000 to 10000 Libyan Dinars instead of 10 to 300 under old Trademarks Law 168 Letter from Libyan Representative in U.N in Geneva to the WTO Council, (Received in the 5th of December 2001) (On file with the author) 169 WTO News, Libya given green light to negotiate WTO membership (28/7/2004) Available online at: http://www.wto.org/english/news_e/news04_e/libya_stat_27july04_e.htm

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ministries (the High Committee) to prepare Libya’s memorandum for accession to the WTO and study the effects of accession on the different sectors of the Libyan economy. 170 One of the main objectives of this committee was to study all the legislation which regulates the Libyan economy and propose any required amendments thereto.

Generally, the reports produced by the High Committee recommended a total and radical reform of the infrastructure of the Libyan economy to meet the challenges posed by the liberalisation of trade required by the WTO Agreements.171

With regard to IP, the High Committee recognised the existence of disadvantages as a result of implementing TRIPs, such as an increase in the price of intellectual products, especially drugs, high administrative costs related to IP enforcement and an increase in the costs of technology transfer.172

Nevertheless, the High Committee reports seem to argue that stronger protection of IP outweighs its negative impacts and therefore recommended a total revision of Libya’s IP system to bring it into conformity with the TRIPs standards.173

The sections which dealt with IP in the reports of the High Committee have argued that stronger protection as introduced in TRIPs is important to promote a) local innovation, b) attract FDI and b) provide stronger protection for consumers against counterfeit goods. In addition, the reports referred to the TRIPs provisions related to the transfer of technology as an advantage which should be considered.174 However,

170 General People’s Committee (Prime Minister), Decision No 184/2002 Regarding Forming a High Committee on the Accession to WTO. In 2004, this Committee was re-organised by Decision No 108/2004, the latter Decision added the Ministry of Agriculture, Ministry of Industry and the Ministry of Health to the membership of the High Committee. 171 Ministry of Economy, Summary of the Reports of the High Committee on the Accession to WTO, (22/03/2006) 2(On file with author); General Planning Council, Libya and WTO (On file with author) General People’s Committee, the Report of Service Sector on the Accession to WTO (January-2003) (On file with author) Ministry of Energy, Sectoral Report on the Effects of the Accession to the WTO (07/09/2004) (On file with author) 172 See, General People’s Committee, the Report of Service Sector on the Accession to WTO, above n 171; General Planning Council, Libya and WTO, above n 171. 173 General People’s Committee, the Report of Service Sector on the Accession to WTO, above n 171; General Planning Council, Libya and WTO, above n 171, 68. It should be noted that the Summary of the Reports of the High Committee on the Accession to WTO referred to the negative impacts of stronger IP protection without recommending any legislative reform. Ministry of Economy, Summary of the Reports of the High Committee on the Accession to WTO, above n 171, 29. 174 Ibid 29; General Planning Council, Libya and WTO, above n 171, 68.

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the reports did not demonstrate how stronger IP protection would lead to these desirable policy objectives.

On 27 July 2004, the WTO established a Working Party to commence negotiations with Libya on the reforms needed for accession. However, Libya has not yet submitted its memorandum on the foreign trade regime.175

Those who are aware of the nature of policymaking in Libya from 1969 to 2011 will understand why there have been no public debates or discussions on the pros and cons of accession to the WTO.176 Now, after the Libyan revolution and the official commitment to establish a democratic state based on transparent governance, there should be a broad public debate on the positive and negative effects on the Libyan economy of joining the WTO.177

It should be noted that the advantages of the TRIPs Agreement suggested by the High Committee’s reports are widely debated. Various studies have found no direct correlation between, on the one hand, increased IP protection, as TRIPs dictates, and increased FDI,178 technology transfer179 or local innovation,180 on the other. In this

175 WTO, Accession Libya, available online at: http://www.wto.org/english/thewto_e/acc_e/a1_libya_e.htm 176 Ezieddin Elmahjub, above n 71. 177 In the case of Jordanian accession to WTO the absence of transparent discussion of the pros and cons was a highly criticised feature of the negotiations between the Jordanian team the negotiating party of the WTO, for more on this, see Muhammed El-Saed, above n 5, 240. 178 Keith Maskus, ‘The Role of Intellectual Property Rights in Encouraging. Foreign Direct Investment and Technology Transfer’ (1998) Duke Journal of Comparative & International Law, 152; Amy Jocelyn Glass and Kamal Saggi, ‘Intellectual property rights and foreign direct investment’(2002), Journal of International Economics 56, 408. The authors argue that stronger IPR protection in developing countries does not reduce the levels of infringement’ which would mean that it should not have practical effect on increasing the rate of FDI. 179 For instance see Lee Branstetter, Raymond Fisman and C. Fritz Foley, ‘Do Stronger Intellectual Property Rights Increase International Technology Transfer?: Empirical Evidence from US. Firm- Level Data’ (2006) The Quarterly Journal of Economics, 322; Suerie Moon ‘Meaningful Technology Transfer to the LDCs: A Proposal for a Monitoring Mechanism for TRIPS article 66.2’ (2011) International Centre for Trade and Sustainable Development, 12 ; Carlos. M. Correa, Can TRIPS Agreement foster technology transfer to Developing Countries?, in Maskus above n 178, 254. Professor Correa argues that from its inception, the TRIPS Agreement was not designed to encourage the transfer of technology to developing countries, and therefore … has not been successful in helping developing country to receive mush of technology from the developed ones. 180 Burcu Kılıç, Boosting pharmaceutical innovation in the post-trips era; the real life lessons for developing world, (PhD Thesis Centre for Commercial Law Studies Queen Mary, University of London February 2011); Richard Byrnes, Tripping In: How the TRIPS Agreement will Inﬂuence Innovation in Pharamaceutical Sector (Master Thesis, Maastricht and Oslo University, 2003-2004). Other studies argued that IPRs protection will spur innovation, see for instance, Y. Chen, T.

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context, Professor Keithe Maskus argues that IPRs would play a role in FDI only if considered alongside, inter alia, ‘market liberalisation and deregulation, technology development policies, and competition regimes’ 181 Maskus explains:

[It] must be emphasized that strong IPRs alone are insufficient for generating strong incentives for firms to invest in a country. If that were the case, recent FDI flows to developing economies would have gone largely to sub-Saharan Africa and Eastern Europe. In contrast, China, Brazil, and other high growth, large-market developing economies with weak protection would not have attracted nearly as much FDI if investment were heavily dependent solely on IPRs.182

Other economists carried out an empirical study in 2008 on the potential role that IP might play on the transfer of technology to developing countries. They found that strong IP protection aligned with TRIPs does not lead to efficient technology transfer. There are several important factors that help in this regard. These include ‘the quality of infrastructure, government policies and regulations, and market structure, among others’183 Professor Carlos. M. Correa has authored a book on the impact of the TRIPs Agreement on both FDI and technology transfer and found no direct positive correlation between introducing IP protection compatible with TRIPs and increased levels of FDI and technology transfer.184

As for the argument regarding the consumer protection, it is mainly related to trade mark enforcement and does not require a complete reform of IP laws; particularly, with the existence of the current Libyan Trademark law which provides sufficient protection for consumers against counterfeit goods.

Puttitanun, ‘Intellectual Property Rights and Innovation in Developing Countries’ (2005) Journal of Development Economics 78, 474– 493. 181 Keith. Maskus, above n 178, 152. 182 Ibid 183 Park, W. G. and D. C. Lippoldt, ‘Technology Transfer and the Economic Implications of the Strengthening of Intellectual Property Rights in Developing Countries’ (OECD Trade Policy Working Papers, 2008) 29, 184 Carlos. M. Correa, Intellectual Property Rights, the WTO and Developing Countries: The TRIPS Agreement and Policy Option (Zed Book, 2000) 30 and 36.

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7.3.2.2 The Path to TRIPs-plus, EU-Libya FTA

Muhammed El-Said argues that the EU bilateral trade agreements with the Arab world ‘represent the first known model of TRIPS-plus agreements’.185 They date back to the 1990s with the conclusion of Association Agreements (AA) between the EU and Arab countries such as Morocco (1996) and Tunisia (1998).186 Concluding bilateral trade agreements remains central to the external policy of the EU.187 In November 2008, after a successful political bargain, 188 the EU announced its intentions to conclude a FTA with Libya 189 covering trade in goods, services, investment and IP.190 The negotiations lasted for more than two years and were suspended after the uprising in February 2011.191

As a result of the negotiations, a final draft of the EU-Libya FTA had been prepared (the Draft).192 This Draft featured 135 pages covering all the provinces of free trade. It contained a comprehensive chapter on IP consisting of thirty articles in thirty pages — the largest chapter in the Draft.

Art 2 of Chapter A of the Draft defined the scope of IP in the following terms:

For the purpose of this Agreement, intellectual property rights embody copyright, including copyright in computer programs and in databases and rights related to copyright, rights related to patents, trademarks, trade names in so far as these are protected as exclusive

185 Muhammed El-Said, ‘the European Trips-Plus Model and the Arab World: From Co-Operation to Association— A New Era in the Global IPRS Regime?’ (2007) Liverpool Law Review, Volume 28, Issue 1, 161. 186Ibid, Peter Drahos, ‘BITS and BIPS Bilateralism in Intellectual Property’ (2001) Journal of World Intellectual Property, 803. 187 European Union External Action, Association Agreements, available online at: http://eeas.europa.eu/association/index_en.htm 188 The European declaration regarding concluding the FTA came after the Libyan authorities released 5 Bulgarian nurses who were convicted for internationally injecting Libyan children with HIV/AIDS. For more on this see Wikileaks, Libya Wikileaks Cables: Libya-EU Framework Agreement (2008) Available online at: http://www.telegraph.co.uk/news/wikileaks-files/libya-wikileaks/8294843/THE- EU-LIBYA-FRAMEWORK-AGREEMENT-VENI-VISAS-VETO.html 189 EU is the first trade partner to Libya, the exchange of exports and imports between the two sides reached in 2011 to over $ 14 Billion, EU Bilateral Trade and Trade with the World: Libya (29-Nov- 2012) Available online at: http://trade.ec.europa.eu/doclib/docs/2006/september/tradoc_113414.pdf 190European Commission, Trade, Countries and Regions: Libya, http://ec.europa.eu/trade/creating- opportunities/bilateral-relations/countries/libya/ 191 EU Neighbourhood Information Centre, EU suspends framework agreement talks as Libya reaches 'point of no return - See more at: http://www.enpiinfo.eu/mainmed.php?id_type=1&id=24232#sthash.54flaeFk.dpuf 192 EU- Libya Draft Framework Agreement (on file with author).

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property rights in the domestic law concerned, designs, layout- designs (topographies) of integrated circuits, geographical indications, including designations of origin, indications of source, plant varieties, protection of undisclosed information and the protection against unfair competition as referred to in Article 10bis of the Paris Convention for the Protection of Industrial Property (Stockholm Act 1967).193

Additionally, arts 13 through 29 of Chapter A contained detailed provisions on enforcement of IP, including provisional and precautionary measures,194 corrective measures,195 injunctions,196 border measures,197 damages198 and criminal penalties.199 If compared to other EU FTAs with developing countries, the Chapter concerning IP in the EU-Libya FTA draft is the most comprehensive.200 It is even more detailed than the IP provisions in the US model. FTAs 201

Generally, the Draft contained two types of provisions:

A. TRIPs-compatible provisions, which are a mere reproduction of provisions which already exist in the TRIPs Agreement, such as the requirement to protect geographical indications and integrated circuits, the requirement to comply with the Berne Convention,202 regulation of limitations and exceptions under the Three Step Test203 and provisions related to enforcement.204

B. TRIPS-plus provisions, this part requires Libya to introduce IP protection beyond TRIPs requirements.205 The TRIPs-plus provisions in the EU-Libya FTA draft are long and detailed. Investigating all of them is beyond the scope of this section. Examples include:

193 Chapter A, art 2 of the Draft. 194 Chapter A, art 18 of the Draft. 195 Chapter A, art 19 of the Draft. 196 Chapter A, art 20 of the Draft. 197 Chapter A, art 29 of the Draft. 198 Chapter A, art 22 of the Draft. 199 Chapter A, art 27 of the Draft. 200 Compare for instance, EU-Tunisia and Egypt AA. 201 Compare with IP provisions with US FTAs with Jordan, Bahrain and Oman, for more see Muhammed El-Said, the Morning after, 22. 202 Chapter A, art 5 of the Draft. 203 Chapter A, art 5/5/5 of the Draft. 204 Chapter A, art 13-29 of the Draft. 205 Compare Drahos, above n 186, 797 and Mohammed K. El Said, 'The European Trips-Plus Model’, above n 185, 159.

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a) The requirement to ratify international agreements in addition to those required by TRIPs, such as the WIPO Internet Treaties, the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purpose of Patent Procedure, the Geneva Act, the Hague Agreement Concerning the International Registration of Industrial Designs 1999, the Trademark Law Treaty and the International Convention for the Protection of the Varieties of Plants (UPOV).206

b) Extension of copyright terms to 70 years.207

c) Introduction of so-called ‘Supplementary Protection Certificates’, which provide an extension, for up to five years, in the patent protection term to compensate patentees for regulatory delays in being able to exploit the patent.208

d) Although the EU Libya FTA draft obliged parties to sign the WIPO Internet Treaties, which provide protection for TPMs and DRM,209 art 5/6 of the draft provided comprehensive and detailed provisions for the protection of TPMs and DRM.

e) Data exclusivity protection, which obliges both parties to protect, for up to eight years, data submitted for the purpose of obtaining an authorisation to put a pharmaceutical product on the market.210

f) The Draft imposes alternative dispute settlement procedures,211 which weaken the multilateral dispute settlement framework as it forces Libya to adhere to one-on-one procedures, for which Libya has neither the

206 Chapter A, articles 5, 6, 8, 9 and 11 of the Draft. 207 Chapter A, art 5/2 of the Draft. 208 Chapter A, art 9/2 of the Draft, it states that: The Parties shall provide for a further period of protection for a medicinal or plant protection product which is protected by a patent and which has been subject to an administrative authorisation procedure, that period being equal to the period referred to in paragraph 1 second sentence above, reduced by a period of five years. 209 articles 11 and 12 of the WCT. 210 Chapter A, art 10 of the Draft, Muhammed El-Said, argues that these provisions affect access to medicine by delaying the introduction of generic drugs, Mohammed El Said, ‘The Morning After: TRIPS-Plus, FTAs and Wikileaks - Fresh Insights on the Implementation and Enforcement of IP Protection in Developing Countries’, (PIJIP Research Paper Series, 2012) 11. 211 Chapter E of the Draft, articles 1 through 22.

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resources nor the expertise when compared to the EU. This in turn deprives Libya of the advantages of the multilateral dispute settlement system, which offers more stable and fairer procedures.212

If the introduction of TRIPs standards has been criticised for the lack of sensitivity to the development needs of developing countries; most certainly, TRIPs-plus provisions should attract even wider criticism.213 Prolonging the patent term for an extra eight years and extending the copyright term from 50 to 70 years will undoubtedly have a deleterious effect, since shorter-term protection has been criticised.214

Moreover, TRIPs-plus provisions in the Draft would contribute to the erosion of the flexibility provided under TRIPs, if Libya accedes to the WTO. 215 The detailed provisions on IP in the Draft will restrict Libya’s ability to interpret TRIPs standards pursuant to local policy objectives.216

In a recent study carried out by Muhammed El Said on the impact of the US-Jordan FTA (USJFTA) on the health sector in Jordan, supported by an empirical study conducted by Oxfam in 2007, it was found that TRIPs-plus provisions contained in the USJFTA have serious negative impacts on the Jordanian health sector. These negative impacts come as a result of extending the term of pharmaceutical patents, which leads to delaying the availability of generic drugs and thereby increasing the price of medicines.217

212 Mohammed K. El Said, 'The European Trips-Plus Model’, above n 185, 161. 213 Drahos, above n 186, 804; UNCTADT, the TRIPAS Agreement and Developing Countries (UN, New York and Geneva, 1997) 19. 214 See p305. 215 Henning Grosse Ruse-Khan, ‘The International Law Relation between TRIPS and Subsequent TRIPS-Plus Free Trade Agreements: Towards Safeguarding TRIPS Flexibilities’ (2010-2011) 18 J. Intell. Prop. L. 325, 331. 216 Compare Muhammed El-Said, ‘the European TRIPs Plus’, above n 185, 165-166. 217 Mohammed El Said, above n 211, 12-13; Oxfam, All costs, no benefits: How TRIPS-plus intellectual property rules in the US-Jordan FTA affect access to medicines (Oxfam Briefing Paper, March 2007) Available online at: http://donttradeourlivesaway.files.wordpress.com/2011/01/all-costs- no-benefits.pdf Oxfam study demonstrated how TRIPs-Plus provisions of USJFTA impacted cheap generic drugs marker, it stated that: Since the US-Jordan FTA was formally enacted on 17 December 2001, TRIPS-plus rules have given multinational pharmaceutical companies more tools to prevent generic competition with their products. In fact, most pharmaceutical companies have not bothered to apply for patent protection for

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The Oxfam study gave particular attention to the impact of the data exclusivity provision in USJFTA, equivalent to art 10 of the EU-Libya FTA draft. It was found that:

Multinational pharmaceutical companies have prevented generic competition for many medicines by solely enforcing data exclusivity provisions in Jordan’s IP law…According to Oxfam’s analysis of 103 medicines registered and launched since 2001 that currently have no patent protection in Jordan, at least 79 per cent have no competition from a generic equivalent as a consequence of data exclusivity.218

An additional worrying observation is that with all the Draft’s TRIPs and TRIPs-plus provisions, it omitted any specific regulation of users’ rights. The Draft did not contain permitted uses deemed essential for Libya as a developing country, including permitted uses for educational purposes or compulsory licences for public interest concerns.

It is common in bilateral negotiations that the strong party, who has the resources and expertise, comes to the table with a prepared draft of the treaty that reflects its interests.219 Strong IP protection may actualise the interests of the EU’s industrial giant while burdening the Libyan economy. Libyan policymakers seem not to adequately acknowledge this. A report which has been prepared by Libya’s negotiating team regarding the IP chapter of the Draft indicates that the Libyan party was not fully aware of the ramifications of the TRIPs-plus provisions in the Draft.220 On the contrary, the report reveals a willingness to reform Libyan IP laws towards a strengthened protection, 221 a willingness remarkably evident in the new IP Law Project discussed below.

medicines launched onto the Jordanian market. Instead, multinational drug companies rely on TRIPS- plus rules, in particular, data exclusivity, to prevent generic competition for many medicines. Oxfam analysed 108 medicines launched onto the Jordanian market since 2001. These medicines represent 42 percent of all new medicines with no generic equivalent launched from 2002 until mid- 2006, and more than 70 per cent of sales of new medicines with no generic equivalent.7. 218 Oxfam, All costs, no benefits, above n 217, 7. 219 Drahos, above n 186, 794. 220 Libyan Negotiating Team on EU Libya FTA, Report on IP chapter (5/11/2010). (on file with author). 221 Ibid, 3, the willingness of the Libyan side to reform the Libyan IP laws was evident even for the European side. European negotiating team reported that ‘[it] was difficult to discover strengths in the [IP] system excluding the strong [willingness] of professionals to improve the actual status’, EU Commission Delegation to Libya, IP Protection and Enforcement, (Unpublished material) 4.

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Ironically, a report financed by the European Commission on the EU-Libya FTA indicated that the TRIPs-plus provisions would adversely affect the development process in Libya, particularly technological development.222 It stated that:

IPR protection in an agreement with Libya may have different effects on development … Libya has not yet reached the point where it may need reciprocal protection for its own rights holders. In developing its policy on IPR, Libya has to draw a balance between promoting the use of modern technology in its infrastructure and its major current industries, notably the oil and gas extraction industry, and its attempts to diversify the economy into other high technology sectors. Strong IPR protection in an EU‐Libya agreement would tend to favour the former, while a degree of laxity in the early stages might benefit the latter.223

Accordingly, the report further indicated that an FTA including TRIPs-plus protections means that Libya will have to transform its IP regime from a TRIPS‐ minus status to a TRIPS‐plus one with little preparation and without taking the appropriate time needed to start the process of industrialisation. This ‘would have a negative impact on the country [and] will likely impose additional administrative and legal costs on the country’224

Therefore, the report urged the EU to draft an IP chapter that takes into consideration the level of development and industrial and technological base in Libya.225 It seems that policymakers in Libya did not take note of the dangers of both TRIPs and TRIPs-plus standards as is clear from the appearance of the new IP Law Project.

222European Commission, ‘Trade Sustainability Impact Assessment (SIA) of the EU‐Libya Free Trade Agreement’ above n 75. The Report referred to the experiences of developed country when they were developing countries and the newly industrialised countries of East Asia when they had weak IP laws, it stated that’ Most developed countries, as well as the newly industrialised countries of East Asia, accelerated technology transfer during their own technological development by encouraging the copying of foreign designs rather than prohibiting it. These countries have subsequently granted patent rights to foreign companies, though not until their own technological base was strong enough to need reciprocal protection for its own rights holders. At 65 223 European Commission, ‘Trade Sustainability Impact Assessment’, above n 75. 224 Ibid 66 225 Ibid. The Report referred to the weakness of Libya’s industrial base, it stated that: The majority of the country's economic and industrial activities remain at an early stage of development. By way of example, there are few patents granted in the country every year. In the field of pharmaceutical production (an area which is expected to be mostly affected by the strengthening of intellectual property protection with a direct impact on access to health and medicines), the country has a limited number of producers with little capability to compete with foreign producers. 66.

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7.3.2.3 The New Libyan IP Law Project

Libya’s National Agency of Scientific Research, the body responsible for administering IP policies in Libya,226 issued Decisions no159/2003 and no 170/2003 to form a committee to reform Libyan IP laws.227

The Reform Committee followed in the footsteps of Egyptian legislators and presented a proposal for a comprehensive IP law, which draws heavily on the Egyptian IP Law no 82/2002. A quick survey of the Explanatory Memorandum and the articles and sections of the new Libyan IP Law Project reveals that it has translated the policy directions discussed above, into an expanded and strengthened protection for IP.228

The Explanatory Memorandum of the new IP Law Project refers to the following as examples of increased IP protection:229 a. The expansion of the scope of patent protection to include products, processes and utility models. The current Libyan Patent Law, as discussed above, protects only industrial inventions and excludes pharmaceutical formulae and utility models. b. Protection of copyright’s neighbouring rights. c. Introduced protection for integrated circuits, plant varieties, geographical indications and trade secrets. d. Extending the protection term for patents from fifteen years to twenty years and for copyright from twenty five to fifty years. e. protection of software programs and databases. f. Protection of TPMs and DRM.

226 Libya’s National Agency of Scientific Research, http://www.nasr.ly/nasr2012/index.php/home- page 227 National Agency of Scientific Research, Decision no159/2003 on Forming Special Committee to Reform Libya’s Industrial Property Law and Decision no170/2003 on Forming Special Committee to Reform Libya’ s Copyright Law. These two decisions were supplemented by decision no19/2005 issued by National Office of Research and Development for the Reform of the Libyan IP laws. The later decision assembled the work of the two previous committees into one committee to draft a unified IP law. 228 Explanatory Memorandum of New Libya IP Project (on file with author). 229 Ibid.

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g. Introduction of new imprisonment as a penalty for IP violations and increasing monetary fines to up to 10,000 Libyan Dinars ($7500).

Nevertheless, the IP Law Project took very important steps in expanding the lists of exceptions and limitations, when compared to current Libyan IP laws, which marginalised their importance as discussed above. For instance, a) it expanded the exceptions to the exclusive rights of copyright and patent holders230 and b) expanded the scope of compulsory licences for both patent and copyright.231

230 Art 12 of the Industrial Property Section in the new Libyan IP Law Project provided six exceptions to the exclusive tights of the patentee it stated that: The following shall not be a violation of Patent: 1) Where a third party proceeded, in good faith, with the making of a product or use of a process or made serious preparations for such activities prior to the date of an application for patent by another person for the same product or process. The former shall, notwithstanding the grant of patent, have the right to continue with such activities only within his enterprise and without extending the scope of those activities. Such right shall not be assigned or transferred without the other elements of the enterprise 2) Indirect uses of the production process, subject of the invention, in order to obtain other products. 3) Where a third party proceeds, during the protection period of a product, with its manufacturing, assembly, use or sale, with a purpose to obtain a marketing license, provided that the marketing starts after the expiry of such a protection period. 4) Activities carried out for scientific research purposes. 5) Any other acts by third parties, provided that they shall not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties. 6) Use of the invention on a land vehicle, vessel or aircraft belonging to a country or entity member of the World Trade Organization, or a country that applies reciprocity to Libya, when such a land vehicle, vessel or aircraft is temporarily or accidentally present in Libya. With regard to copyright art. 24 of the Copyright Section kept the existing exception of the current Copyright Law and reformed the exception related to education from only illustration for teaching to general exception for educational purposes. The text has also expanded the subject matter of the exception to include, in addition to texts, software programmes, audio and visual recordings. 231 While the current Libyan Patent Law dealt with compulsory licences in one article and confined them in purposes related to national defence or public health, articles 25 and 26 of the new Libyan IP Law Project placed significant importance on them. The Law Project allocated two pages for the provisions of compulsory licences and demonstrated seven different categories for them which include : 1) Public non-commercial interest. This includes the preservation of national security, cases of emergency or circumstances of extreme urgency, health, environment and food safety. 2) when the quantity of patented medicines made available fail to adequately meet the national needs 3) Where the patent owner refuses to grant license to a third party seeking the exploitation of the invention 4) If the owner of the patent fails to exploit the invention in Libya, himself or through his consent; or if the patent was not sufficiently exploited after the lapse of four years since the date of the application or three years since the grant of the patent, whichever comes later; or if the patent owner suspended, without a valid reason, the exploitation of the patent for more than one year

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7.3.2.4 Evaluation of Policy Directions

It was observed in Chapter 4 that NDCs have updated their IP protection laws gradually, pursuant to their level of economic, technological and cultural development. The scope of IP protection expanded with the expansion of their scientific, industrial and technological base.232 This should also take place in Libya.

During the time when policies of strengthening IP protection (2002-2006) were being crystallised, reports indicated that Libya had a deficient industrial base and an underdeveloped innovation system.233 In a list of 111 countries, Libya ranked the last in terms of innovation capabilities, and 84th in terms of the quality of research institutions and the total number of patent applications.234 Further details will be provided below on the weakness of Libya’s industrial base and innovation capabilities.

The tailoring IP policies should be development-sensitive. Wise policymaking would have taken note of the ramifications of introducing strong IP protection in a developing country such as Libya. Libya has no comparative advantage in

5) it is determined that the patent owner has abused of or exercised the rights conferred by the patent in a manner that is contrary to fair competition 6) Where the exploitation of an invention by the legitimate patent holder requires inevitably the use of another invention, underlying concrete technical advance as well as technical and economic significance compared to the other, he shall be entitled to obtain a non-voluntary license for the exploitation of the other invention 7) The grant of a non-voluntary license in the field of semi-conductor technology shall be authorized for public non-commercial purposes only, or to remedy the consequences of any unfair competition practices. With regard to Copyright, unlike the current Libyan Copyright Law, which confined compulsory licences to public broadcasting services, the new IP Law Project, in article 23 of the Copyright Section, allowed any person to ‘request from the competent ministry to be granted a personal license for the reproduction or translation, or both, of any work protected under this Law… against equitable remuneration’. The new IP Law Project stipulated adherence to article 13 of the TRIPs Agreement regarding the exceptions and limitations, Three Step Test. It stated that granting licences should not ‘conflict with a normal exploitation of the work and should not unreasonably prejudice the legitimate interests of the right holder’ 232 CIPR Report, Integrating Intellectual Property Rights and Development Policy, above Ch 4 n 211, 15, 49, 162. 233 In a study carried out in 2006 by Michael Porter and Daniel Yergin on the competiveness of Libyan economy, the researchers concluded that, apart from the oil and gas industries, the country had very underdeveloped industrial base with very small contribution in GDP. Michael Porte and Daniel Yergin, Competitiveness of Libya: A Report for National Planning Council (2006) 18. Stronger IP protection did not positively affect development indicators even in countries with a degree of absorptive capacity. Andréa Koury, ‘Changing WIPO’S Ways? The 2004 Development Agenda in Historical Perspective’ (2006) the Journal of World Intellectual Property Volume 8, Issue 6. 234 Ibid, National Planning Council, Strategic Project for Capacity Building and Human Development, (November, 2007) 67 (On file with author).

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implementing the same rules and regulations which are implemented in the EU or the rest of developed world. The country’s IP policy should be tailored pursuant to local policy objectives and be responsive to the local environment. Introducing IP protection, should not by any means go beyond the necessary levels. It has been established earlier that stronger protection does not mean more growth and development. On the contrary, lenient IP protection ‘may ... be beneficial, or necessary, in the early stages of economic development’. 235 IP policymaking in Libya should embark from this understanding. The next section will present useful recommendations in this regard.

7.3.3 Policy Recommendations

Libya is a developing country, where Islamic Shari’a is the supreme source of law and culture. The benchmark for accepting IP laws under Shari’a is their sensitivity to development. Therefore, Libya’s supreme source of law and culture, along with its status as developing country mandate that the Libyan policymakers should pursue IP laws and policies oriented towards promoting overall development and social welfare. These laws and policies are not necessarily similar to those which Libyan policymakers sought to implement in the past, particularly those related to TRIPs- plus and the new Libyan IP law project.

There are various examples of legislative reforms and policies measures related to IP, which can contribute to establishing the development focus in the Libyan IP system and, therefore, making it compatible with Islamic Shari’a. However, reforms related to IP are not enough. Policymakers should also endeavor to provide the institutional conditions for establishing a national innovation strategy in combination with planned, organised and sustainable policies on IP.

7.3.3.1 Policies related to IP Laws

It is argued in Chapter 5 that the principles of Islamic Shari’a mainly promote openness and non-concentration of knowledge resources. In Chapter 6, it is argued that policies and legislative reforms oriented towards openness, strengthening users’ rights and adopting sharing and cooperation as modalities for knowledge and cultural production can contribute to the wider availability of knowledge and cultural

235 Chang, Under-explored Treasure Troves of Development Lessons, above Ch 4 n 138, 82.

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resources and thereby promote development. This section aims to introduce to Libyan policymakers several examples of policy considerations and legislative reforms to the same effect.

7.3.3.1.1 Construction of a Shari’a-friendly IP System

Laws should reflect society’s heritage and culture. Anglo-Saxon traditions and Civil Law traditions influenced the inception of IP legislations in Europe, UK and US. Islamic Shari’a is a legal system of its own with different sources and principles which may add to human heritage regarding the regulation of knowledge and cultural production.

The Libyan constitution explicitly states that laws should stem from the sources and principles of Islamic Shari’a. Policymakers should consider this when crafting Libya’s new IP laws, which are expected to replace the current laws.

As discussed through Chapters 4, 5 and 6 of this thesis, the sources, principles and objectives of Islamic Shari’a significantly intersect with modern trends in international IP jurisprudence, which recognise that the existing international IP framework has contributed to an unfair concentration of knowledge resources, excessive restrictions on their use and re-use. These trends have emerged alongside proposals for legislative reforms and policy measures oriented toward openness, fair distribution and greater dissemination of knowledge and cultural resources as a more efficient road map for increased innovation, growth and prosperity.

Libya’s framework for drafting IP legislation and policies should integrate these modern trends which would promote development objectives and, at the same time, be more faithful to the principles of Islamic Shari’a, upon which all Libyan legislation should be based.

7.3.3.1.2 An Evidence-based Approach

As discussed above, most Arab countries have replaced their IP laws of the 1940s and 1950s with TRIPs or TRIPs-plus models. Therefore, rethinking their IP laws and policies would be difficult in light of their international obligations. The situation in Libya is different. Libya has not — yet — acceded to TRIPs or TRIPs-Plus Agreements, and has IP laws since 1950s and 1960s, which most likely to undergo a

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radical reform in line with the total legal reform taking place as a result of the regime change in 2011. Accordingly, an historical opportunity exists for Libya to draft IP laws suitable for the local context.

An essential step that should be taken is to depart from the faith-based approach which has dominated IP policy in the last decade, and which, as seen above, links stronger IP protection with the promotion of innovation, FDI and technology transfer. As discussed in the Chapters 4 and 6 of this thesis, the faith-based approach is most likely to result in policy without evidence and, therefore, policy without balance.

Instead, a change in policy mindset needs to take place by replacing the current faith- based approach with an evidence-based approach.236

For instance, if the term of protection were extended, the exclusive rights of IP owners were broadened or protection were introduced for unprotected intangible creations, we cannot assume that doing so would promote innovation and progress. In place of such assumption, there should mandatory and empirical impact statements, and policy reviews to investigate, for instance, the implications of the protection for public health, access to education and local innovation. 237 Additionally, policymakers should ascertain if TRIPs and TRIPs-plus provisions, introduced in other developing countries with conditions similar to Libya, have contributed to more technology transfer and FDI or whether they have only raised the costs of technology transfer and added administrative expenses that exceed any benefit.238

7.3.3.1.3 The Libyan Development Agenda on IP

There are strong correlations between a Shari’a-friendly IP system and a development-oriented IP system.239 Policies which aim to articulate a development- oriented IP system respond to the objectives and sources of Islamic Shari’a.

236 James Boyle, ‘What Intellectual Property Law Should Learn from Software’, above Ch 6 n 34,76 237 William Patry, How to Fix Copyright, above Ch 6 n 63, 52. 238 Muhammed El-Said indicates to impact assessment reports on the effects of Jordan FTAs with the US and the EU. These reports conclude that the FTAs with the said countries failed to attract FDI or increase Jordan’s exports to them and that the overall benefits to the Jordanian trade sector ‘were poor and dismal’. Muhammed El-Said, the Development of Intellectual Property Protection in the Arab, above n 5, 242. 239 This proposition has been stressed throughout Chapters 4, 5 and 6.

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Therefore, Libya as a developing country, which seeks to implement Islamic Shari’a, should pursue an agenda which orients its IP policymaking towards development. This section argues that the proposed agenda should include an understanding of the importance of the development dimension in IP policymaking and make use of international initiatives on IP and development, namely, the WIPO Development Agenda.

7.3.3.1.3.1 Understanding the Development Dimension

Libyan universities do not teach courses on IP law. Therefore, it comes as no surprise that there is a deficiency in the human resources responsible for administering IP policies in Libya. As the country is moving forward to establish its economic, technological and industrial base, it is important to understand what type and level of IP protection Libya needs in order to foster its journey towards sustainable economic and social development.

Brazil has a very interesting experience in teaching and raising awareness of the relationship between IP and development through the Centre for Technology and Society (CTS). This Centre assists Brazilian students and policymakers to go beyond the traditional view that more IP protection leads to more growth, into exploring different ways to promote development through alternative approaches in administering IP. Therefore, the CTS teaches about the importance of user rights for education, public health and promoting local creativity and innovation, the importance of FOSS as an alternative to propriety models of software, and the importance of the A2K movement for the dissemination of knowledge for the benefit of humanity.240 Moreover, the CTS prepares bills and studies on IP, which take into consideration the level of development within the country.241

Therefore, in order to integrate the development dimension into IP policymaking, Libyan educational institutions and bodies responsible for administering IP should learn and teach about the relationship between IP and development. The following measures would be beneficial:

240 Pedro Paranagua, ‘Strategies to Implement WIPO’s Development Agenda: A Brazilian Perspective and Beyond’ in Jeremy De Beer, Implementing WIPO’s Development Agenda (Wilfrid Laurier University Press, 2009) 129-149. 241Ibid, 131.

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 The establishment of a specialised centre for the knowledge economy, the mandate of which includes developing policies that foster development through IP.

 Law schools in Libyan universities should have courses which view IP through the lens of development.242

Libyan Patent and Copyright offices should educate local inventors, authors and the general public about how dissemination of knowledge fosters development in line with the importance of IP protection.243

7.3.3.1.3.2 Interaction with the WIPO Development Agenda

In October 2007 WIPO issued a decision to establish its Development Agenda.244 The established Agenda’s central objective is to ensure that development considerations are adequately integrated into WIPO’s work.245 WIPO’s Development Agenda consists of forty-five recommendations grouped into six clusters: (A) technical assistance and capacity building; (B) norm setting, flexibilities, public policy, and public domain; (C) technology transfer, information and communication technologies, and access to knowledge; (D) assessment, evaluation, and impact studies; (E) institutional matters, including mandate and governance; and (F) other issues.

The Development Agenda is an internationally recognised policy framework that links IP to development. It emphasises that protection and enforcement of IP should be on a par with each country’s level of development, rejecting the one-size fits all approach. 246 Interacting with the recommendations contained in the Agenda will assist Libya in shaping an institutional and substantive IP framework that takes into

242 Enyinna S. Nwauche, ‘A Development Oriented Intellectual Property Regime for Africa’ (Paper presented at the 11 the General Assembly of the Council for the Development of Social Science Research for Africa (CODESRIA) in Maputo Mozambique 6-10 December 2005) 27. 243 Rami Olwan, above n 14, 60. 244 WIPO, Decision of the 2007 General Assembly, http://www.wipo.int/ip- development/en/agenda/wo_ga/wo_ga_34_summary.html 245 WIPO, Development Agenda for WIPO (2007) http://www.wipo.int/ip-development/en/agenda/ 246 Christopher May, the World Intellectual Property Organization: Resurgence and the Development Agenda, (London: Routledge, 2007) 78-79.

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consideration the level of development in the country. The interaction with WIPO’s Development Agenda can take the following forms:247 a. Advocate adoption of WIPO’s Development Agenda

From 1961, Brazil led initiatives to make the international IP system sensitive to the development needs of developing countries.248 In 2004 Brazil and Argentina, with the support of another fourteen developing countries249 submitted a proposal to the WIPO General Assembly that it adopt the Development Agenda as part of its work.250 Following its adoption in 2007, WIPO’s Development Agenda currently enjoys the support of 77 developing countries including China.251

The Development Agenda promotes, through Cluster (B) on norm-setting, developing countries’ rights to effectively participate in IP international norm setting. According to Cluster (B), international norm setting on IP should be: a. development-oriented252 and ‘supportive of the development goals agreed within the United Nations system, including those contained in the Millennium Declaration;253and b. participatory in that it takes into consideration the interests of all WIPO Member States and the viewpoints of accredited inter-governmental organizations (IGOs) and NGOs.254

A fair and development-oriented international IP system should serve Libya’s best interests. Additionally, Libyan officials who participate in setting the norms of development oriented international IP system will gain experience, which will help to construct a pro-development domestic IP system. Therefore, Libya should be an active participant in the Development Agenda with the rest of the developing countries.

247 Compare Net Netanel, ‘WIPO Development Agenda and Its Development Policy Context’ in Neil Weinstock Netanel, the Development Agenda: Global Intellectual Property and Developing Countries (Oxford University Press, 2009) 14-16. 248 Andréa Koury, above n 233, 764. 249 These countries are Bolivia, Cuba, the Dominican Republic, Ecuador, Iran, Kenya, Sierra Leone, South Africa, Tanzania and Venezuela, and subsequently also Egypt and Peru. Ibid, footnote 779 250 WIPO, WIPO Development Agenda: Background (2004-2007), http://www.wipo.int/ip- development/en/agenda/background.html 251 Lihong Li, ‘Localizing WIPO’s Legislative Assistance: Lessons from China’s Experience with the TRIPs Agreement’ in Jeremy De Beer, Implementing WIPO’s Development Agenda, above n 240, 111. 252 Rec 15. 253 Rec 22. 254 Rec 15.

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b. Embrace the Recommendations of the Development Agenda

While the Development Agenda is intended to - internationally- integrate the development dimension into WIPO’s activities, 255 some of the recommendations therein could be translated into national policy measures to render national IP systems pro-development. A careful look at the recommendations of the Development Agenda reveals that the following recommendations can be adopted into Libya’s national decision-making and norm-setting processes regarding IP:256

a) Promote norm-setting activities that contribute to the preservation of robust and accessible public domain.257

b) Make full use of the flexibilities contained in the international agreements.258

c) Facilitate access to knowledge to foster creativity and innovation.259

d) Utilise user rights towards development objectives such as education, public health and to foster local creativity and innovation.260

e) Include comprehensive provisions that promote pro-competitive IP licensing practices, which lead to fostering creativity, innovation and the transfer and dissemination of technology.261

f) Protect traditional knowledge and folklore.262

g) Explore the IP related policies and initiatives necessary to promote the transfer and dissemination of technology (for instance, best copyright practices to promote knowledge dissemination over the Internet).263

255 Compare Net Netanel, ‘WIPO Development Agenda and Its Development Policy Context’, above n 247, 2, in this context Netanel states that The Development Agenda by no means abandons the idea that intellectual property rights can fuel creativity, innovation, and development under some local conditions. But for the first time in WIPO’s history, it places the need for balance, flexibility, and a robust public domain on par with promoting IP protection in all WIPO matters affecting developing countries. 256Carolyn Deere, ‘Reforming Governance to Advance the WIPO Development Agenda’ in Jeremy De Beer, Implementing WIPO’s Development Agenda, above n 240, 51. 257 Rec 16 and 20. 258 Rec 14, 17 and 25. 259 Rec 19. 260 Rec 22. 261 Rec 7 and 34. 262 Rec 18. 263 Rec 25.

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h) Promote open collaborative projects such as FOSS and Human Genome Project;264

i) Develop and improve national IP institutional capacity with a view to making national IP institutions more efficient and promoting a fair balance between IP protection and the public interest.265

j) Approach IP enforcement in the context of broader societal interests and

especially development-oriented concerns with a view that ‘the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations’.266

Considering these recommendations as an integral part of Libya’s national policy on IP should lead to behavioural, institutional and substantive reforms that will contribute significantly to the country’s integration of the development dimension into IP policies.267 c. Making Use of Legislative and Technical Assistance from WIPO

The transplantation of foreign legal norms into local legal systems can be associated with many problems.268 Transplanting foreign IP norms is no exception.269 Laws are contextual in nature. They are affected by the cultural, social and economic conditions of each country. Therefore, norms and institutions which promote development in any given country may create an impediment to development in another country.270 Libyan policymakers should take note of this fact and aim to

264 Rec 36. 265 Rec 10. 266 Rec 45. 267 Compare Jeremy De Beer, ‘Defining WIPO’s Development Agenda’ in Jeremy De Beer, Implementing WIPO’s Development Agenda, above n 240, 22 and Xuan Li, A Conceptual and Methodological Framework for Impact Assessment under the WIPO Development Agenda, in Jeremy De Beer, Implementing WIPO’s Development Agenda (Cluster D), above n 240 42 268 Patrick Glenn, Legal Traditions of the World (New York: Oxford University Press, 3rd ed, 2007) 269. 269Lihong Li, ‘Localizing WIPO’s Legislative Assistance: Lessons from China’s Experience with the TRIPs Agreement’ in Jeremy De Beer, Implementing WIPO’s Development Agenda, above n 240, 109. 270 Graham Mayeda, ‘Appreciate the Difference: The Role of Different Domestic Norms in Law and Development Reform—Lessons from China and Japan’ (2006) McGill Law Journal, 559.

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tailor IP institutions, norms and administrative policies according to the dictates of the local context. The WIPO Development Agenda offers substantial assistance in this regard through its recommendations on technical and legislative assistance.

Technical and legislative assistance recommendations comprise more than 20% of the total recommendations of the WIPO Development Agenda (10 out of 45). If implemented properly, they would contribute to localising IP policies and bridging the gap between the international IP system and local developmental priorities.271

Recommendations 1 and 13 of the Development Agenda are the most important in terms of WIPO legislative and technical assistance. They state that:

WIPO technical [and legislative] assistance shall be, inter alia, development-oriented, demand-driven and transparent, taking into account the priorities and the special needs of developing countries, especially LDCs, as well as the different levels of development of Member States and activities should include time frames for completion’272

Libyan policymakers should make use of the technical and legislative assistance offered by WIPO to design IP institutions, policies, laws and regulations that are pro- development and suitable for domestic cultural, social and economic realities.273 As a start, technical and legislative assistance might be used to implement the recommendations listed in the previous section. For instance, Libyans should aim for technical and legislative assistance from WIPO which helps the country to a) make its copyright and patent offices and national research centres capable of working to facilitate A2K, technology transfer and local innovation; b) explore ways to implement international flexibilities into local laws; c) construct accessible and robust public domain; d) construct a national strategy on user rights for development purposes, particularly in relation to education, public health and the Internet; and e) consider alternative modalities of knowledge and cultural production such as open collaborative projects.

271 Lihong Li, ‘Localizing WIPO’s Legislative Assistance: Lessons from China’s Experience with the TRIPs Agreement’ in Jeremy De Beer, Implementing WIPO’s Development Agenda, above n 240, 107. 272 Rec 1 and 13. 273 Lihong Li, ‘Localizing WIPO’s Legislative Assistance: Lessons from China’s Experience with the TRIPs Agreement’ in Jeremy De Beer, Implementing WIPO’s Development Agenda, above n 240, 113.

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7.3.3.1.4 User rights

The overwhelming majority of developing countries implement international IP agreements with a rights-centric view. Domestic IP offices place almost an exclusive focus on the enforcement of rights without any adequate corresponding consideration for user rights.274 Policy directions in Libya revealed similar approach.

Libyan policymakers should abandon the rights-centric view of IP and perceive the IP system as one of dual objectives in which the rights of users are as important as those of IP holders. As discussed earlier this approach is more conducive to public interest and social justice considerations, particularly in light of the ever-expanding borders of the digital world.

As the country is in the process of drafting a development plan, there should be an adequate consideration of how the IP regime facilitate rather than impede development. Therefore, user rights should be approached in a way that promotes education (particularly, with regards to libraries, universities, research centres and public schools)275 and public health, and allows building on existing culture and inventions to promote local creativity and innovation.

As a developing country Libya is encouraged to utilise to the fullest extent possible any opportunity available to enact meaningful user rights recognised under international IP treaties.276 Accordingly, Libya’s bundle of user rights should not be, by any means, less than those granted to users in developed countries such as the US, Australia and the EU.

Based on the conclusions of Chapter 6 of this thesis, Libyan policymakers are encouraged to take the following steps in order to calibrate a pro-development user rights system:

Firstly, Libyan IP laws should adjust their baseline (preamble and introductory provisions) to recognise user rights as an integral part of the Libyan IP system rather than a mere exceptional departure from exclusive rights.277 This approach allows the

274 Ruth Okediji, ‘International Copyright’, above n 124, 30-31. 275 CIPR Report, Integrating IPRs and Development Policy, above Ch 4, n 211, 104. 276 Ruth Okediji, ‘International Copyright’, above n 124, 31. 277 Ironically, the TRIPs Agreement, which increased the international IP protection, has recognised user rights as an integral part of its regulation of IP. Article 7 of the TRIPs Agreement states that:

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provisions of the entire IP system to be interpreted according to the dictates of the public interest. For instance, subsequent uses or transformations of copyright or patented subject matter should be deemed either an infringement of the exclusive rights or an exercise of user rights bearing in mind that user rights are as important to innovation and creativity as exclusive rights.

Secondly, adopt a twin track approach by combining both the EU and US approaches in the regulation of user rights.278 This requires, on one hand, introducing a list of specific permitted uses to respond to long established public interest considerations in areas such as health, education and technology.279 On the other hand, it requires the introduction of an open-ended fair use right to create a built-in adaptability, providing users with a safe harbour whenever their uses of IP-protected subject matters are more conducive to the development process.280

‘The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge’ Emphasis added. Regardless of the practical implications of article 7 on the international IP system, the wording of the article clearly reveals that users and producers of intellectual goods are integral part of the IP system and that the protection and enforcement of IP laws should take into consideration their mutual advantage. Libyan IP system should adopt similar provisions. 278 Sam Ricketson refers to the existence of three approaches for the regulation of ‘exceptions and limitation’, US fair use model, closed list of permitted uses such as of the EU Directive and the Australian approach. For more see Sam Ricketson, WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the Digital Environment (Standing Committee on Copyright and Related Rights, Ninth Session Geneva, 2003) 67. 279 The New Libyan IP Law Project provided comprehensive lists of permitted uses of patented and copyright material. See footnote 231. It should be noted that the project adopted the long established exceptions to patent laws such as private and non-commercial use exception, experimental / scientific use exception, prior use exception foreign vessels, aircraft or land vehicles exception, regulatory review (‘Bolar’) exception and exhaustion of patent rights. See Christopher Garrison, 'Exceptions to Patent Rights in Developing Countries', above n 154. What is of interest is art. 12/5, which excludes from patent protection: Any other acts by third parties, provided that they shall not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties. The criteria stipulated in the previous section are adopted from article 30 of the TRIPs Agreement. They greatly resemble fair use provisions of US Copyright Law. As with regard to the section related to copyright in the New Libyan IP Project, it provided in article 24 a list of permitted uses (see footnote 231). However, it did not provide public or universities libraries with any permitted uses. Additionally, it lacks provisions regarding digital environment. For instance, it did not regulate transient copying or the interoperability of software programs. 280 For more on the benefits of fair use to US culture and economy see: Patry, above Ch 6 n 224, 8; Wendy J. Gordon and Daniel Bahls, 'The Public's Right to Fair Use: Amending Section 107 to Avoid the Fared Use Fallacy' (2007) Utah L. Rev. 619; Ian Hargreaves, Digital Opportunity: A Review of Intellectual Property and Growth (2011) 42 http://www.ipo.gov.uk/ipreview-finalreport.pdf; Leval, above Ch 6 n 252, 1136; Mary W. S. Wong, ‘Transformative’ User-Generated Content in Copyright Law: Infringing Derivative Works or Fair Use?’ (2008-2009) 11 Vand J. Ent & Tech. L. 1075; Ruth Okediji, ‘Toward an International Fair Use Doctrine’ (2000-2001) 39 Colum. J. Transnat'l L. 75.

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This approach would equip the Libyan IP system with sufficient flexibility to promote development and, at the same time, provide creators of knowledge products with the core benefits of a fair IP system.

7.3.3.1.5 Strengthen Domestic Competition Policy

It is widely accepted in IP scholarship that competition law and policy can assist in mitigating any negative effects of the restrictions on the use and re-use of knowledge products allowed under the exclusive rights of IP holders. This is because competition laws and policies promote openness, which lead to more competition in the provision of knowledge products and therefore, to development. 281 Keith E. Maskus and Mohamed Lahouel studied the relationship between IP and competition laws in the context of developing countries and demonstrated the positive implications of introducing competition laws for developing countries.282

Libya does not have any specific laws for the regulation of unfair competition.283 The current Patent and Copyright Laws do not contain provisions to deter rights holders from abusing their exclusive rights. This is an important area for reform, in which Libyan policymakers could promote pro-competitive IP licensing practices, particularly with a view to fostering creativity, innovation and the transfer and dissemination of technology.

It should be noted that fair use should be extended to paten as discussed earlier. For more on the potential benefits of introducing fair use in patent laws, see Strandburg ‘Patent Fair Use 2.0’, above Ch 6 n 270, and Maureen A. O'Rourke, ‘Toward a Doctrine of Fair Use in Patent Law’, above Ch n 269. It should be noted that open ended fair use right is not limited to US Copyright Law, some countries around the world have already implemented fair use provisions such as Philippines, Singapore and Israel some other countries are in the process of doing so such as Ireland. David Cameron, the British Prime Minister, when announcing the Review of IP and Growth said that: The founders of Google have said they could never have started their company in Britain. The service they provide depends on taking a snapshot of all the content on the Internet at any one time and they feel our copyright system is not as friendly to this sort of innovation as it is in the United States. Over there, they have what are called ‘fair use’ provisions, which some people believe gives companies more breathing space to create new products and services.’ Ian Hargreaves, Digital Opportunity: A Review of Intellectual Property and Growth, above Ch 6 n 256, 42-45. 281 See Chapter 5. 282 Keith E. Maskus and Mohamed Lahouel, ‘Competition Policy and Intellectual Property Rights in Developing Countries’ (2000) The World Economy Volume 23, Issue 4, pages 595–611. 283 The only regulation for unfair competition in contained in the recent Libyan Commercial Code no 23/2010. This Law provided general provisions on unfair competition (articles 1282 to 1306). The Law allocated only one article for unfair competition in the field of IP (art 1286). A quick read of the latter article reveals that it is focused only on the rights of IP holders and did not regulate any compulsory licences.

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The current international IP framework (particularly, art 5 of the Paris Convention, art 11bis and 13 of the Berne Convention and articles 8 and 40 of the TRIPS Agreement) offers adequate flexibility to address the abuse of IP monopolies and tailor domestic competition policy according to national priorities.

Libya should have a specific law on unfair competition that takes into consideration the deterrence of anti-competitive practices far more broadly than do either the US or EU. 284 As a first step, the potential law should broadly define anti-competitive practices to include: delay in exploitation of IP subject matters, refusal to licence others to use the subject matter on reasonable commercial terms, selling IP subject matter at excessively high prices, preferential treatment of agents, failure to supply the local market and cases which adversely affect the free competition such as restricting the fair transfer of technology.285

7.3.3.1.6 Embrace the Internet as a Catalyst for Creativity

The advances of computer and Internet technologies have contributed tremendously to unprecedented access to and creation of knowledge and cultural products. We have also seen that IP, if implemented rigidly, may stunt the flourishing of knowledge and cultural production. IP laws in Libya, particularly copyright law, should be designed to promote the kind of creativity and innovation offered by the Internet rather than restricting them with prohibitions and penalties.

Accordingly, copyright laws in Libya should be designed to provide users with rights to realise the potential of the Internet in research and online education as well as in reworking knowledge and culture online.286 As a start, policymakers in the country may take into consideration the advice offered by pro-development commissions and IP scholars to delay or restrict, as much as possible, any introduction of TPMs and DRM provisions in Libyan copyright law, think very carefully before joining the

284 Compare Net Netanel, WIPO Development Agenda and Its Development Policy Context in Neil Weinstock Netanel, the Development Agenda: Global Intellectual Property and Developing Countries, above n 247, 16; P. Bernt Hugenholtz and Ruth L. Okediji, ‘Conceiving an International Instrument on Limitations and Exceptions to Copyright’, above n 136,32. 285 Net Netanel, ‘WIPO Development Agenda and Its Development Policy Context’ in Neil Weinstock Netanel, the Development Agenda: Global Intellectual Property and Developing Countries, above n 247, 16. 286 UNCTAD-ICTSD, UNCTAD-ICTSD Project on IPRs and Sustainable Development, Intellectual Property Rights: Implications for Development (2003) 131.

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WIPO Internet Treaties, and not import the US DMCA or the EU Database Directive models.287

If embraced as a channel and a tool for knowledge access and creation, the Internet will reduce the costs and efforts for pursuing an effective development process. It is imperative, then, to design Libyan IP laws to recognise the Internet in this way rather than perceiving it as a channel for illicit copying.288

7.3.3.1.7 Localising the Flexibilities of the International IP System

The international multilateral IP framework is structured to set minimum standards for IP protection. The translation of these minimum standards into laws is left to the discretion of contracting parties. The main international IP agreements, such as Berne and Paris Conventions, offer a considerable degree of flexibility to member states in how they specifically address the scope of IP protection, the limits of IP holders’ rights and the range of user rights.289

Making use of the flexibilities provided under the international IP system is of significant importance for developing countries in tailoring their IP laws pursuant to domestic needs. However, it has been reported that many developing countries have not made full use of these flexibilities, but offered greater protection that goes beyond the minimum international standards, particularly in the field of copyright.290

287Ibid 134. CIPR Report, Integrating Intellectual Property Rights and Development Policy, above Ch 4 n 211, 109; Margaret Chon, ‘Intellectual Property and the Development Divide’, above Ch 6 n 217, 2857; Ruth Okediji, ‘Copyright and Public Welfare in Global Perspective’ (1999) Indiana Journal of Global Legal Studies: Vol. 7,177; Ruth Okediji, above 124, 32; T. Pistorius, ‘Developing Countries and Copyright in the Information Age - The Functional Equivalent Implementation of the WCT’ (2006) Potchefstroom Electronic Law Journal, 157, available online at: http://www.saflii.org/za/journals/PER/2006/11.html 288 Compare James Boyle, , above Ch 6 n 16, 10. 289 For general overview on the built-in flexibility in international agreements see: Laurence R. Helfer, 'Flexibility in International Agreements’ in Jeffrey Dunoff & Mark A. Pollack, Interdisciplinary Perspectives on International Law and International Relations (Cambridge University Press, 2013) pp. 175-196. For more details on the latitude offered for member states under international IP treaties see Graeme B. Dinwoodie, ‘The International Intellectual Property System: Treaties, Norms, National Courts, and Private Ordering’ in Daniel Gervais, Intellectual Property, Trade and Development: Strategies to Optimize Economic Development in a TRIPS Plus Era (Oxford Univ. Press, 2007) 62; Daniel Gervais, Intellectual Property, ‘Trade & Development: The State of Play’ (2005) Fordham Law Review, 526, P. Bernt Hugenholtz and Ruth L. Okediji, above n 126, 16; Brewster, Rachel, ‘The Surprising Benefits to Developing Countries of Linking International Trade and Intellectual Property’ (2011-2012) 12 Chi. J. Int'l L. 1. 290 Consumer International (CI) reviewed the copyright laws of Bhutan, Cambodia, China, India, Indonesia, Kazakhstan, Malaysia, Mongolia, Papua New Guinea, the Philippines and Thailand. CI study found that these countries ‘have not taken advantage of all the flexibilities available to them in the international treaties they signed and in fact, provide copyright owners far more rights than they

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Libyan policymakers are encouraged to make fullest use of the flexibilities offered by the international agreements that Libya has ratified. For instance, the conditions of patentability, the scope of works of authorship, the rights should be granted to IP holders and their limits and the basis for granting compulsory licensing should not be copied from the laws of other countries unless careful examination has been conducted to test their applicability to the local context. Libyan policymakers should also make use of certain flexibilities especially provided for developing countries such as the Berne Convention Appendix (the Appendix).291

A particular flexibility unique to the Libyan situation is the protection term for copyright works. As discussed above, Libyan Copyright Law protects copyright for the life of author plus twenty five years. Libya is entitled to use the flexibility provided under art 7/7 of the Berne Convention to keep the copyright term as it is. Any potential copyright law should make use of this flexibility.

The ability to rely on the flexibilities provided by international IP treaties could be undermined by the detailed TRIPs-plus provisions of the kind which are usually contained in FTAs with developed countries such as the EU and US. In any potential FTAs with developed countries, Libya should make all possible efforts to resist the inclusion of any provisions on IP that result in diluting its capacity to utilise flexibilities to localise the international IP standards.292 An ideal case in point is the example of the 2012 EU Peru-Columbia FTA.293

Art 197/1 of the EU Peru-Columbia FTA allows contracting parties to rely on the flexibilities available to them in any international instrument on IP.294 The current draft of the Libya-EU FTA does not contain a similar provision. Libya should

need to under the treaties they signed’, Consumers International, The statement on Provisional Committee on Proposals Related to A WIPO Development Agenda (2006), available at http://bit.ly/HOhBzv 291 P. Bernt Hugenholtz and Ruth L. Okediji, above n 126, 16. 292On similar advices for developing countries see Henning Grosse Ruse-Khan, ‘the International Law Relation between TRIPS and Subsequent TRIPS-Plus Free Trade Agreements: Towards Safeguarding TRIPS Flexibilities?’ (2010-2011) 18 J Intell Prop L. 325 and Enyinna S. Nwauche, above n 242, 25. 293 EU Peru-Columbia FTA (signed in June 2012) Full text available at: . 294 Article 197/1 of EU Peru-Columbia FTA states that: Having regard for the provisions of this Title, each Party may, in formulating or amending its laws and regulations, make use of the exceptions and flexibilities permitted by the multilateral intellectual property agreements, particularly when adopting measures necessary to protect public health and nutrition, and to guarantee access to medicines.

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negotiate the inclusion of a similar provision in the current draft or any potential FTA with a developed country in the future.

7.3.3.1.8 A2K as a National Policy Objective

Part of Chapter 6 demonstrated the compatibility of the A2K movement with the principles and objectives of Islamic Shari’a as well as its significant benefits in empowering citizens and promoting development.

Libya seems to lack any meaningful initiatives or policy measures to promote A2K. For instance, since 2004, the Economic and Social Surveillance has highlighted this gap (by reference to the EU Directive on Public Sector Information (PSI)) and its adverse effects on economic development. 295 Furthermore, the country lacks the policy instruments to provide access to publicly funded research.296

Despite the fact that Libya has historically borrowed its IP protection laws from Egypt, it did not learn from the Egyptian experience in promoting A2K. Egypt has adopted a wide range of policies, initiatives and measures that are closely related to A2K in general.297 Many government agencies and civil society organizations in Egypt promote A2K in various sectors such as education, ICT, culture and health.298

The Libyan government, government departments, educational intuitions and civil society organisations should raise the public’s awareness regarding the importance of A2K and should have policies and initiatives to use A2K mechanisms (such as OCL) to promote knowledge diffusion. This thesis presented several recommendations in the previous chapter which leads to this end.

295General Secretary of Planning, Economic and Social Surveillance (2005) 41. 296 For instance, National Agency for Scientific Research (NASR), the governmental agency responsible for administering publically funded research, does not even mention OA as an efficient method for distributing research results and data, which was acquired to public funding. NASR, http://www.nasr.ly/nasr2012/index.php/researcher-support. 297See generally Nagla Rizk and Lea Shaver, Access to Knowledge in Egypt (Bloomsbury Academic, 2010). 298 Ahmed Abdel Latif refers to several examples of efforts in Egypt oriented towards promoting A2K. He states that: Among the many examples, we find high-profile initiatives by the Ministry of Communication and Information Technology (MCIT) in the area of e-education –– such as the computer for every student initiative, the IT clubs in the governorates –– and the annual Reading for All Festival sponsored by the First Lady of Egypt starting 1990. Ahmed Abdel Latif, ‘Egypt’s Role in the A2K Movement: An Analysis of Positions and Policies’ in Nagla Rizk and Lea Shaver, Access to Knowledge in Egypt, above n 297, 46.

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Specific areas of focus which need to be re-emphasised are: the administration of PSI and publicly funded research as well as the establishment of OA repositories. Libya should follow the lead of some developed countries and introduce specific policy instruments on OA regarding PSI and publicly funded research. 299 Additionally, policymakers in the country should explore ways to fund and establish OA repositories particularly for the benefit of researchers and universities students to help spur knowledge diffusion and harness the associated welfare gains.

7.3.3.1.9 Creative Takaful Fund

Sharing and cooperation (takaful) is widely regarded as an efficient modality of producing intellectual goods in the information, culture, education, computation, and communications sectors with positive welfare implications.300 Additionally, it has been suggested that sharing creative efforts to produce intellectual goods contributes to greater dissemination of knowledge and promotes distributive justice. The economic efficacy of sharing and cooperation along with their promotion of the dissemination of knowledge and distributive justice led us to establish their compatibility with the principles and objectives of Islamic Shari’a, the main source of law in Libya.

Several NGOs and initiatives have emerged worldwide which use the logic of open source as the basis of collaborative projects in areas beyond software development and encyclopedias. 301 These NGOs and initiatives aim to harness the fruits of

299 On the 22nd of February 2013 Obama’ Administration issued a ‘Memorandum for the Heads of Executive Departments and Agencies’ on ‘Increasing Access to the Results of Federally Funded Scientific Research’. The Memo recognised the importance of having OA policy for accelerating ‘scientific breakthroughs and innovation, promote entrepreneurship, and enhance economic growth and job creation’ and therefore, directed Federal agencies which invest in research and development ‘to have clear and coordinated policies for increasing… access [to publically funded research and digital date]. Whitehouse, Increasing Access to the Results of Federally Funded Scientific Researc (2013) Available online at: http://www.whitehouse.gov/sites/default/files/microsites/ostp/ostp_public_access_memo_2013.pdf 300 For detailed account on the welfare implications of sharing and cooperation, see Eric von Hippel, Democratizing Innovation above Ch 6 n 227, 9. 301NGOs include: The Open Knowledge Foundation, http://okfn.org and P2P Foundation, http://p2pfoundation.net/About_The_Foundation Initiatives include Tropical Disease Initiative, http://scienceblogs.com/commonknowledge/2009/04/22/tropical-disease-initiative-ke/ and Open Source Drug Discovery, http://www.osdd.net/ See generally V.C. Vivekanandan, ‘The Public–Private Dichotomy of Intellectual Property: Recommendations for the WIPO Development Agenda’ in Jeremy De Beer, Implementing WIPO’s Development Agenda, above n 240, 120.

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intellectual cooperation in areas as wide as drug production, 302 databases sampling,303 journalism304 and the showcasing, annotating and translating of public domain materials.305

Libyan policymakers are encouraged not only to invest in creating IPRs infrastructure but also to consider the design of an institution that capitalises on takaful to create and develop knowledge and cultural goods. It goes beyond the scope of this section to provide a detailed map for the creation and operation of the Creative Takaful Fund, but as a start the Fund should be established around the following considerations:

Firstly, to raise awareness among the public, particularly researchers and university students of the importance and efficacy of sharing and cooperation as modalities of knowledge and culture production in the digital age;

Secondly, to allocate budgets to start up new collaborative projects or participate in the development of existing ones. Areas which might be a focus of new national collaborative projects include scientific research, establishing databases, translating and/or showcasing public domain materials or even collaboratively draft laws using the Internet.

Finally, the IP policy of the Fund should not be based on locking up knowledge and culture but rather to help disseminate them through OCL such as GPL for software and CC for writings.

The support of open collaborative projects through the Creative Takaful Fund or other potential initiatives will not only help produce and develop valuable knowledge goods for Libyan society, it will also help citizens to embrace one of the central values in Islamic Shari’a that is cooperating for the common good as the Qur’an dictates ‘cooperate in righteousness and piety’.306

302 Ibid. 303 See for instance, Open Data Common, http://opendatacommons.org/guide/ 304 See for instance, the Data Journalism Handbook, http://datajournalismhandbook.org/# 305 See for instance, the Public Domain Review, http://publicdomainreview.org/about/ , Crowdcrafting, http://crowdcrafting.org and Open Humanities Award, http://openhumanitiesawards.org/ 306 The Quran (Sahih International trans) 5:2.

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7.3.3.2 National Innovation Strategy

Legislators introduce IP laws to promote innovation and thereby promote economic and social development. It is widely argued that introducing IP laws does not by itself lead to increased innovation and development, 307 rather IP should be considered as a part of a national innovation strategy (NIS) in which a country exploits IP to foster economic development in fields that are knowledge and IP intensive and ‘to be able to produce goods and services with a higher ideational content’. 308 Without that content, IP laws will lack the subject matter they are supposed to manage and protect.

Policymakers in Libya should understand that IP policies need to be accompanied by an NIS. Adopting an NIS means a) investing in education, training and technology acquisition; b) developing plans to access and use information and knowledge to build an industrial and technological base; c) increasing the local capacity to absorb technologies developed abroad.

Many countries around the world consider innovation as an essential component in their development plans309 because of its potential to improve existing industries, produce better products and services and increase the absorptive capacities of the domestic economy.310 What is the current status of innovation in Libya? And what needs to be done?

7.3.3.2.1 The State of Play

According to reports from the National Agency for Scientific Research (NASR), Libya does not have any national strategy regarding science, technology and innovation.311 Furthermore, there is a significant lack of awareness among Libyan

307 Park and Lippoldt, above n 183, 29. 308 Daniel J. Gervais, 'Intellectual Property, Trade & Development: The State of Play' (2005) 74 Fordham L. Rev, 524. 309 Economic Cooperation and Development (OECD), National Innovation Systems (OECD, 1997) Available online at: http://www.oecd.org/science/inno/2101733.pdf 310 Australian Government, Powering Ideas: An Innovation Agenda for the 21st Century (2009) 13- 19, available online at: http://www.innovation.gov.au/Innovation/Policy/Documents/PoweringIdeas.pdf 311 National Agency for Scientific Research (NASR), Study on the Development of National Innovation System (NIS) for Libya (2012) 17-18 (on file with author); NASR, Internal Assessment Report of NASR and its Affiliated Research Centres (2011) 24 (on file with author).

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policymakers of the importance of innovation in promoting socio-economic 312 development.

Libya has a deficient scientific and industrial base. 313 The total expenditure on research and development is estimated at 0.02% of the country’s GDP.314 The Global Competitiveness Report (GCR) of 2013 placed the country in last position in terms of certain factors which affect innovation such as quality of education, research institutions and technological readiness.315 In a survey that included 144 countries around the world, Libya occupied the following positions:316

 Quality of overall infrastructure 128/144

 Technological readiness 110/144

 Higher education and training 103/144

 Quality of the education system 142/144

 Availability of research and training services 143/144

 Quality of scientific research institutions 122/144

 Company spending on R&D 138/144

 University-industry collaboration in R&D 133/144

 Availability of scientists and engineers 118/144

 PCT patents, applications/million 75/144

312 Ibid 32. 313 The World Bank, which provides, inter alia, indicators for the strength of the industrial base of the overwhelming majority of countries around the world, did not provide data by which one can properly assess Libya’s industrial and technological base from a relatively reliable source. For instance, relevant indicators such as R&D expenditure, patent and trademark applications, while provided in relation to neighbouring Tunisia and Egypt, they were not provided for Libya. World Bank Data, http://data.worldbank.org/indicator. Additionally, Libya is not placed among 145 countries which are listed on World Bank’s Knowledge Economy Index (KEI), http://info.worldbank.org/etools/kam2/KAM_page5.asp#c54 314 NASR, Study on the Development of NIS, above n 311, 15. According to other report the total expenditure from 2003 to 2010 was 428 Million Libyan Dinars ($330 Million), NASR, Internal Assessment Report, above n 311, 27. 315 World Economic Forum, The Global Competitiveness Report (2012–2013) 7. Available online at http://www3.weforum.org/docs/WEF_GlobalCompetitivenessReport_2012-13.pdf 316 Ibid 234-235.

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 Capacity for innovation 123/144.317

These figures confirm an earlier report on the competitiveness of the Libyan economy co-authored by Harvard economist Michael Porter, which attributed the weakness of Libya’s innovation capabilities to deficiencies in educational and research infrastructure, low attractiveness for FDI and technology transfer and limited availability of information and communication technologies (ICT).318

Despite all the above-mentioned difficulties, Libya has the required resources to improve its industrial and technological base and its overall innovation capabilities. The country enjoys:

 immense natural resources (the largest proven oils reserves in Africa and top five natural gas reserves);319

 ample foreign exchange reserves (Libya is ranked among the top 25);320

 a relatively small and young population (population 6.5 million 67% of which are under 35 years of age);321

 a strategic location: 2000 kms of coastline that is close to most of the developed countries in Europe; and

 positive change in political settings: Libya has changed from a dictatorship to a constitutional democracy with the required freedom for innovation to flourish.322

317 Global Innovation Index of 2012 surveyed 141 countries around the world. Libya was not among them. INSEAD and WIPO, Global Innovation Index 2012 Edition, available online at http://www.globalinnovationindex.org/gii/GII%202012%20PPT.pdf 318 Michael Porte and Daniel Yergin, above n 233, 22-24. 319 US. Energy Information Administration (EIA), Independent Statistics and Analysis: Libya, 2012, available online at: http://www.eia.gov/countries/cab.cfm?fips=LY 320 http://www.indexmundi.com/g/r.aspx?c=ly&v=144 321 General Authority of Information, Statistics Book, (2009), available online at: http://www.gia.gov.ly/includes/FCKeditor/upload/pdf/kt2009.pdf 322 Ezieddin Elmahjub, above n 71. Before 2011 Libya ranked in the lowest positions in terms of indicators related to human rights and freedom. For instance, according to Freedom House, Libya ranked among the worst in the world in terms of basic human rights and freedoms. On a scale of 0 to 7 (with 0 representing weakest and 7 representing strongest performance), Libya ranked 1.17 in civil liberties; 0.56 in accountability and public voice; 1.12 in rule of law and 0.19 in anticorruption and transparency. Freedom House, Countries at the Crossroads, Libya, http://www.freedomhouse.org/report/countries-crossroads-2005/libya

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The experience of diverse countries around the world such as Singapore, Ireland, Malaysia and the United Arab Emirates proves that being unified around clear vision for the future can help improve living standards and overall socioeconomic development.323 Libya needs a similar vision, part of which should be to mobilise its available resources towards adopting an NIS.324

7.3.3.2.2 Adopting an NIS

This section does not seek to introduce a comprehensive NIS.325 However, it aims to draw attention to the importance of such a strategy along with a development- oriented IP policy for the construction of knowledge, a technological base and overall socioeconomic development. Based on reviews of the relevant literature, the most important components of an NIS include: a. Invest in Human Capital

Investing in human capital essentially means investing in education and training. Libya does indeed invest in education and training.326 However, such investment does not pay off according to the GCR indicators mentioned above.327 It is essential to reconfigure the settings of training and educational programs at primary, secondary and university levels with the aim of preparing a national workforce that is able to build and operate a knowledge based economy.328

323 Michael Porte and Daniel Yergin, Competitiveness of Libya, above n 233, 9. 324 NASR, Study on the Development of NIS, above n 311, 18. 325 For more on the history, development and components of national innovation systems of different countries see Stephen Feinson, ‘National Innovation Systems Overview and Country Cases’ in Knowledge Flows and Knowledge Collectives: Understanding The Role of Science and Technology Policies in Development, (Rockefeller Foundation, 2003) 14 and 23; Australian Business Foundation, National Innovation Systems: Finland, Sweden and Australia compared (2005) 4. Available online at: http://ict-industry-reports.com/wp-content/uploads/sites/4/2009/02/2005-national-innovation-systems- compared-sweden-finland-australia-abf-nov-2005.pdf; OECD, National Innovation Systems, above n 309, 9; European Commission: Regional Agency for Technology and Innovation (ARTI), the Research and Innovation System in Egypt (2008). Available online at: http://www.arti.puglia.it/fileadmin/user_files/download/Egitto_def.pdf 326 Ministry of Education, Statistics on Primary Education (2013). Available online at: http://www.edu.gov.ly/statistics-numbers/86-arabic/issued-by-the-ministry/2866-.html 327 See p330. 328Michael Porte and Daniel Yergin, Competitiveness of Libya, above 233, 28; Stephen Feinson, National Innovation Systems Overview and Country Cases, above n 325, 25, in this context, Joseph Stiglitz argues that in order to succeed in knowledge based economy, it is not enough to invest in basic skills, which result from traditional educational processes. What is equally important is to invest in developing creativity and higher order cognitive skills as well as in training in science and technology. Stiglitz, Joseph, ‘Public Policy for a Knowledge Economy’ (London: Remarks at the

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Special consideration should be given to areas that will increase the absorptive capacity of the Libyan economy and promote local industries. These areas include management and law (including IP law) and sciences such as engineering, biology, chemistry, physics and IT.329 b. Reconstruct the National Research Infrastructure

Two studies conducted by NASR revealed severe deficiencies in the research infrastructure in Libya and recommended a gradual increase in spending on research from the current 0.02 % to 3.5% by 2030.330 Investing in research infrastructure involves developing the institutional capacity, facilities and services to help researchers carry out organised research across all areas relevant to strengthening the technological and industrial base.331 For instance, the Libyan government could (a) introduce schemes to promote research and development in universities and promote collaboration with industry and (b) create specialised research centres near major universities to learn about and reverse engineer certain technologies such as computers software, pharmaceuticals, biotechnology and communications.332 c. Revolutionise the ICT Sector

An efficient ICT infrastructure can effectively promote an inclusive development process.333 It enables effective circulation of knowledge and information, promotes good governance and facilitates access to, development and operation of different sectors of the economy such as health, education and industry.334 The Libyan ICT sector does not seem to be sufficiently developed to lead the country to an inclusive

Department for Trade and Industry and Center for Economic Policy, 1999) 21 , available online at: http://akgul.bilkent.edu.tr/BT-BE/knowledge-economy.pdf 329Daniel J. Gervais, above n 308, 532. 330 NASR, Internal Assessment Report, above n 311, 22; NASR, Study on the Development of NIS, above n 311, 25. 331 Final Report of the National Infrastructure Taskforce (Canberra: Department of Education,. Science and Training, 2004) 5. 332 OECD, National Innovation Systems, above n 309, 23, in this report ODEC considered the public research infrastructure and its links to local industries as ‘one of the most important national assets for supporting innovation’ p18 for similar recommendation see Australian Government, Powering Ideas, above n 310, 15. 333 UNCTAD, the Information Economy Report (2012) 22. 334 UNCTAD, Measuring the Impacts of Information and Communication Technology for Development, United (Nations publication, 2011,New York and Geneva) 1.

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development process.335 Consequently, it has been recommended that Libya should consider radical reform and development of its ICT sector.336 This could include providing fast and widely available Internet access through broadband and fibre optic networks and localising best practices on the use of software for development.337 d. Acquiring Knowledge Developed Abroad

One of the most important sources for strengthening the local industrial and technological base is the integration of knowledge developed abroad. Libya’s developed neighbours, namely European countries, are potentially a good source of valuable knowledge. There are different ways in which foreign knowledge may be integrated into the local economy, including technology transfer based FDI, imitation of foreign capital goods and licensing of foreign IP. The government can influence knowledge integration through different mechanisms such as incentivising FDI, foreign licensing regulations or purchasing foreign technologies for public enterprises.338 e. Support Innovation-based Incubators

Innovation incubators are places where entrepreneurs find support to develop innovative ideas. 339 As part of public support of small and medium enterprises (SMEs),340 the Libyan Government could create centres to assist entrepreneurs to start up technology-based firms.341 By way of example, the Malaysian experience in supporting technology-based incubators shows that they are worthy of high public

335 See for instance, Hamdy Amr, Survey of ICT and Education in Africa: Libya Country Report (World Bank, 2007) 2. 336 Michael Porte and Daniel Yergin, Competitiveness of Libya, above 233, 32. 337 UNCTAD, the Information Economy Report above n 333, 107. 338 Stephen Feinson, National Innovation Systems Overview and Country Cases, above n 325, 23; Daniel J. Gervais, above n 308, 532 and 534. 339 European Business and Innovation Centre Network, The Smart Guide to Innovation Based Incubators (2010) 5 et seq, available online at: http://ec.europa.eu/regional_policy/sources/docoffic/2007/working/innovation_incubator.pdf 340 Since 2007, Libyan Government lunched national program to support SMEs (Under Prime Minister’ decision 845/2007). 341 Compare, NASR, Study on the Development of NIS, above n 311, 23 and Muhammed Al-Asswad, Innovation Incubators: the Future of Development Startsarts from SMEs (2007) Libya Forum, available online at: http://www.libyaforum.org/archive/index.php?option=com_content&task=view&id=3992&Itemid=1

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policy consideration.342 The following figure shows the type of support entrepreneurs could obtain through incubators.

Figure 1: Incubation Process. 343

f. Patent Mining

Patent documents provide detailed instructions on how to manufacture millions of products. They can be valuable sources for invigorating the local industrial and technological base through direct application of expired patents or reverse engineering of existing patents. Patents are aggregated in databases, some of which are freely available online. 344 There should be a public policy oriented towards raising the awareness of local enterprises with product development abilities to capitalise and make use of these patent databases.345

342 Mohd Ghazali Mohd ‘Building an innovation-based economy: The Malaysian technology business incubator experience’ (2001) Journal of Change Management, 177, 343 European Business and Innovation Centre Network, above n 339, 6. 344 See for instance, Google, Search Patent, https://www.google.com/?tbm=pts, for more on this with see Nizar Ghoula et all, ‘Supporting Patent Mining by using Ontology-based Semantic Annotations’ (2007 IEEE/WIC/ACM International Conference on Web Intelligence) Available online at: http://ieeexplore.ieee.org/stamp/stamp.jsp?tp=&arnumber=4427129&tag=1 345 Daniel J. Gervais, above n 308, 534.

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g. Promote Knowledge Flow and Networking

Knowledge flows, and interactions among people, enterprises and institutions are keys to a successful NIS.346 The Libyan Government should introduce policies to support flow of knowledge and interaction among these actors. For instance, policies which aim at improving collaboration among individuals, universities, research centres and industry are most valuable in this context.347 A number of framework policies can be recommended. These include tax incentives, financing, IP (such as those polices recommended in this thesis) and programs that aim to raise awareness on the importance of exchanging ideas in promoting innovation.348

The following figure illustrates the components of NIS and their role with a supportive IP framework in strengthening domestic technological and industrial base and actualising development.

Figure 2: Knowledge Flow and Networking (Source: prepared by author)

346 For instance, it has been found in Japan that interaction and knowledge diffusion within society have greater impact on productivity than direct R&D expenditures in the period 1970-93, OECD, National Innovation Systems, above n 309, 26. 347 Ibid, 7 and Australian Government, Powering Ideas, above n 310, 18. 348 OECD, National Innovation Systems, above n 309, 13; NASR, Study on the Development of NIS, above n 311, 23.

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h. Institutional Structure to Manage the NIS

Implementing a successful NIS requires the allocation of financial resources and the coordination of different sectors within society. To ensure high levels of integrity and efficiency, the NIS should be administered by a National Innovation Council (NIC). The NIC should be headed by the office of the Prime Minister (PM) and open to the membership of selected members of parliament (MPs) in order to ensure the broadest impact on the key players in the NIS (ministries, universities and research centres, enterprises) and rapid adaption of required laws and schemes.349 Figure 3 illustrates the institutional structure for management of the NIS.

Figure 3: Institutional Structure to Manage NIS (Source: prepared by author).

349 Compare, Report on Committee, 19, the Tenth Malaysian Plan for 2011 to 2015 stressed the importance of implementing NIS and committed to undertake a comprehensive institutional reform to create supportive environment for the NIS. For more see Economic Planning Unit, Prime Minister's Department, Tenth Malaysia Plan 2011-2015 (2010) 80 to 86, http://www.undp.org.my/files/editor_files/files/reports%20and%20publications/RMK10_Eds.pdf

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7.4 Conclusion

Agreement about the need to comprehensively reform the Libyan IP system, combined with the existence of serious and long term development plans for Libya, provide policymakers with a historic opportunity to design a development-oriented and Shari’a-friendly IP system. What is required is a change in the mindset of current policymaking, which rests on unproven assumptions, mistakenly linking strong IP protection to increased development. As an alternative, specific policy measures should be implemented, dedicated to designing an IP system that considers Libya’s stage of development along with a national policy to foster the country’s industrial and technological base and its overall innovation capabilities.

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Chapter 8

Conclusions and Future Work

Islam is one of the largest faith systems in the world. Its sources and objectives continue to be relevant to law and culture in many countries worldwide. The sources, objectives and principles of Islamic Shari’a can be used to relate concepts shaped by social, legal and scientific developments to societies where Islam influences culture and law making. Both the Qur’an and the Sunnah, along with their juristic interpretations and applications, provide guidance and principles that are relevant to regulating modern societies. Mechanisms such as the notion of maslaha mursala and the objectives of Shari’a that call for the preservation of religion, life, mind, lineage and wealth can operate as a normative framework for contemporary law and policymaking. These mechanisms guide theorists, lawmakers and policymakers in responding to the challenges presented by modern realities, as they endeavor to formulate and implement strategies to promote progress, development and the overall public interest.

Intellectual property is among the most important of legal constructs in modern societies. It relates to the management and regulation of the founding blocks of the information society, namely, innovation and creativity. Hence, this thesis has sought to define the relationship between Islamic Shari’a and IP and understand how Islamic Shari’a might interact with and influence the theory and practice of IP. In addressing this question, the thesis has addressed a range of discrete but interrelated subjects, including:

. how Islamic Shari’a perceives theoretical notions of ownership over ideas and expressions;

. Islamic Shari’a’s interaction with the dominant IP regulatory systems and policymaking at the international level;

. designing a normative framework to integrate IP into Islamic Shari’a;

. the practical implementation of a Shari’a-friendly IP system; and

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. the implementation of a Shari’a-friendly IP system in Libya as a developing and Islamic country.

This chapter outlines the main findings of this thesis and considers the future work that is required to build upon and invigorate those findings.

8.1 Re-directing the Path for Research on IP and Islamic Shari’a

This thesis builds upon the existing literature on the relationship between IP and Islamic Shari’a. It is not sufficient to merely establish that Islamic Shari’a recognises the concept of the ownership of ideas, nor to justify certain aspects of the currently dominant IP system according to Islamic Shari’a. This thesis has sought to establish a more holistic approach by examining Islamic Shari’a’s views of the overall structure and operation of the currently dominant system of IP regulation and policymaking, and how Islamic Shari’a can contribute to designing IP laws and policies which assist in promoting welfare in Islamic countries and beyond. Moreover, this thesis has sought to identify themes and concepts in international IP scholarship and practical policies which intersect with Islamic Shari’a’s principles on the ownership and management of knowledge.

8.2 Islamic Shari’a and the Theory of IP

The findings of this thesis support the published research on IP and Islamic Shari’a in terms of Shari’a’s acceptance of ownership over ideas. Principles derived from the Qur’an and the Sunnah provide support for the recognition and protection of IP in ideas and expressions. Among these are the Islamic definition of property (mulk), the Islamic conception of labour and Shari’a’s principles on encouraging productivity and prohibiting ‘free-riding’. The main sources of Islamic Shari’a and leading trends in Islamic jurisprudential scholarship are consistent with the general theme on which Western theories of IP are based.

There are at least three points of alignment between Islamic Shari’a and Western theories of IP.

Firstly, Islamic Shari’a is consistent with the Lockean justification of IP. Both the Islamic concept of mubah and the Western concept of commons have similar features and can be extended to the stock of public domain information from which

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individual creators draw ideas for artistic and innovative productions. Notions in Islamic Shari’a, particularly the notion of ihya al-mawat, recognise private ownership over ideas and expressions created as a result of productive efforts (aml) that add value to resources held in common (mubah).

Secondly, it is possible to infer from the Islamic theory of labour a utilitarian justification for IP. As Ibn Khaldun has noted, respect for the fruits of labour leads to the promotion of welfare in societies, while the lack of respect for those fruits leads to the undermining of a society’s progress and development. This theory aligns with the utilitarian justification of IP in Western legal theory.

Thirdly, the main sources of Islamic Shari’a support the understanding that private ownership of assets is a reflection of an inherent human instinct. In this respect Islamic Shari’a is in alignment with the justification of IP based on Hegel’s personality theory, as articulated by IP scholars such as William Fisher and Justin Hughes.

8.3 Islamic Shari’a and the Currently Dominant IP System

As shown in Chapter 2, the sources and objectives of Islamic Shari’a operate to achieve the ultimate public interest. Chapter 4 showed that the modern concept of development can be used as practical scale to measure the public interest. Development measures such as access to medicines and education, and economic growth can be used to determine the extent to which Islamic Shari’a’s objectives in promoting life, mind and wealth are met. The currently dominant IP systems, as manifested in the main international treaties and the IP provisions in FTAs, are insensitive to the development needs of less affluent nations and, therefore, do not promote the public interest from the perspective of the objectives of Islamic Shari’a. Four main premises were advanced in support of this argument:

(1) The currently dominant IP system emerged and developed in the West and largely reflects the legal traditions and policies of Western nations. Other local concepts of ownership and management of knowledge, including those of Islamic Shari’a, were not deliberately and systematically considered in the development of the existing IP systems. Therefore, it comes as no surprise that the dominant IP system fails to take into consideration Islamic Shari’a’s

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philosophy of ownership, its limitations on property rights, and its principles on management of knowledge and social justice.

(2) Developed countries established their industrial and technological base in the absence of the kind of IP protection found in current IP systems, particularly as laid down in the TRIPs Agreement and the IP provisions in various FTAs. In fact, strong IP protection may be seen to be the result of a well-developed industrial and technological base, rather than a means of achieving it. Therefore, it seems to be counterintuitive to argue that the current IP system will promote development and actualise public interest in accordance with the principles of Islamic Shari’a.

(3) The dominant IP system does not meet the parameters for implementing maslaha mursala, a secondary source of Islamic Shari’a which incorporates emerging issues into Islamic Shari’a provided that they promote the public interest. Applying modern definitions of development as a measurement for the implementation of maslaha mursala, it was found that the current IP system does not promote development and therefore cannot be adopted into Islamic Shari’a using maslaha mursala.

(4) The current IP system does not advance Islamic Shari’a’s objectives in promoting life, mind and wealth. These objectives are linked to essential development factors such as access to medicine (life), access to education (mind) and economic growth (wealth). The currently dominant IP system is negatively correlated to these development factors or, at best, neutral in relation to them. Therefore, it is not aligned with the main objectives of Islamic Shari’a.

8.4 A Shari’a-friendly IP System

Having found the currently dominant IP system to be incompatible with the Islamic perspective on the public interest, the thesis proceeded to analyse the sources of Islamic Shari’a in order to design a Shari’a-friendly IP system. It is found that it would be more consistent with Islamic Shari’a to go beyond the incentive-based justifications of IP. An examination of the sources of Islamic Shari’a and Islamic jurisprudence identified five principles that can assist towards this end. These

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principles operate as a normative framework for integrating IP into Islamic Shari’a. The principles of stewardship (khilafa), non-concentration of wealth, social justice, abuse of rights and dissemination of knowledge contribute to:

a) redefining the scope of ownership entitlements under IP laws (stewardship);

b) reducing the concentration of private power in the hands of IP holders (non- concentration principle);

c) ensuring the empowerment and inclusion of users of knowledge and culture (social justice);

d) imposing adequate limitations when the IP rights impinge on third parties’ interests (doctrine of abuse of right);

e) encouraging the dissemination of knowledge (principles of dissemination of knowledge).

Putting these principles into an IP reform context would essentially mean:

 recognising users’ rights in IP laws and policymaking;

 redefining the scope of the exclusive rights of IP owners;

 allowing for wider dissemination of knowledge and cultural products; and

 promoting new modalities of knowledge and cultural production based on sharing, cooperation and openness.

Islamic Shari’a does not specifically inform us how to reflect those broad principles into implementable policy measures. Consequently, international IP scholarship has been consulted in developing proposals for legislative and policy reforms that best suit the sources, objectives and principles of Islamic Shari’a. The writings of prominent scholars, such as Lawrence Lessig, Yochai Benkler, Jessica Litman, James Boyle, Margaret Chon, Neil Netanel, Peter Drahos and Eric von Hippel intersect with Islamic Shari’a’s normative framework for a fair and efficient IP system. Like Islamic Shari’a, this scholarship is critical of the current IP system for contributing to an unfair concentration of knowledge resources and excessive restrictions on their use and re-use. It proposes policy measures and legislative

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reforms which can be implemented to promote openness, fair distribution and greater dissemination of knowledge and cultural resources.

Drawing on this body of international IP scholarship, it is proposed that an optimal IP system from an Islamic perspective will take into account the following policy measures:

(1) Expansion of the public domain through the adoption of policies that limit the expansion of IP rights into new domains and through legislative reforms to ensure that ideas and expressions pass into the public domain where they are free for all to use and build upon.

(2) Recognition of users’ rights to access and re-use culture and knowledge, by shifting the status of users ‘entitlements from exceptions to rights and empowering users with specific rights such as open-ended fair use.

(3) Consideration of alternative modalities of knowledge production that promote sharing, include all segments of society and promote greater dissemination of knowledge, through platforms such as Wikipedia and open source-driven production.

(4) Adoption of initiatives and policies that promote access to knowledge (A2K).

These policy measures are not only reflective of the principles of Islamic Shari’a considered in Chapter 5, but are also more responsive to maslaha mursala and the objectives of Islamic Shari’a which aim at promoting socio-economic development. The implementation of these measures will be likely to contribute to greater access to medicines and educational materials and to enhance economic growth.

8.5 Implementation of a Shari’a-friendly and Development- Oriented IP System in Libya

As an Islamic country and a developing country, Libya needs an IP system which is both Shari’a-friendly and development-oriented. This thesis provides guidance for Libyan policy and lawmakers as to how these two objectives may be fulfilled.

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Firstly, it establishes that a development-oriented IP system is in alignment with Islamic Shari’a which is the supreme source of legislation and culture. The promotion of development is a prerequisite to acceptance of an IP system under Islamic Shari’a.

Secondly, the thesis sets out specific recommendations for consideration by Libyan law and policymakers in designing and implementing a Shari’a friendly IP system. These recommendations include examples of proposals for specific legislative reforms, such as the recognition of user rights in IP laws, appropriate delineation of the scope of the exclusive rights of IP holders, and the introduction of competition laws. The recommendations also included broad policy measures such as adopting an evidence-based approach towards IP policy and regulation, adopting a “Libyan Development Agenda on IP”, embracing A2K as a national policy objective and establishing funds to promote alternative modalities of knowledge and cultural production.

Finally, the thesis demonstrates that reforms and policies for a Shari’a-friendly and development oriented IP system will not in themselves foster Libya’s industrial and technological bases. Rather, these reforms and policies should form part of a national development plan that adopts and implements a national innovation strategy (NIS). The NIS should be designed, inter alia, to promote investment in human capital and research infrastructure, revolutionise the ICT sector and establish an appropriate institutional structure to manage the NIS.

8.6 Future Work

The scope of the sources and jurisprudence of Islamic Shari’a is vast. It has been developed over 1,400 years and continues to develop to the present day. Among the sources and jurisprudence of Islamic Shari’a are rules, principles and philosophy which have relevance for the field of IP. As is the case with Islamic Shari’a, IP is a vast discipline. Its impact on the various aspects of our modern knowledge societies is evident. This led to the development of its traditional regimes (copyright, patent and trademarks) and the emergence of new regimes such as plant breeders’ rights and other sui generis forms of protection. Consequently, this study of the interaction between Islamic Shari’a and IP is by no means a comprehensive one. Much work remains to be done to refine its findings and build upon them.

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The thesis viewed the currently dominant IP system from the perspective of maslaha mursala and the objectives of Islamic Shari’a. These two concepts are well documented in Islamic scholarship and more work is needed to determine their impact on the current regulation and policymaking of IP. In addition, this thesis made a link between these two concepts, on the one hand, and IP and development on the other. More work is still needed to further clarify that link and determine its impact on future IP policies and law making in Islamic countries, all of which are developing countries. Another area for future research is the normative framework of a Shari’a-friendly IP system. This thesis has identified various principles derived from the sources and jurisprudence of Islamic Shari’a which can operate as a normative framework for designing IP laws that are compatible with Islamic Shari’a. However, the bundle of principles identified so far may not be exhaustive. Research on the sources and jurisprudence of Islamic Shari’a is needed to discern additional principles that are relevant to the regulation and management of knowledge and cultural production.

Moreover, the principles identified in this thesis are open to further development. For instance, additional research is warranted to identify concepts in the Islamic theory of social justice that can impact the regulation of IP. This thesis has highlighted that the theory of social justice in Shari’a can be invoked to support redistribution of opportunities to engage in the process of innovation and creativity by including and empowering the users of IP-protected materials. It has also pointed out that there are underlying principles in the Islamic theory of social justice that call for the promotion of sharing and collaboration as modalities for knowledge and cultural production. Further work is needed to refine, strengthen and relate this observation to IP law and policymaking. Additionally, more research in the sources and jurisprudence of Islamic Shari’a is needed to expand and polish Islamic Shari’a’s principle relating to knowledge dissemination and connect it to contemporary policies and practices such as A2K, Open Access (OA) and open content licensing.

The findings of this thesis on the interaction between Islamic Shari’a and IP are significant on at least two levels. They are of direct relevance to the reformation movements currently underway in Islamic countries that aim to use Islamic Shari’a as a normative framework to govern Muslim communities in the 21st century. Moreover, they can also be viewed in the context of the cross-cultural dialogue

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between Islam and the rest of the world. As reformation and cross-cultural dialogue are ongoing processes, the findings of this thesis will always be open for critique, refinement and modification.

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BIBLIOGRAPHY

Books

 Adelman, Irma, Theories of Economic Growth and Development (Stanford University Press1961).  Al-A'zami, Muhammad Mustafa, the History of the Qur'anic Text from Revelation to Compilation: A Comparative Study with the Old and New Testaments, (UK Islamic Academy).  Ballantyne, W. M, Commercial Law in the Arab Middle East: the Gulf States, (Lloyd’s of London Press Ltd, 1986).  Benkler, Yochai, The Wealth of Networks: How Social Production Transforms Markets and Freedom? (Yale University Press, 2006)  Benkler, Yochai, The Penguin and the Leviathan: How Cooperation Triumphs over Self-Interest (Random House, 2011).  Bennison, Amira K., The Great Caliphs: The Golden Age of the Abbasid Empire, (Yale University Press, 2009).  Boldrin, Michele and Levine David K, the Case against Intellectual Property, (University of Minnesota and UCLA, 2002).  Boyle, James, The Public Domain: Enclosing the Commons of the Mind (Yale University Press, 2010).  Boyle, James, Shamans, Software, and Spleens: Law and the Construction of the Information, (Harvard University Press, 1996).  Chang, J. H, ‘Under-explored Treasure Troves of Development Lessons: Lessons from the Histories of Small Rich European Countries’ in Monique Kremer et al, Good or Doing Better development policies in a globalizing world (Amsterdam University Press, 2009).  Chang, J. H, Kicking Away the Ladder: Development Policy in Historical Perspective, (Anthem Press, 2003).  Correa, Carlos, M, Intellectual Property Rights, the WTO and Developing Countries: The TRIPS Agreement and Policy Option (Zed Book, 2000).  Coulson N.J, A History of Islamic Law (Edinburgh University Press, 2005).

349

 Cypher James and Dietz, James, The Process of Economic Development (Routledge, 2009).  Deci, Edward L. and RyanIntrinsic, Richard M, Motivation and Self- Determination in Human Behavior (Plenum Press, 1985).  De Beer, Jeremy, Implementing WIPO’s Development Agenda (Wilfrid Laurier University Press, 2009).  Drahos, Peter and Braithwsite, John, Information Feudalism: Who Owns the Knowledge Economy? (Earthscan Publications, London, 2002).  Drahos, Peter and Mayne Ruth, Global Intellectual Property Rights: Knowledge, Access and Development (Oxfam, 2002).  Dutfield Graham and Suthersanen Uma, Global Intellectual Property Law (Edward Elgar, 2008).  El-Said, Muhammed, The Development of Intellectual Property Protection in the Arab World (Edwin Mellen Press, New York: 2008).  Fisher, William W, Promises to Keep: Technology, Law, and the Future of Entertainment (Stanford University Press, 2004).  Fitzgerald, Anne, Open Access Polices, Practice and Licensing (CRC SI 2009).  Fitzgerald, Anne and Fitzgerald, Brian Intellectual Property in Principle (Thomson, 2004).  Fitzgerald, Anne M., Hooper, Neale, & Foong, Cheryl, CC & Government Guide: Using Creative Commons 2.5 Australia Licences on Government Copyright Materials (QUT Faculty of Law, 2010).  Fitzgerald, Brian F., Fitzgerald, Anne M., Perry, Mark, Kiel-Chisholm, Scott D., Driscoll, Erin P., Thampapillai, Dilan, and Coates, Jessica M, Open Access to Knowledge (OAK): Creating a legal framework for copyright management of open access within the Australian academic and research sector (QUT Faculty of Law, 2006).  Glenn, Patrick, Legal Traditions of the World (New York: Oxford University Press 3rd ed , 2007).  Goldstein, Paul, International Copyright: Principles, Law, and Practice, (Oxford University Press, 2001).

350

 Gervais, Daniel, The TRIPS Agreement: Drafting History and Analysis (Sweet and Maxwell, 3rd ed, 2008).  Hamadani, Abbas, the Muhtasib as Guardian of Public Morality in the Medieval Islamic City (University of Wisconsin 2008).  Harri, Phil, an Introduction to Law (Cambridge University Press 2007).  Hegel, G.W.F, Philosophy of Right, translated by S.W Dyde Batoche (Books Kitchener, 2001).  Heinz, Halm, Fatimids and their Traditions of Learning (I. B. Tauris and Company, Limited in Association with the Institute of Ismaili Studies, 1997)  Hess, Charlotte and Ostrom Elinor, Understanding Knowledge as a Commons: From Theory to Practice (MIT Press, 2007).  Hippel, Eric von, Democratizing Innovation: The Evolving Phenomenon of User Innovation (MIT Press, 2005).  Hippel, Eric von, Sources of Innovation (Oxford University Press, 1988).  Hiroyuki, Odagiri Akira Goto, Atsushi Sunami, Richard R. Nelson, Intellectual Property Rights, Development and Catch-Up: an International comparative Study (Oxford University Press, 2010).  Ibn Majah, Sunan (English Translation by Nasiruddin Al-Khattab (Dārussalam, 2007)).  Idris, Kamil and Arai Hisamitsu, the Intellectual Property-conscious Nation: Mapping the Path from Developing to Developed ( WIPO, 2006)  Kamali, Muhammed, Principles of Islamic Jurisprudence (Pelanduk Publications, 1989)  Kariyawasam, Rohan, International Economic Law and the Digital Divide: A New Silk Road? (Book News Inc, 2007)  Krikoria,n Gaëlle and Kapczynski, Amy, Access to Knowledge in the Age of Intellectual Property (Zone Books New York, 2010)  Krohmal Benjamin, Prominent Innovation Prizes and Reward Programs (KEI, 2007)  Lessig, Lawrence, Future of Ideas: The Fate of the Commons in a Connected World (Random House, Incorporated, 2001)  Lessig, Lawrence, How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (Penguin Books, 2004);

351

 Litman , Jessica, Digital Copyright (Prometheus Books, 2001)  Maskus, Keith, Intellectual Property Rights in the Global Economy (Institute for International Economics, 2000)  Maslow, Abraham, Motivation and Personality (Haper & Brothers, 1954)  May, Christopher, The World Intellectual Property Organization: Resurgence and the Development Agenda, (London: Routledge, 2007)  Merges, Robert. P, Justifying Intellectual Property (Harvard University Press, 2011)  Midgley, James, Social Development: The Developmental Perspective in Social Welfare (Sage Publication Ltd, 1995)  Mirakhor, Abbas and Askari Hossein, Islam and the Path to Human and Economic Development (Palgrave Macmillan, 2010)  Morri, Christopher W, The Social Contract Theorists: Critical Essays on Hobbes, Locke, and Rousseau (Rowman & Littlefield, 1999)  Nafziger, Wayne, Economic Development, (Cambridge University Press 2005)  Netanel Neil, Copyright Paradox, (Oxford University Press, 2008).

 Ostrom, Elinor, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge University Press, 1990)  Patry, William, How to Fix Copyright (Oxford University Press, 2011)  Pawar, Manohar and Cox David, Social Development: Critical Themes and Perspectives ( Routledge, 2010)  Payne, Anthony and Phillips Nicola, Development (Polity Press, 2010)  Pink, Daniel H, Drive the Surprising Truth about What Motivates us (Penguin Group, 2009).  Price, David, the Development of Intellectual Property Regimes in the Arabian Gulf States: Infidels at the Gates (Routledge 2009).  Rawls, John, A Theory of Justice (Harvard University Press, 1971).  Rawls, John, Justice as Fairness: A Restatement (Harvard University Press, 2001).  Reagle Joseph Michael, Good Faith Collaboration The Culture of Wikipedia (The MIT Press, Cambridge, 2011).

352

 Ricketson, Sam and Ginsburg, Jane, International Copyright and Neighbouring Rights: The Berne Convention and Beyond (Oxford University Press, 2005).  Ricketson, Sam and Ginsburg, Jane, International Copyright and Neighbouring Rights: The Berne Convention and Beyond (Oxford University Press, 2006 )  Ricketson, Sam, the Three-Step Test, deemed qualities, libraries and closed Exceptions (Center for Copyright Studies, 2002).  Ricketson, Sam, The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986, (Kluwer, 1987).  Rizk, Nagla and Shaver, Lea, Access to Knowledge in Egypt (Bloomsbury Academic, 2010).  Dreyfuss, Rochelle C., Zimmerman, Diane L. and First, Harry, Working within the Boundaries of Intellectual Property (Oxford University Press, 2010).  Roger, Allen, Introduction to Arabic Literature (Cambridge University Press, 2000).  Saeed, Abdullah, Islamic Thought: An Introduction (Routledge, 2006)  Saleh, Nabil A, Unlawful Gain and Legitimate Profit In Islamic Law (Graham and Tortman 2nd Ed, 1992).  Saunders, David and Sherman, Brad, From Berne to Geneva: Recent Developments in International Copyright and Neighbouring Rights (Australian Key Centre for Cultural and Media Policy, 1997).  Saxenian, Anna, Regional Advantage: Culture and Competition in Silicon Valley and Route 128 (Harvard University Press, 1994).  Sen, Amartya, Development as Freedom (Anchor Books, 2000).  Senftleben, Martin, Copyright, Limitations and the Three-Step Test: An Analysis of the Three-Step Test in International and EC Copyright Law (Kluwer Law International, 2004).  Skyrm, Brian, Evolution of the Social Contract (Cambridge University Press, 1996).

353

 Smiers, Joost, Creative Improper Property: Copyright and the Non-Western World in Fiona Macmillan, New Directions in Copyright Law (Edward Elgar, 2005) Vol I  Spinello, Richard. A. and Bottis, Maria, A Defence of Intellectual Property Rights (Edward Elgar, 2009)  Story, Alan Colin Darch and Halbert, Debora, The Copy/South Dossier: Issues in the Economics, Politics, and Ideology of Copyright in the Global South (The Copy/South Research Group, 2006).  Suber, Peter, Open Access (MIT, 2012).  Madhavi Sunder, From Goods to a Good Life: Intellectual Property and Global Justice (Yale University Press, 2012).  Vaidhyanathan, Siva, Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity (NYU Press, 2001).  Voyce, Stephen, Toward an Open Source Poetics: Appropriation, Collaboration, and the Commons (Wayne State University Press, 2011).  Wack Raymond, Philosophy of Law: A Very Short Introduction (Oxford University Press, 2006).  Wadi D. Hadad Carnoy, Martin; Rinaldi, Rosemary; Regel, Omporn, Education and Development: Evidence for New Priorities (World Bank, 1990).  Weisbrod, Burton, Joel F. Handler, Neil K. Komesar, Public Interest Law: An Economic and Institutional Analysis, (University of California Press1978).  Alford, William P, To Steal a Book is an Elegant Offence: Intellectual Property Law in Chinese Civilisation (Stanford University Press ,1995).  Cornish, William Rodolph and Llewelyn, David, Intellectual Property: Patents, Copyright, Trademarks and Allied Rights (Sweet and Maxwell 7th Ed, 2010).  WIPO, the Situation of Industrial Property in the Arab Counties (WIPO Publications, 1978).  Wong, Tzen and Dutfield, Graham, Intellectual Property and Human development: Current Trends and Future Scenarios,(Cambridge University press, 2011).

354

Books in Arabic

 Abd al-Rahim, Abdullah, Huqūq al-Mu’alif fi al-Duwal al-Arabiya wa al- Tahadiyyat al-Muʿāsera (Naif Arab University for Security Sciences, 2004).  Abd al-Rahman, Abd al-Rahim, Huqūq al-Mulkiyyah al-Fikiriyyah wa Atharuha al-Iqtisadi (Dār al-Fikr al-Jamiʿī 2009).  Abd al-Ra’ūf, Essam, Tarikh al-Fikr al-Islami (Dār al-Fikr al-Arabi,1997)  Abi al-Hasan, al-Nadawi, al-Istiʿrād al-Fighi li Haq al-Ta’līf wa al-Tibaʿa (al-Risalah Foundation, 1977).  Abu al-Khīr, Abdul-Sameʿ, al-Haq al-Mali li al-Mu’alif fi al-Figh al-Islami wa al-Qānūn al-Masri (Wahba Library, 1988).  Abu Zahra, Muhammad, al-Mulkiyyah wa Nazareyat al-ʿaqd fi al-Shari’a al- Islamiyya (Dār al-Fikr al-Arabi, 1977).  Abu Zahra ,Muhammed, Usūl al-Fiqh (Dār al-Fikr al-Arabi, 2006)  Afifi, Ahmed. M, al-Ihtikar wa Mawqif al-Shari’a al-Islamiyya minhu (Maktabat Wahba, 2003).  Ahmed, Fuad A, al-Siyāsa al-Sharʿiyya wa Alaqatuha bi al-Tanmia (Islamic Bank for Development, The Islamic Institute for Research and Training, 2003).  Al Qarafi, Shehab al-Dīn, al-Furūq (Dār al-Salam, 2010) vol 1.  Al-ʿasal, Ibrahim, al-Tanmia fi al-Islam: Mafāhīm, Manāhij wa Tatbiqat (al- Mu’asasa al-Jamiʿiya li al-Nashr wa al-Tawziʿ, 1996).  Al-Albani, Nasr al-Dīn, Sahih al-Targhib wa al-Tarhib (Munsha’at al- Maʿārif).  Al-Amidi, al-Ihkām fi Usūl al-Ahkām (Dār al-Somai’ee 2003)  Al-Bahi, Muhammed, al-Dīn wa al-Dawla (Wahba Library, 1980)  Al-Bahūti, Mansour, Kashaf al-Qinaʿ ʿan matn al-Iqnaʿ (ʿālam al-Kutub, 1997).  Al-Bar, Abdallah, Mafhūm al-Isthikhlaf wa ʿimrarat al-Ardh fi al-Islam (2003) Salah Kamel ‘s Journal of Islamic Economics, al-Azhar University  Al-Dirini, Fathi, Haq al-Ibtikar fi al-Fiqh al-Islami al-Muqāran (al-Risalah Foundation, 1977)

355

 Al-Fangari, Muhammed, al-Madhab al-Iqtisādi fi al-Islam (al-Hay’a al- Misriyya li al-Kitab,, 2006).  Manaʿ al-Gatan, Tarikh al-Tashriʿ al-Islami (Maktabat al-Māʿirf, 1996 ).  Al-Ghazali Abu Hamid, al-Mustasfa, (al-Jamiʿa al-Islamiyya) vol 2,  Al-Ghazali, Mohammed, al-Islam wa al-Manāhij al- al-Ishtirākiyya (Nahdat Misre, 4th ed, 2005).  Al-Ghazali Muhammed, al-Islam wa al-Awdaʿ al-Iqtisādiyya (Nahdat Misr, 2005).  Ali, Atef A, Ihya’ al-Aradhi al-Mawat fi al-Islam (League of the Islamic World, 1996).  Al-Jamahi Ibn Salam, Tabakat Fuhūl Ashuʿara (Umm Al-Qura University).  Al-Khafif Ali, al-Mulkiyyah fi al-Shari’a al-Islamiyya (Dār al-Fikr al-Arabi, 1996).  Al-Maqrizi Taqi al-Dīn, al-Mawaʿid wa al-Eʿtibar (This book is out of copyright) http://www.4shared.com/document/nrHXY1cC/__online.html  Al-Masri, Abd al-samiʿ, Adalat Tawziʿ al-Tharwa fi al-Islam (Maktabat Wahba, 1986).  Al-Qalubi, Samiha, al-Mulkkiyyah al-Sināʿiyya (Dār al-Nahda, 1994)  Al-Qanuji, al-Sayed, al-Hita fi Zikr al-Sihah al-Sita (Dār al-Jalil, Beirut).  Al-Qaradawi Yūsuf, Mudkhal li Derāsat al-Sharia al-Islamiyya (Maktabat Wahba 2009).  Al-Qaradawi, Yūsuf, Ijtihad fi al-Shari’a al-Islamiyya (Dār al-Qalam, 1996);  Al-Qaradawi, Yūsuf, Shariʿat al-Islam Salihatun li al-Tatbiq fi kul zaman wa makan (Maktabat Wahba, 5th ed, 1997).  Al-Qaradawi, Yusuf, al-Takaful al-Ijtimaʿi fi daw al-Shari’a al-Islamiyya (Maktabat Wahba, 2009)  Al-Qaradawi, Yusuf , al-Siyāsa al-Sharʿiyya (Maktabat Wahba, 2011)

 Al-Qaradawi, Yusuf, al- ʿaql wa al-ʿilm fi al-Quran al-Karim (Maktabat Wahba, 1996).  Al-Qaradawi, Yusuf, al-Rasul wa al-ʿilm (Dār al-Sahwa, 2001) 79.  Al-Qaradawi, Yusuf, Dawr al-Qiyam wa al-Akhlaq fi al-Iqtisad al-Islami (Maktabat Wahba, 1995)

356

 Al-Qaradawi, Yusuf, Mūjibat Taghaiyyur al-Fatwa fi ʿasrina (Dār al- Shorouq, 2008)  Al-Sadda, Faraj, al-Mulkkiyya al-Maʿnawiyya: Haq al-Mu’alif (Arab Lawyers, Union, 1967).  Al-Sarkhasi, al-Mabsūt (Dār al-Sa’ad’a, 1912) Vol 11  Al-Suyuti , Jalal al-Dīn, al-Ashbah wa al-Nazāyir (Dār al-Kotob al-Elmeya1 1983).  Al-Suyuti, Abd Alrahman, al-Fariq bina al-Musanif wa al-Sariq (ʿalim al- Kutub, 1998).  Al-Shanqitti, Muhammad, Dirāsa Sharʿiyya li Aham al-ʿuqūd al-Maliyya al- Mustahdatha (Maktabat al-Ulum wa al-Hikam, 2006) Vol 2.  Al-Shatibi, al-Muwafaqat (Dār ibn Affan 1997) Vol 2.  Al-Shatibi, al-Iʿtisam (Maktabat al-Tawhīd) Vol 3.  Al-Shawkani, Muhammed, Irshad al-Fuhūl (Dār al-Fadhila, 2000).  Al-Zarqa, Mustafa, al-Madkhal al-Fiqhi al-ʿām (Dār al-Qalam, Damascus, 1998).  Al-Zuhili, Wahba, Usūl al-Fiqh al-Islami (Dār al-Fikr,1986).  Al-Muslih, Abdallah, al-Mulkiyyah al-Khāsa fi al-Shari’a al-Islamiyya (The International Association of Islamic Banks, 1982).  Ashur al-Tahir B., Maqasid al-Shari’a al-Islamiyya (Dār al-Nafā’is, 2001)  Bakkar, Abd al-Karim, Mudkhal ila al-Tanmia al-Mutakamila (Dār al-Qalam, 2008).  Baqqer, Taha, Mujaz fi Tarikh al-ʿulum wa al-Maʿārif (al-Dār al-Dawliyya li al-Istithmarat al-Thaqafiyya, 2002).  Beltagi Muhammed, al-Mulkiyyah al-Fardiyya fi al-Nizam al-Iqtisādi al- Islami (Dār al-Salam Publications, 2007).  De Youji Said, Bayt al-Hikma (Maktabat Kunuz al-ʿilm, 2006).  Deyab Hamed, al-Kutub wa al-Maktabat fi al-Andalus (Dār Qeba, 1998).  Doss Sinot Halim, Tashriʿat bara’at al-Ikhtiraʿ fi Misr wa al-Duwal al- Arabiyya (Munsha’at al-Maʿārif, 1988).  Al-Sanhūri Abd al-Razzak, al-Wasīt fi al-Qanūn al-Madani (Dār al-Nahda al- Arabiyya, 1952) Volume 1

357

 Halaq Hassan, Dirasāt fi Tarīkh al-Hadāra al-Islamiyya (Dār al-Nahda al- Arabiya, 1999).  Hamadi Idris, al-Masālih al-Mursala wa bina’ al-Mujtamaʿ al-Insani (al- Ma’aref al-Jadeda, Morocco, 2009).  Hassan, Khaled Ramadan, Muʿjam Usūl al-Fiqh (Dār al-Tarabishi, 1998).  Hussain, Muhammed, Khdre, Shariʿat al-Islam Salihatun li al-Tatbiq fi kul zaman wa makan (Nahdat Misr, 1999).  Ibn Abd al-Salam, al-ʿizz, Qaw’aid al-Ahkām fi Islāh al-Anām (Dār ibn Hazm, 2003).  Ibn Abi al-Dunya, Abu-Bakr, Islah al-Mal (al-Wafa Publications, 1990).  Ibn al-Mulaqin, al-Mughni fi ʿulūm al-Hadīth (Dār Fawaz, 1992).  Ibn Al-Qayyim, aʿlam al-muwaqiʿīn (Dār ibn al-Jawzi 2002).  Ibn Kathīt, Tafsīr al-Quran al-ʿadhīm (Dār Tayba) Vol 6.  Ibn Khaldun, al-Muqaddimah, (Bayt al-ʿulūm wa al-Funūn wa al-Adab, 2005) Vol 2.  Ibn Manzur, Lisan al-Arab (Dār al-Maʿ ārif).  Islam, Muhammed K. Imam, Usūl al-Hisbah fi al-Islam (Institution of Ahram for Publications and Distribution,1998).  Jad al-Haq, Ali Jad al-Haq, al-Fiqh al-Islami: Murunatuhu wa tatawūruhu (al-Azhar 2004).  Kamal, Yūsuf, al-Islam wa al-Madhahib al-Iqtisādiyya al-Muʿāsira (Dār al- Waffa, 1990).  Khallaf Abd al-Wahab, Usūl al-Fiqh (Maktabat al-Daʿawa al- Islamiyya/Shabab al-Azhar, 2002).  Larabba Ahmed, Awda’u Huqūq al-Mu’alīf fi al-Watan al-Arabi (Alesco, 1999).  Osama, Muhammed, al-Tajdīd fi al-Fikr al-Islami (Dār ibn al-Jawzi, 2001).  Qutb Sayīd, al-ʿadalah al-Ijtima’iyya fi al-Islam (Dār al-Shuruq, 13th ed, 1993).  Rafiq Ajam, mawsuʿat muʿjam Usūl al-Fiqh ʿinda al-Muslimīn (Maktabat Lobnan1998).  Sayeed, Muhammed R, al-Mal, Mulkiyyatuhu, Istithmaruhu wa Infaquhu (Dār al-Wafa, 2002).

358

 Shalabi, Muhammed M, al-Fiqh al-Islami: Tarekhuhu wa Madārisahu wa Nazareyatuhu: al-Mulkiyyah wa al-ʿaqd (al-Dār al-Jamiʿīya, Beirut, 1985).  Shaltut Muhammed , al-Islam ʿaqīda wa Shariʿa (Dār al-Shurūq, 2001).  Younes Abdallah. M, Athar al-Tanzīm al-Islami li al-Mulkiyyah (Dār al- Shima).  Zedan Abd al-Karim al-Wajīz fi Usūl al-Fiqh (Mu’assasat Cordoba, 1976).

Book Chapters

 Abdel Latif, Ahmed, ‘Egypt’’s Role in the A2K Movement: An Analysis of Positions and Policies’ in Nagla Rizk and Lea Shaver, Access to Knowledge in Egypt (Bloomsbury Academic, 2010).  Aded Adronico, ‘Origins and History of TRIPS Negotiations’ in Christophe Bellmann, Trading in Knowledge: Development Perspectives on Trips, Trade, and Sustainability, International (Centre for Trade and Sustainable Development, 2003).  Bailey, Jane, ‘Deflating the Michelin Man: Protection Users’ rights in the Canadian Copyright Reform Process’ in Michael Geist, In the Public Interest: The Future of Canadian Copyright Law (Irwin Law Inc, 2005)  Benkler, Yochai, ‘Designing Cooperative Systems for Knowledge Production: An Initial Synthesis from Experimental Economics’ in Mario Biagioli, ‎‎,iasaJ‎ reteP‎‎,eeJsae‎ oWW aettaaMaking and Unmaking Intellectual Property: Creative Production in Legal and Cultural Perspective (University of Chicago Press, 2011).  Butler, Henry N. and Ribstein Larry E, ‘Legal Process and the Discovery of Better Policies for Fostering Innovation and Growth’ in Kauffman Task Force on Law, Innovation, and Growth, Rules for Growth: Promoting Innovation and Growth Through Legal Reform (Ewing Marion Kauffman Foundation, 2011).  Cohen, Julie E, ‘Copyright, Commodification, and Culture: Locating the Public Domain in Copyright’ in L. Guibault & P.B. Hugenholtz, The Future of the Public Domain: Identifying the Commons in Information Law, (Kluwer Law International, 2006).

359

 Deere, Carolyn, ‘Reforming Governance to Advance the WIPO Development Agenda’ in Jeremy De Beer, Implementing WIPO’s Development Agenda (Wilfrid Laurier University Press, 2009).  Dinwoodie, Graeme and Dreyfuss Rochelle, ‘Patenting Science Protecting the Domain of Accessible Knowledge’ in L. Guibault & P.B. Hugenholtz, The Future of the Public Domain: Identifying the Commons in Information Law, (Kluwer Law International, 2006).  Dinwoodie, Graeme B., ‘The International Intellectual Property System: Treaties, Norms, National Courts, and Private Ordering’ in Daniel Gervais, Intellectual Property, Trade and Development: Strategies to Optimize Economic Development in a TRIPS Plus Era (Oxford Univ. Press, 2007)  Drassinower, Abraham, ‘Taking User Rights seriously’ in Michael Geist, In the Public Interest: The Future of Canadian Copyright Law (Irwin Law Inc, 2005).  Elmahjub, Ezieddin, ‘Facebook versus Ghaddafi: Social Networking as a Tool for Democratic Change in Libya’ in Helen Sykes, Space Place & Culture (Future Leaders, 2013).  Feinson, Stephen, ‘National Innovation Systems Overview and Country Cases’ in Knowledge Flows and Knowledge Collectives: Understanding The Role of Science and Technology Policies in Development (Rockefeller Foundation, 2003).  Fink, Carsten and Reichenmiller Patrick, ‘Tightening TRIPS: Intellectual Property Provisions of U.S. Free Trade Agreements’ in Richard Newfarmer, Trade, Doha, and Development (World Bank, 2006)  Fisher, William, ‘Theories of Intellectual Property’ in New Essays in the Legal and Political Theory of Property (Cambridge University Press, 2001)  Gallini, Nancy & Scotchmer Suzanne, ‘Intellectual Property: When Is it the Best Incentive System?’ in Adam B. Jaffe, Josh Lerner and Scott Stern, Innovation Policy and the Economy (MIT Press, 2002).  Helfer, Laurence R, ‘Flexibility in International Agreements’ in Jeffrey Dunoff & Mark A. Pollack, Interdisciplinary Perspectives on International Law and International ... International Law and International Relations (Cambridge University Press, 2013).

360

 Ibrahim, Ahmed Ibrahim, Huqūq almu’walīf wa waqi tatbiquha fi al-watan al-arabi in the Arab League Educational, Cultural and Scientific Organization (Alecso), Huqūq al-mu’alif fi al-watan al-arabi bina al-tashriʿ wa al-tatbiq (Alecso, 1996)  Azmi Ida, ‘Distinctive Signs and Early Markets: Europe Africa and Islam’ in Alison Firth, Perspectives on Intellectual Property (Sweet and Maxwell, 1997)  Li Xuan, ‘A Conceptual and Methodological Framework for Impact Assessment under the WIPO Development Agenda’ in Jeremy De Beer, Implementing WIPO’s Development Agenda (Wilfrid Laurier University Press, 2009).  Li Lihong, ‘Localizing WIPO’s Legislative Assistance: Lessons from China’s Experience with the TRIPs Agreement’ in Jeremy De Beer, Implementing WIPO’s Development Agenda (Wilfrid Laurier University Press, 2009).  Maskus, Keith E, ‘Incorporating a Globalized Intellectual Property Rights Regime into an Economic Development Strategy’ in Hamid Beladi and E. Kwan Choi Frontiers of Economics and Globalization (Emerald, 2007)  Mayne, Ruth, ‘the Global Campaign on Patents and Access to Medicines: An Oxfam Perspective’ in Peter Drahos and Ruth Mayne, Global Intellectual Property Rights: Knowledge, Access and Development, (Oxfam, 2002).  Netanel, Neil, ‘WIPO Development Agenda and Its Development Policy Context’ in Weinstock, the Development Agenda: Global Intellectual Property and Developing Countries (Oxford University Press, 2009).  Okediji, Ruth. L, ‘Sustainable Access to Copyright Digital Information Works in Developing Countries’ in Keith E. Maskus and Jerome H. Reichman, International Public Goods and Transfer of Technology Under a Globalized Intellectual Property Regime (Cambridge University Press, 2005).  Paranagua, Pedro, ‘Strategies to Implement WIPO’s Development Agenda: A Brazilian Perspective and Beyond’ in Jeremy De Beer, Implementing WIPO’s Development Agenda (Wilfrid Laurier University Press, 2009)  Sachs, Jeffrey, ‘the Global Innovation Divide’ in Adam B. Jaffe, Josh Lerner and Scott Stern, Innovation Policy and the Economy, (MIT Press, 2003).

361

 Sampat, Bhaven. N, ‘The Accumulation of Capabilities in Indian Pharmaceuticals and Software’ in Hiroyuki Odagiri et all, Intellectual Property Rights, Development and Catch-Up: an International comparative Study (Oxford University Press, 2010).  Stallman, Richard, ‘Free Software’ in Mark Pery and Brian Fitzgerald, Knowledge Policy for the Twenty-First Century: A Legal Perspective (Irwin Law Inc, 2011).  Standburg, Katharine, J, ‘The Research Exemption to Patent Infringement: The Delicate Balance between Current and Future Technical Progress’ in Peter K. Yu, Intellectual Property and Information Wealth: Issues and Practices (Praeger Publisher, 2007).  Sunder, Madhavi, ‘Intellectual Property and Development as Freedom’ in Neil Weinstock Netanel, The Development Agenda: Global Intellectual Property and Developing Countries (Oxford University Press, 2008).  Tawfik, Myra, ‘International Copyright Law: W[h]ither Users Right?’ in Michael Geist, In the Public Interest: The Future of Canadian Copyright Law (Irwin Law Inc, 2005).

Journals

 Abramowicz, Michael, ‘Perfecting Patent Prizes’ (2003) 56 VAND. L. REV.  Acemoglu, Dāron and Akcigit, Ufuk, ‘Intellectual Property Rights Policy, Competition and Innovation’ (2012) Journal of the European Economic Association.  Al-Fadhil, Salah, ‘the Ethical Dilemma of Software Piracy in Islamic Societies: The Case of Kuwait’ (2009) EJISDC 4-5.  Alford, William, ‘Making the World Safe for What: Intellectual Property Rights, Human Rights and Foreign Economic Policy in the Post-European Cold War World’(1997) 29 N.Y.U. J. Int'l L. & Pol,135, 146.  Almeida, Rita and Fernandes Ana Margarida, ‘Openness and Technological Innovations in Developing Countries: Evidence from Firm-Level Surveys’ (2008) The Journal of development studies.

362

 Amabile, Teresa, ‘Effects of External Evaluation on Artistic Creativity’ (1979) Journal of Personality and Social Psychology, Vol. 37, No. 2.  Amabile, Teresa, ‘The Social Psychology of Creativity: A Componential Conceptualization’ (1983) Journal of Personality and Social Psychology, Vol 45(2).  Amanullah, Muhammed, ‘Author’s Copyright: An Islamic Perspective’ (2006) The Journal of World Intellectual Property  Aoki, Keith, 'Distributive and Syncretic Motives in Intellectual Property Law (with Special Reference to Coercion, Agency, and Development)' (2006-2007) 40 U.C. Davis L. Rev.  Arquit, Kevin J, ‘Patent Abuse and Antitrust Laws’ (1990-1991) 59 Antitrust L.J.  Azmi, Abdul Ghani, ‘The Philosophy of Intellectual Property Rights over Ideas in Cyberspace: A Comparative Analysis between the Western Jurisprudence and the Shari'ah’ (2004) Arab Law Quarterly  Azmi, Ida Madieha BT. Abdul Ghani, ‘Basis for the Recognition of Intellectual Property in Light of the Shari’ah’ 1996 International Review of Industrial Property Vol 27  Besen, Stanley M. and Raskind, Leo J, ‘Introduction to the Law and Economics of Intellectual Property’ (1991) the Journal of Economic Perspectives  Bakre, Abu Zied A, ‘Mulkiyyat al-Ta’līf Tarīkhan wa Hukman’ (1986) 2 (2) Journal of International Islamic Figh Academy  Bartow, Ann, ‘Copyrights and Creative Copying’ (2003–2004) University of Ottawa Law & Technology Journal  Bashir, Abdel Hameed M., ‘Property Rights and Institutions and Economic Development: An Islamic Perspective’ , (2002) Humanomics, Vol. 18 Iss: 3  Behdad, Sohrab, ‘Property Rights in Contemporary Islamic Economic Thought: A Critical Perspective’ (1989) Review of Social Economy Volume 47, Issue 2  Beltramitti, Silvia, ‘The Legality of Intellectual Property Rights Under islamic Law’, (2009) Prague Yearbook of Comparative Law 56.

363

 Benkler, Yochai, ‘Coase's Penguin, or, Linux and "The Nature of the Firm"' (2002) The Yale Law Journal, Vol. 112, No. 3.  Benkler, Yochai, ‘Freedom in the Commons’ (2003) 52 Duke Law Journal  Benkler, Yochai, ‘From Consumers to Users: Shifting the Deeper Structures of Regulation toward Sustainable Commons and User Access’(1999-2000) The Federal Communication Law Journal  Benkler, Yochai, ‘Property, Commons, and the First Amendment: Towards a Core Common Infrastructure’ (White Paper for the First Amendment Program Brennan Center for Justice at NYU School of Law, 2002)  Benkler, Yochai, ‘Sharing Nicely: On Shareable Goods and the Emergence of Sharing as a Modality of Economic Production’ (2005) The Yale Law Journal,  Benkler, Yochai, ‘The Unselfish Gene’ (Aug 2011) Harvard Business Review  Benkler, Yochai, 'Intellectual property and the organization of information production’ (2002) International Review of Law and Economics  Bergquist, Magnus & Ljungberg Jan, ‘The power of gifts: organizing social relationships in open source communities’ (2001) Information Systems Journal.  Bitzera, Jürgen, Schrettla Wolfram and Schröderb Philipp J. H, ‘Intrinsic motivation in open source software development’ (2007) Journal of Comparative Economics.  Bohannan, Christina, 'Taming the Derivative Works Right: A Modest Proposal for Reducing Over breadth and Vagueness in Copyright' (2010) Vanderbilt Journal of Entertainment & Technology Law, Vol. 12, No. 4.  Borensztein, E., De Gregorio J. and Lee, J-W., ‘How does foreign direct investment affect economic growth’(1998) Journal of International Economics.  Boyle, James, ‘A Manifesto on WIPO and the Future of Intellectual Property’ (2004) Duke Law & Technology Review  Boyle, James, ‘A Politics of Intellectual Property: Environmentalism for the Net’ (1997) Duke Law Journal Vol. 47, No. 1  Boyle, James, ‘The Second Enclosure Movement and the Construction of the Public’ (2003) Law and Contemporary Problems

364

 Boyle, James, ‘What Intellectual Property Law Should Learn from Software’ (2009) The Communications of the ACM  Bradley, Jane A., ‘Intellectual Property Rights, Investment, and Trade in Services in the Uruguay Round: Laying the Foundations’ (1987) Stanford Journal of International Law  Brewster, Rachel, ‘The Surprising Benefits to Developing Countries of Linking International Trade and Intellectual Property’ (2011-2012) 12 Chi. J. Int'l L. 1  Burk, Dan L. and Lemley, Mark A., ‘Policy Levers in Patent Law’ (2003) 89 VA. L. REV.  Burk, Dan L, 'Anticircumvention Misuse’ (2003) 50 UCLA L. REV  Carliss, Y. Baldwin and Eric A. Von Hippel, 'Modeling a Paradigm Shift: From Producer Innovation to User and Open Collaborative Innovation' (MIT Sloan School of Management Working Paper # 4764-2009)  Carrier, Michael A, ‘Cabining Intellectual Property Through a Property Paradigm’ (2004) Duke Law Journal, Vol. 54, No. 1  Carrol, John, ‘Intellectual Property Rights in the Middle East: A Cultural Perspective’, (2001) Fordham Intel. Prop, Media and Ent. L. J Vol 14;  Carvert, Bnan W, Why License Agreements Do Not Control (2010) 25 Berkeley Tech. L.J. 1887.  Castillo, Daniel, ‘the Arab World's Scientific Desert (2004): The Chronicle of Higher Education 50.  Castillo, Larisa, ‘Natural Authority in Charles Dickens's Martin Chuzzlewit and the Copyright Act of 1842’ (2008) Journal of Victorian Fiction.  Chan, Sara Wei-Ming, ‘Canadian Copyright Reform - 'User Rights' in the Digital Era’ (2009) University of Toronto Faculty of Law Review Vol. 67.  Chander, Anupam & Sunder Madhavi, ‘Is Nozick Kicking Rawlss Ass? Intellectual Property and Social Justice’ (2007) 40 U.C. Davis L. REV.  Chang, J. H, ‘Intellectual Property Rights and Economic Development: Historical Lessons and Emerging Issues’ (2001) Journal of Human Development, Vol. 2, No. 2;

365

 Chapara, Muhammed Umer, ‘Ibn Khaldun’s Theory of Development: Does it help explain the low performance of the present-day Muslim world?’ (2008) The Journal of Socio-Economics 37  Chon, Margaret ‘Intellectual Property "from Below" Copyright and Capability for Education’ (2007) 40 U.C. Davis L. Rev.  Chon, Margaret, ‘Intellectual Property and the Development Divide’ (2005- 2006) 27 Cardozo L. Rev  Chueh, Alfred, ‘Restoring the Natural Law: Copyright as Labor and Possession’(1990) Ohio State Law Journal, Vol. 51  Cohen, Julie E, ‘The Place of the User in Copyright Law’ (2005) Fordham L. Rev.  Cohen, Julie E, ‘Creativity and Culture in Copyright Theory’ (2007) 40 U.C. Davis L. Rev.  Cullen, Chad M., ‘Can TRIPS Live in Harmony with Islamic Law? An Investigation of the Relationship between Intellectual Property and Islamic Law’ (2010) SMU Sci. and Tech. L. Rev.  Gervais, Daniel, 'The Tangled Web of UGC: Making Copyright Sense of User-Generated Content' (2009) Vanderbilt Journal of Entertainment and Technology Law.  David, Paul A, ‘The Evolution of Intellectual Property Institutions and the Panda's Thumb’ (1992) International Economic Association in Moscow  Hartly, Dean and Khan, Zafar, ‘Muslim Perspective on Welfare’ (1997) Journal of Social Policy  Dinwoodie, Graeme B, ‘the Architecture of the International Intellectual Property System’ (2002) Chicago-Kent College of Law  Drahos, Peter, ‘An Alternative Framework for the Global Regulation of Intellectual Property Rights’ (2005) Austrian Journal of Development Studies  Drahos, Peter, ‘Developing Countries and International Intellectual Property Standard-Setting’ (2002) The Journal of World Intellectual Property  Drahos, Peter, 'Four Lessons for Developing Countries from the Trade Negotiations over Access to Medicines' (2007) Liverpool Law Review

366

 Drahos, Peter, 'Securing the Future of Intellectual Property: Intellectual Property Owners and Their Nodally Coordinated Enforcement Pyramid' (2004) 36 Case W. Res. J. Int'l L.  Dreyfuss, Rochelle Cooper, ‘Are Business Method Patents Bad for Business?’ (2000) 16 Santa Clara Computer & High Tech. L. J.  Eisenberg, Rebecca S, ‘Obvious to Whom? Evaluating inventions from the Perspective of PHOSTIA’ (2004) Berkeley Technology Law Journal.  Eisenberg, Rebecca S, ‘Patents and the Progress of Science: Exclusive Rights and Experimental Use’ (1989) The University of Chicago Law Review, Vol. 56 No. 3.  Eisenberger, Robert & Shanock Linda, ‘Rewards, Intrinsic Motivation, and Creativity: A Case Study of Conceptual and Methodological Isolation’ (2003) Creativity Research Journal.  El Said, Mohammed K, ‘the European Trips-Plus Model and The Arab World: From Co-Operation to Association— A New Era in the Global IPRS Regime?’ (2007) Liverpool Law Review, Volume 28, Issue 1.  El Said, Mohammed, ‘The Morning After: TRIPS-Plus, FTAs and Wikileaks - Fresh Insights on the Implementation and Enforcement of IP Protection in Developing Countries’, (PIJIP Research Paper Series, 2012).  Ellen, Hoen, Berger J, Calmy A and Moon S ‘Driving a decade of Change: HIV/AIDS, Patents and Access to Medicines for All’ (2011) Journal of the International AIDS Society.  Fisher, William W. & McGeveran William, ‘The Digital Learning Challenge: Obstacles to Educational Uses of Copyright Material in the Digital Age’ (2006) The Berkman Center for Internet & Society at Harvard University.  Fisher, William W, ‘Reconstructing the Fair Use Doctrine’ Harvard Law Review (1988).  Fitzgerald, Brian, ‘Theoretical underpinning of intellectual property: "I am a pragmatist but theory is my rhetoric" (2003) The Canadian Journal of Law and Jurisprudence, 16 (2).  Flectias, Opwis, ‘Maslaha in Contemporary Islamic Legal Theory’ (2005) Islamic L. & Soc'y.

367

 Fromer, Jeanne C, 'Claiming Intellectual Property’ (2009) University of Chicago Law Review, Vol. 76, No. 2.  Gaertner, Wulf, ‘Rawlsianism, Utilitarianism, and Profiles of Extended Orderings’ (1981) Journal of Institutional and Theoretical Economics  Garrison, Christopher, 'Exceptions to Patent Rights in Developing Countries' (UNCTAD - ICTSD Project on IPRs and Sustainable Development, 2006)  Gervais, Daniel J, 'Intellectual Property, Trade & Development: The State of Play' (2005) 74 Fordham L. Rev.  Gervais, Daniel, ‘Canadian copyright law post-CCH’ (2005) Intellectual Property Journal  Gervais, Daniel, Intellectual Property, ‘Trade & Development: The State of Play’ (2005) Fordham Law Review  Ginsburg, Jane C., ‘Essay - How Copyright Got a Bad Name For Itself’ (2002) Columbia Journal of Law and the Arts, Vol. 26, No. 1  Ginsburg, Jane C., ‘International Copyright: From a "Bundle" of National Copyright Laws to a Supranational Code?’(2000) Public Law & Legal Theory Working Paper Group  Ginsburg, Jane C, ‘Copyright and Control over New Technologies of Dissemination’ (2001) Columbia Law Review, Vol. 101  Glass, Amy Jocelyn and Saggi Kamal, ‘Intellectual property rights and foreign direct investment’ (2002) Journal of International Economics 56  Gordon, Wendy J. and Bahls Daniel, 'The Public's Right to Fair Use: Amending Section 107 to Avoid the Fared Use Fallacy' (2007) Utah L. Rev.  Gould, David M. and Gruben, William C, ‘The role of intellectual property rights in economic growth’ (1996) Journal of Development Economics  Graves, Jim, 'Who Owns a Copy?: The Ninth Circuit Misses an Opportunity to Reaffirm the Right to Use and Resell Digital Works' (2011) Cybaris® An Intellectual Property Law Review  Habachy, Saba, ‘Property, Right and Contract in Muslim Law’ (1962) Colum. L. Rev  Hantman, Ronald D, 'Experimental Use as an Exception to Patent Infringement' (1985) 67 J. Pat. & Trademark Off. Soc'y

368

 Haochen, Sun, 'Fair Use as a Collective User Right' (2011) North Carolina Law Review, Vol. 90, No. 125  Hardin, Garrett, ‘the Tragedy of the Commons’ (1968) Science, New Series, Vol. 162  Hassanien, Muhammed H., ‘Bilateral WTO-Plus Free Trade Agreements in the Middle East: A Case Study of OFTA in Post TRIPs Era’ (2007-2008) Wake Forest Intellectual Property Journal Vol. 8  Henkel, Joachim and Hippel Eric von, 'Welfare Implications of User Innovation' (2005) Journal of Technology Transfer.  Henning, Grosse and Ruse-Khan, ‘The International Law Relation between TRIPS and Subsequent TRIPS-Plus Free Trade Agreements: Towards Safeguarding TRIPS Flexibilities’ (2010-2011) 18 J. Intell. Prop. L.  Heren, Jamie. B., ‘TRIPS and Pharmaceutical Patents: the Pharmaceutical Industry vs. The World’ (2009-2010) Intell. Prop. L. Bull. 43.  Hes,s Charlotte and Ostrom, Elinor, 'Ideas, Artifacts, and Facilities: Information as a Common-Pool Resource' (2003) Law and Contemporary Problems, Vol. 66, No. ½.  Hubbard, Tim and Love James, ‘A New Trade Framework for Global Healthcare R&D’ (2004) PLoS Biol 2.  Hugenholtz, P. Bernt and Okediji Ruth L, ‘Conceiving an International Instrument on Limitations and Exceptions to Copyright’ (Amsterdam Law School Legal Studies Research Paper No. 2012-433) 3  Hughes, Justin, ‘The Philosophy of Intellectual Property’ (1988) Geo. L.J, 30  Azmi, Ida Madieha bt. Abdul Ghani, ‘Institutional Repositories in Malaysia: The Copyright Issues’ (2008) International Journal of Law and Information Technology Vol. 17 No. 3  Branstetter, Lee G, Raymond Fisman and Fritz Foley, ‘Do Stronger Intellectual Property Rights Increase International Technology Transfer?: Empirical Evidence from U.S. Firm-Level Data’ (2006) The Quarterly Journal of Economics  Reichman, J. J and Uhlir, Paul, ‘A Contractually Reconstructed Research Commons for Scientific Data in a Highly Protectionist Intellectual Property Environment’ (2003) Law and Contemporary Problems.

369

 Johnson Eric E., ‘Intellectual Property and the Incentive Fallacy’ (2012) FLA St. L. Rev., 1  Joseph, Gerhard, ‘Charles Dickens, International Copyright, and the Discretionary Silence of Martin Chuzzlewit’(1991-1992) 10 Cardozo Arts & Ent. L.J  Kamali, Muhammed H, ‘Figh and Adaptation to Social Reality’ (1996) The Muslim World vol, LXXXVI, No 1  Kapczynski, Amy, 'The Access to Knowledge Mobilization and the New Politics of Intellectual Property' (2008) The Yale Law Journal, Vol. 117, No. 5  Kawashima, Nobuko, 'The rise of ‘user creativity’ – Web 2.0 and a new challenge for copyright law and cultural policy' (2010) International Journal of Cultural Policy.  Khan, Ali, ‘Islam as Intellectual Property: My Lord! Increase me in knowledge’ (2000-2001) Cumberland Law Review, Vol. 31  Khory, Amir H. , ‘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.  Khory, Amir, ‘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 204.  Khory, Amir, ‘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  Khory, Amir, 'Measuring the Immeasurable - The Effects of Trademark Regimes: A Case Study of Arab Countries' (2006-2007) 26 J.L. & Com. 11  Khoury, Amir H., ‘The Development of Modern Trademark Legislation and Protection in Arab Countries of the Middle East’ (2003) 16 Transnati’l Law  Kim, Minjeong, 'the Creative Commons and Copyright Protection in the Digital Era: Uses of Creative Commons Licenses' (2007) Journal of Computer-Mediated Communication  Klieger, Robert N., ‘Trademark Dilution: The Whittling Away of the Rational Basis for Trademark. Protection’ (1996-1997) 58 U. Pitt. L. Rev.

370

 Koren, Niva, ‘Making Room for Consumers under the DMCA’ (2007) 22 Berkeley Tech. L.J  Koury, Andrta, ‘Changing WIPO’S Ways? The 2004 Development Agenda in Historical Perspective’ (2006) the Journal of World Intellectual Property Volume 8, Issue 6.  Krasilovesky, William ‘Observations on Public Domain’ (1967) 14 Bull Copyright Soc'y U.S.A.  Kreps, David M., ‘Intrinsic Motivation and Extrinsic Incentives’ (1997) The American Economic Review, Vol. 87, No. 2  Krogh, Georg von and Hippel Eric von, ‘The Promise of Research on Open Source Software’ (2006) Management Science  Krogh, Georg von, Ikujiro Nonaka and Lise Rechsteiner, 'Leadership in Organizational Knowledge Creation: A Review and Framewor' (2012) Journal of Management Studies Volume 49, Issue 1.  Lakhani, Karim and Wolf Robert G., ‘Why Hackers Do What They Do: Understanding Motivation and Effort in Free/Open Source Software Projects’(2003) MIT Sloan Working Paper.  Lakhani, Karim R. and Hippel Eric von, How open source software works: “free” user-to-user assistance’ (2003) Research Policy 32.  Lemely, Mark, ‘Intellectual Property and Shrink Wrap Licenses’ (1995) Southern California Law Review.  Lemely Mark, ‘The Modern Lanham Act and the Death of Common Sense’ (May, 1999) The Yale Law Journal, Vol. 108, No. 7.  Lang, David ‘Recognizing the Public Domain’ (1981) Law and Contemporary Problems, Vol. 44, No. 4.  Lee, Edward, ‘The Public’s Domain: The Evolution of Legal Restraints on the Government’s Power to Control Public Access Through Secrecy or Intellectual Property’ (2003) Hastings Law Journal.  Lee, Edward, ‘Warming Up to User-Generated Content’ (2008) U ILL L. REV.  Lerner, Josh and Tirole Jean, ‘Some Simple Economics of Open Source’ (2003) The Journal of Industrial Economics.  Lerner, Josh and Tirolec Jean, 'The open source movement: Key research questions' (2001) European Economic Review.

371

 Lessig, Lawrence, ‘Intellectual Property and Code’ (1995-1996) 11 St. John's J. Legal Comment.  Lessig, Lawrence, ‘Re-Crafting a Public Domain’ (2006) 18 Yale J.L. & Human.  Lessig, Lawrence, 'Creative Commons' (2004) 65 Mont. L. Rev.  Leval, Pierre N, 'Toward a Fair Use Standard' (Mar., 1990) Harvard Law Review, Vol. 103, No. 5.  Litman, Jessica, ‘The Public Domain’ (1990) 39 Emory L. J. 965.  Litman, Jessica, ‘Exclusive Right to Read’ (1994-1995) 13 Cardozo Arts & Ent. L.J.  Litman, Jessica, ‘Lawful Personal Use’ (2007) Texas Law Review, Vol. 85.  Litman, Jessical, ‘Sharing and Stealing’ (2004) Hastings Communications and Entertainment Law Journal, Vol. 27.  Loren, Lydia Pallas, ‘The Changing Nature of Derivative Works in the Face of New Technologies’ (2000) 4 J. Small & Emerging Bus. L. 57.  Love, James and Hubbard, Tim, ‘Bid Idea: Prizes to Stimulate R&D for New Medicines’(2007) 82 Chi.-Kent L. Rev.  Love, James and Hubbard, Tim, ‘Prizes for Innovation of New Medicines and Vaccines’ (2009) 18 Annals Health L.  Love, James, ‘A New Trade Framework for Global Healthcare R&D’ (Paper for Columbia University’s Workshop on Access to Medicines and the Financing of Innovations in Heath Care, Dec. 4, 2003).  Love, James, ‘Drug Development Incentives to Improve Access to Essential Medicines’ (2006) 84 BULL. WORLD HEALTH ORG. 408.  Love, James, ‘Measures to Enhance Access to Medical Technologies, and New Methods of Stimulating Medical R&D’ (2007) 40 U.C. DAVIS L. REV.  Madison, Michael J., ‘A Pattern-Oriented Approach to Fair Use’ (2004) 45 WM. & MARY L. REV.  Madison, Michael J, 'Rewriting Fair Use and the Future of Copyright Reform’ (2005) Cardozo Arts & Entertainment Law Journal, Vol. 23, No. 2  Madison, Michael J., ‘Legal-Ware: Contract and Copyright in the Digital Age’(1998) 67 FORDHAM L. REV.

372

 Mandel, Gregory N, ‘To promote the creative process: intellectual property law and the psychology of creativity’ (2011)Notre Dame Law Review.  Martin, Brian, ‘Against Intellectual Property’ (1996) Journal of Intellectual Property Rights, Vol. 1, No. 5.  Martin, Todd. ‘Patentability of Methods of Medical Treatment: A Comparative Study’ (2000) Journal of Patent and Trademark Office Society.  Maskus, Keith and Reichman, Jerome, ‘The Globalization of Private knowledge Goods and the Privatization of Global Public Goods (2004) Journal of International Economic Law 7(2).  Maskus, Keith, ‘The Role of Intellectual Property Rights in Encouraging. Foreign Direct Investment and Technology Transfer’ (1998) Duke Journal of Comparative & International Law.  Maurer, Stephen M. and Scotchmer, Suzanne, ‘Open Source Software: The New Intellectual Property Paradigm’ (Working Paper 12148, National Bureau of Economic Research, 2006).  May, Christopher, ‘Between Commodification and ‘Openness’: The Information Society and the Ownership of Knowledge’ (2006) Journal of Information, Law and Technology.  Mayeda, Graham, ‘Appreciate the Difference: The Role of Different Domestic Norms in Law and Development Reform—Lessons from China and Japan’ (2006) McGill Law Journal.  Mazzone, Jason, 'Copyfraud' (2006) New York University Law Review, Vol. 81  Meier, Stephan, ‘Doing Good or Doing Well? Image Motivation and Monetary Incentives in Behaving Prosaically’ (2009) The American Economic Review.  Melhem, Qais Mahafzah, Basemand Ali and Haloosh Hitham A, ‘The Perspective of Moral and Financial Rights of Intellectual Property in Islam’ (2009) Arab Law Quarterly, Volume 23.  Merges, Robert, ‘As Many as Six Impossible Patents before Breakfast: Property Rights for Business Concepts and Patent System Reform’ (1999) 14 Berkeley Tech. L. J.

373

 Meurer, Michael J., 'Business Method Patents and Patent Floods' (2002) 8 Wash. U. J.L. & Pol'y.  Mohd, Ghazali Mohd ‘Building an innovation-based economy: The Malaysian technology business incubator experience’ (2001) Journal of Change Management.  Moon, Suerie ‘Meaningful Technology Transfer tovthe LDCs: A Proposal for a Monitoring Mechanism for TRIPS Article 66.2’ (2011) International Centre for Trade and Sustainable Development.  Moore, Adam. D., ‘Intellectual Property, Innovation, and Social Progress: The Case Against Incentive Based Arguments’ (2003) Hamline Law Review.  Mtima, Lateef and Jamar Steven D, ‘Fulfilling the Copyright Social Justice Promise: Digitizing Textual Information’ (2010) New York Law School Law Review.  Mtima, Lateef, ‘Copyright Social Utility and Social Justice Interdependence: A Paradigm for Intellectual Property Empowerment and Digital Entrepreneurship’ (2009-2010) 112 W. Va. L. Rev. 97.  Naser, M. A. and Muhaisen W. H., 'Intellectual Property: An Islamic Perspective' (2008-2009) 56 J. Copyright Soc'y U.S.A.  Nussbaum, Martha ‘Capabilities and Human Rights’(1997-1998) C 66 Fordham L. Rev  Nussbaum, Martha, Creating Capabilities: The Human Development Approach (Harvard University Press, 2011)  Netanel, Net, ‘Impose a Noncommercial Use Levy to Allow Free Peer-to-Peer File Sharing’ (2003) Harvard Journal of Law & Technology, Vol. 17.  Nwauche, Enyinna S., ‘A Development Oriented Intellectual Property Regime for Africa’ (Paper presented at the 11 th General Assembly of the Council for the Development of Social Science Research for Africa (CODESRIA) in Maputo Mozambique 6-10 December 2005).  Ochoa, Tyler, ‘Copyright, ‘Derivative Works, and Fixation: Is Galoob a Mirage or Does the Form (Gen) of the Alleged Derivative Work Matter?’ (2004) 20 Santa Clara Computer & High Technology Law Journal.

374

 Okediji, Ruth L., ‘International Relations of Intellectual Property: Narratives of Developing Country Participation in the Global Intellectual Property System’ (2003) Sing. J. Int'l & Comp. L.  Okediji, Ruth, ‘Public Welfare and the Role of the WTO: Reconsidering the TRIPS Agreement’(2003) 17 Emory Int'l L. Rev.  Okediji Ruth, ‘Toward an International Fair Use Doctrine’ (2000-2001) 39 Colum. J. Transnat'l L. 75.  Okediji, Ruth. L., ‘The International Copyright System: Limitations, Exceptions and Public Interest Considerations for Developing Countries’ (2006) International Centre for Trade and Sustainable Development (ICTSD).  Olwan, Rami, ‘A Pragmatic Approach to Intellectual Property and Development: A Case Study of the Jordanian Copyright Law in the Internet Age’ (PIJIP Research Paper No. 2012-07).  O'Rourke Maureen A,‘Toward a Doctine of Fair Use in Patent Law’ (2000) 100 Colum L. Rev. 1177.  Arzberger A, Schroeder P, A Beaulieu, Bowker, K Casey, L Laaksonen, D Moorman, P Uhlir,7 P Wouters, 'Promoting Access to Public Research Data for Scientific, Economic, and Social Development' (2004) Data Science Journal, Volume 3.  Park W, and Juan Ginarte, ‘Intellectual Property Rights And Economic Growth’(1997) Contemporary Economic Policy.  Park, W. G. and D. C. Lippoldt, ‘Technology Transfer and the Economic Implications of the Strengthening of Intellectual Property Rights in Developing Countries’ (OECD Trade Policy Working Papers, 2008).  Park, W. G. and D. C. Lippoldt, ‘Technology Transfer and the Economic Implications of the Strengthening of Intellectual Property Rights in Developing Countries’ (OECD Trade Policy Working Papers, 2008).  Patry, William, ‘Limitations and Exceptions in the Digital Era’ (2011) The Indian Journal of Law and Technology, Vol. 7.  Pistorius T., "Developing Countries and Copyright in the Information Age - The Functional Equivalent Implementation of the WCT" (2006) Potchefstroom Electronic Law Journal, 157.

375

 Poor, Nathaniel, ‘Copyright Notices in Traditional and New Media Journals: Lies, Damned Lies, and Copyright Notices’ (2008) Journal of Computer- Mediated Communication.  Price, David, ‘The Dynamics of Intellectual Property Protection in the Arab Gulf States’ (2007) 3 (1) International Review of Business Research Papers.  Puttitanun, Chen, T., ‘Intellectual Property Rights and Innovation in Developing Countries’ (2005) Journal of Development Economics.  Rai, Arti K., 'Open and Collaborative Research: A New Model for Biomedicine', Legal Studies Research Paper Series (Research Paper No. 61 October 2004).  Raslan, Heba, ‘Shari’a and the Protection of Intellectual Property, the Example of Egypt’ (2007) Intellectual Property Law Review.  Reichman, J. H., ‘The TRIPS Agreement Comes of Age: Conflict or Cooperation with the Developing Countries?’ (2000) 32 Case W. Res. J. Int’l L.  Reichman, Jerome H. & Dreyfuss Rochelle Cooper, ‘Harmonization without Consensus: Critical Reflections on Drafting a Substantive Patent Law Treaty’ (2007) 57 Duke L. J. 85.  Ritter, Dominique S., ‘Switzerland’s Patent Law History’ (2004) Fordham Intell Prop, Media & ENT L.  Ron, Marchant, “Managing Prize Systems: Some Thoughts on the Options’ (2008) KEStudies, Vol. 2.  Rubinfeld Jed, ‘Freedom of Imagination: Copyright’s Constitutionality’ (2002) 112 Yale Law Journal.  Ruth, Gana, ‘Prospects for developing countries under theTRIPS Agreement’ (1996) Vanderbilt Journal of Transnational Law.  Sadeq, Abul Hasan M., ‘Waqf: perpetual charity and poverty alleviation’ (2002) International Journal of Social Economics.  Samiul, Hasan, ‘Islamic Concept of Social Justice: Its Possible Contribution to Ensuring Harmony and Peaceful Coexistence in a Globalised World’ (2007) Macquarie Law Journal Vol 7.  Samuels, Edward, ‘Public Domain in Copyright Law’ (1993) 41 Journal of the Copyright Society.

376

 Samuels, Edward, ‘Public Domain in Copyright Law’ (1993) 41 Journal of the Copyright Society.  Samuelson, Pamela, ‘The U.S. Digital Agenda at WIPO’ (1996-1997) 37 Va. J. Int'l L. 369.  Samuelson, Pamela and Schultz Jason, 'Should Copyright Owners Have to Give Notice of Their Use of Technical Protection Measures' (2007) 6 J.on Telecomm.& High Tech.L.  Samuelson, Pamela, ‘Enriching Discourse on Public Domains’ (2006) Duke Law Journal, Vol. 55, No. 4.  Samuelson Pamela, ‘The Quest for a Sound Conception of Copyright's Derivative Work Right’(2012) Georgetown Law Journal.  Sanders, Anselm Kamperman, 'Intellectual Property, Free Trade Agreements and Economic Development' (2006-2007) 23 Ga. St. U. L. Rev.  Schechter, Frank L, ‘the Rational Basis of Trademark Protection’ (1927) 40 Harvard Law Review.  Scherlen, Allan & Robinson Matthew, ‘Open Access to Criminal Justice Scholarship: A Matter of Social Justice’ (2008) Journal of Criminal Justice Education.  Schlachter, Eric ‘Intellectual Property Renaissance in Cyberspace: Why Copyright Law Could Be Unimportant on the Internet’ (1997) Berkeley Tech. L.J. 15.  Schneider, Patricia Higino, ‘International trade, economic growth and intellectual property rights: A panel data study of developed and developing countries’ (2006) Journal of Development Economics.  Scotchmer, Suzanne, ‘Standing on the Shoulders of Giants: Cumulative Research and the Patent Law’ (1991) Journal of Economic Perspectives.  Seringhaus, Michael, ‘Note, E-Book Transactions: Amazon “Kindles” the Copy Ownership Debate’ (2009) 12 Yale J.L. & Tech. 147.  Shah, Sonali K., ‘Motivation, Governance, and the Viability of Hybrid Forms in Open Source Software Development’ (2006) Management Science, 1000.  Steven, Jamar D., ‘The Protection of Intellectual Property under Islamic Law’ (1992) 21 Cap U.L Rev, 1093.

377

 Steven, Jamar D, ‘The Protection of Intellectual Property under Islamic Law’ (1992) 21 Cap U.L Rev.1079;  Stiglitz, Joseph, ‘Economic Foundations of Intellectual Property Rights’ (2007-2008) 57 Duke L.J. 1693.  Stiglitz, Joseph, ‘Scrooge and Intellectual Property Rights: A Medical Prize Fund Could Improve the Financing of Drug Innovations’(2006) 333 BRITISH MED. J.  Story, Alan, ‘Burn Berne: Why the Leading International Copyright Convention Must Be Repealed’ (2003) Houston Law Review.  Strandburg, Katherine J, ‘Users as Innovators: Implications for Patent Doctrine’ (2008) 79 U. Colo. L. Rev.  Strandburg Katherine, ‘Patent Fair Use 2.0’ (New York University Law and Economics Working Papers, 2011).  Suzanne, Scotchmer, ‘Openness, Open Source, and the Veil of Ignorance’ (2010) American Economic Association.  Tadlock, Cory, ‘Copyright Misuse, Fair Use, and Abuse: How. Sports and Media Companies are Overreaching Their Copyright Protections’ (2008) 7 J. Marshall Rev. Intell. Prop. L.  Towse, Ruth, ‘Creativity, Copyright and the Creative Industries Paradigm’ (2010) KYKLOS, Vol. 63. No. 3.  Tushnet, Rebecca, ‘Economies of Desire: Fair Use and Marketplace Assumptions’ (2009) 51 Wm. & Mary L. Rev.  Tushnet, Rebecca, 'I Put You There: User-Generated Content and Anticircumvention' (2010) 12 Vand. J. Ent. & Tech. L.  Velásquez, Germán, ‘The impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) over access to essential medicines’ (2006) Centrale Sanitaire Suisse Romande.  Vogelti, Naomi Abe, ‘Rethinking Derivative Rights’ (1997) 63 Brooklyn Law Review.  Winner, Ellen P, ‘Right of Identity: Right of Publicity and Protection for a Trademark's Persona’ (1981) 71 Trademark Rep.

378

 Wong, Mary W. S., "Transformative" User-Generated Content in Copyright Law: Infringing Derivative Works or Fair Use?’ (2008-2009) 11 Vand J. Ent & Tech. L.  Wright, Robin, ‘The Three-Step Test and the Wider Public Interest: Toward a More inclusive Interpretation’ (2009) Vol. 12 The Journal of World Intellectual Property.  Wright, Brian D, ‘The Economics of Investment Incentives: Patents, Prizes, and Research Contracts’ (1983) 73 Am. Econ. Rev.  Yamey, Gavin ‘Us Trade Action Threatens Brazilian Aids Programme’ (2001) British Medical Journal, Vol. 322, No. 7283.  Yu, Peter K, ‘Access to Medicines, BRICS Alliances, and Collective Action’ (2008) American Journal of Law and Medicine.  Yu, Peter K, ‘Currents and Crosscurrents in the International Intellectual Property Regime’ (2004-2005) 38 Loy. L. A. L. Rev.  Yu, Peter K, ‘International Enclosure, the Regime Complex, and Intellectual Property Schizophrenia’, (2007) Mich. St. L. Rev.  Yu, Peter K., ‘The Global Intellectual Property Order and Its Undetermined Future’ (2009) The WIPO Journal, Vol. 1.  Yu, Peter K., 'Anticircumvention and Anti-Anticircumvention' (2006) Denver University Law Review, Vol. 84.  Zimmerman, Diane L. ‘Is There a Right To Have Something To Say? OneView of the Public Domain’ (2004) 73 Fordham L. Rev.  Zimmerman, Diane L., ‘Copyrights as Incentives: Did We Just Imagine That?’ (2011) 12 Theoretical Inq. L.

Dissertations

 Muhammed Sa’īd al-Būti, dawābit al-maslaha fi al-shari’a al-islamiyya (PhD Thesis, Faculty of Shari’a al-Azzhar University,1965)  Al-tholthy, Huda, Intellectual Property and Electronic Commerce (Master Research, Law School Tripoli University).

379

 Azmi, Ida Madieha BT. Abdul Ghani, 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)  Byrnes, Richard, Tripping In: How the TRIPS Agreement will Inﬂuence Innovation in Pharmaceutical Sector (Master Thesis, Maastricht and Oslo University, 2003-2004).  Kılıç Burcu, Boosting pharmaceutical innovation in the post-trips era; the real life lessons for developing world, (PhD Thesis Centre For Commercial Law Studies Queen Mary, University of London February 2011).  Olwan, Rami, Intellectual Property and Development: Theory and Practice (PhD Thesis, Queensland University of Technology, 2011).  Najem, Faraj, Tribe, Islam and state in Libya: analytical study of the roots of the Libyan tribal society and interaction up to the Qaramanli rule (PhD Thesis, the University of Westminster, 2004).  Shalgami, Husain H, Wasa’il himayat al-mulkiyya al-fikriyya fi al-fiqh al- islami wa al-qanūn al-wadʿi (PhD Thesis, al-Azhar University, 2004).

Explanatory Memorandums, Legislations and International Conventions

 Agreement on Trade-Related Aspects of Intellectual Property Rights adopted in 1994.  Arabic Convention for the Protection of Copyright, 1981  Australian Copyright Act 1968 (Cth).  Digital Millennium Copyright Act 1998.  Egyptian Copyright Law no 354/1954.  Egyptian Intellectual Property Law 86/2002.  Egyptian Patent Law no 132/1949.  Egyptian Trade Marks Law no 57/1939  The Model Law for the Protection of Copyright and Neighbouring Rights.  Explanatory Memorandum of Egyptian Copyright Law No 354/1954.  Explanatory Memorandum of the project of the Industrial Property Law.

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 Explanatory Memorandum for the Model Law for the Protection of Copyright and Neighbouring Rights (1998).  Explanatory Memorandum of New Libya IP Project  Libyan Copyright Law, 1968  Libyan Patent Law, 1959.  Libyan Trademark Law, 1954.  The Berne Convention for the Protection of Literary and Artistic Works 1886.  The Paris Convention for the Protection of Industrial Property 1883.  U.S. Patent Act -- 35 USCS Sects.  WIPO Copyright Treaty, 1996.  WIPO Performances and Phonograms Treaty, 1996.

Reports, Internet Materials and Other Sources

 Alghamidi, Nasser M, Protection of Intellectual Property in Islamic Jurisprudence and its Economic Implications http://hawassdroit.ibda3.org/t712-page  American Medical Association, Ethical Issues in Patenting Medical Procedures, available at the official website of the Association: http://www.ama-assn.org/resources/doc/code-medical-ethics/9095a.pdf  Amr, Hamdy, Survey of ICT and Education in Africa : Libya Country Report (World Bank, 2007).  Benkler Yochai, the New Open-Source Economics (Ted 2008) http://www.ted.com/talks/lang/en/yochai_benkler_on_the_new_open_source_ economics.html  Boyle, James, The Public Domain: enclosing the commons of the mind (RSA 2010) http://www.youtube.com/watch?v=TomFHHxXC4U  Bhagawati, Jadish, From Seattle to Hong Kong: Are we Getting Anywhere?, University of Columbia, http://www.columbia.edu/~jb38/papers/pdf/Bhagwati_Foreign_Affairs.pdf  Central Bank of Libya, Rules and Measures on Islamic Banking, http://cbl.gov.ly/ar/images/stories/islam/islamnote.pdf

381

 European Commission, Trade Sustainability Impact Assessment (SIA) of the EU-Libya Free Trade Agreement (October 2009)

 European Commission: Regional Agency for Technology and Innovation (ARTI), the Research and Innovation System in Egypt (2008) http://www.arti.puglia.it/fileadmin/user_files/download/Egitto_def.pdf  General Authority of Information, Statistics Book, (2009) http://www.gia.gov.ly/includes/FCKeditor/upload/pdf/kt2009.pdf  Hess, Carla, The Rise of Intellectual Property, 700B.C.- CE. 2000 : An Idea in the Balance (2002) Daedalus: Spring http://mitpress.mit.edu/journals/pdf/daed_131_2_26_0.pdf

 Hughes, Bettany, When the Moors Ruled in Europe (Directed by Timothy Copestake, 2005) http://www.youtube.com/watch?v=PM8HnvuKbAo  Usmani Mufti T, Copyright According to Shari’a available online at: http://www.albalagh.net/qa/copyright.shtml  International Islamic Fiqh Academy, Resolution No 43 (5/5) 1988 Regarding Incorporeal Rights, http://zulkiflihasan.files.wordpress.com/2009/12/majma- fiqh.pdf  United Nations, Millennium Development Goals (2000) http://www.un.org/millenniumgoals/  United Nations Development Program, Human Development Report 1990 http://hdr.undp.org/en/reports/global/hdr1990/chapters  Report on the World Summit for Social Development (April, 1995) http://www.un.org/documents/ga/conf166/aconf166-9.htm  Homfeldt Hans Günther and Reutlinger Christian, ‘Social Development’ (2008) Social Work and Society Online Journal, Vol 6, No 2, available online at http://www.socwork.net/sws/article/view/70/372  Dictionary of Development Organisations http://www.devdir.org/  Arab Human Development Report http://www.arab-hdr.org/  Aljazeera Channel, figh al-imar (Jurisprudence of Development) al-shari’a wa al-haya TV program, 25/04/2010 (Yusuf al-Qaradawi) available online at: http://www.youtube.com/watch?v=VUbZo9kfO40&list=PL39DE8A9DC37B C819&index=139&feature=plpp_video

382

 National Law Center for Inter-American Free Trade, Strong Intellectual Property Protection Benefits the Developing Countries, available online at: http://natlaw.com/interam/mx/ip/sp/spmxip11.htm  Lessig, Lawrence, Laws that Choke Creativity (Lecture posted on Ted website in November,2007) http://www.ted.com/talks/lang/en/larry_lessig_says_the_law_is_strangling_cr eativity.html  Protalinski, Emil, Victim of Wikipedia: Microsoft to shut down Encarta’, The Guardian, 31/03/2009, available online at: http://www.guardian.co.uk/media/pda/2009/mar/31/microsoft-wikipedia  World Intellectual Property Organisation WIPO Intellectual Property Handbook (2004)

 World Health Organisation, Fact sheets: Infectious diseases (2013)

http://www.who.int/topics/infectious_diseases/factsheets/en/index.html

 World Health Organisation, Global Health Observatory Data Repository - WHO African Region http://apps.who.int/ghodata/?region=afro  World Health Organisation, Tuberculosis Fact sheet (March 2012) http://www.who.int/mediacentre/factsheets/fs104/en/index.html  WHO, UNAIDS and UNICEF, Progress Report on HIV/AIDS Response (2011) WHO, http://www.who.int/hiv/pub/progress_report2011/en/  World Health Organisation, WHO Model List of Essential Medicines 17th list (March 2011) http://whqlibdoc.who.int/hq/2011/a95053_eng.pdf.  World Health Organization, Equitable Access to Essential Medicines: A Framework for Collective Action, (March 2004) 1, available online at: http://whqlibdoc.who.int/hq/2004/WHO_EDM_2004.4.pdf  Report of the Commission on Intellectual Property Rights (CIPR Report), Integrating Intellectual Property Rights and Development Policy (2002)  United Nations Educational, Scientific and Cultural organisation (UNESCO), Sustainabl Book Provision http://www.unesco.org/education/blm/chap1_en.php  Harvard University, the Faculty Advisory Council, Faculty Advisory Council Memorandum on Journal Pricing (April 17, 2012)

383

http://isites.harvard.edu/icb/icb.do?keyword=k77982&tabgroupid=icb.tabgrou p143448  International Chamber of Commerce (ICC), Intellectual Property: Powerhouse for Innovation and Economic Growth http://www.iccwbo.org/uploadedFiles/BASCAP/Pages/IP_Powerhouse%20for %20Innovation%20and%20Economic%20Growth%20(2).pdf  Chomsky, Noam, Notes of NAFTA: "The Masters of Man" (March, 1993) available online at: http://www.chomsky.info/articles/199303--.htm  Locke, John, The Second Treatise of Civil Government (1690) http://www.constitution.org/jl/2ndtreat.htm  Rawls, John, Stanford Encyclopaedia of Philosophy http://plato.stanford.edu/entries/rawls/#LifWor  Tawfik, Myra. J., ‘International Copyright Law and 'Fair Dealin' as a 'User Right' (April – June 2005) e-Copyright Bulletin, 6 http://unesdoc.unesco.org/images/0014/001400/140025e.pdf  Hargreaves, Ian, Digital Opportunity: A Review of Intellectual Property and Growth (2011) http://www.ipo.gov.uk/ipreview-finalreport.pdf  Hess, Charlotte and Ostrom, Elinor include: A Framework for Analyzing Scholarly Communication as a Commons (2004), Digital Library of the Commons (United States) http://en.scientificcommons.org/1544465;  A framework for analysing the microbiological commons (UNESCO 2006) http://dlc.dlib.indiana.edu/dlc/bitstream/handle/10535/6433/microbiological% 20commons.pdf?sequence=1  GNU GENERAL PUBLIC LICENSE, Version 3 http://www.gnu.org/licenses/gpl.html  Creative Licences on http://creativecommons.org/choose/  National Institutes of Health, Public Access Policy, http://publicaccess.nih.gov/;  Drahos Peter, Access to Knowledge: Time for a Treaty? (No. 4, April 2005 ) www.ictsd.org  Stiglitz, Joseph E., ‘Intellectual-property rights and wrongs’ The Daily Times, 2005, http://www.dailytimes.com.pk/default.asp?page=story_16-8-2005_pg5_12

384

 Stiglitz, Joseph E, Public Policy for Knowledge Economy (Department for Trade and Industry and Center for Economic Policy Research London, U.K. January 27, 1999) http://akgul2.bilkent.edu.tr/BT-BE/knowledge-economy.pdf  Stiglitz, Joseph, Give Prizes Not Patents, NEW SCIENTIST, Sept. 16, 2006, http://www.bcs.rochester.edu/people/eorhan/2006_New_Scientist.pdf  Story, Alan, ‘Balanced’ Copyright: Not A Magic Solving Word (27 February 2012) Intellectual Property Watch http://www.ipwatch.org/2012/02/27/%E2%80%98balanced%E2%80%99- copyright-not-a-magic-solving-word/  Suber, Peter, Open access and copyright, the SPARC Open Access Newsletter, issue #159 (July 2, 2011) available online at http://www.earlham.edu/~peters/fos/newsletter/07-02-11.htm#copyright  Suber, Peter, Knowledge as a public good (SPARC Open Access Newsletter, issue #139, 2009) http://www.earlham.edu/~peters/fos/newsletter/11-02- 09.htm#publicgood  Suber, Peter, Open Access Overview: Focusing on open access to peer- reviewed research articles and their preprints (October 7, 2012) http://www.earlham.edu/~peters/fos/overview.htm  Suber, Peter, Praising progress, preserving precision (SPARC Open Access Newsletter, issue #77 September 2, 2004) http://www.earlham.edu/~peters/fos/newsletter/09-02-04.htm#progress  Suber, Peter, Ensuring Open Access for Publicly Funded Research (BMJ, 2012) http://www.bmj.com/content/345/bmj.e5184  UNESCO, Forum on the Impact of Open Courseware for Higher Education in Developing Countries: Final Report (2002) http://unesdoc.unesco.org/images/0012/001285/128515e.pdf  Mohammed Bin Rashid Al Maktoum Foundation (MBRF) and The United Nations Development Programme / Regional Bureau for Arab States (UNDP/RBAS), Arab Knowledge Report (2010/2011) http://www.arab-hdr.org/akr/AKR2010-2011/English/AKR2010-2011-Eng- Foreword-team-Contents.pdf

 Yardimic, Emre Kerime and Kan Ocan, Tips for Patent Enforcement (Turkey Sponsored Editorial, 2011)

385

http://www.managingip.com/Article/2893437/Tips-for-patent- enforcement.html>

 European Commission, Trade Sustainability Impact Assessment (SIA) of the EU-Libya Free Trade Agreement (October 2009) http://www.eulibya- sia.org/media/docs/EU-Libya%20SIA%20Final%20Report.pdf.  International Copyright, U.S and Foreign Commercial Service and U.S. Department of State, Doing Business with Libya: 2008 Country Commercial Guide for U.S. Companies (2008) http://www.buyusa.gov/libya/en/libyaccg2008.pdf.  World Economic Forum, The Global Competitiveness Report (2012–2013) http://www3.weforum.org/docs/WEF_GlobalCompetitivenessReport_2012- 13.pdf  Nabhan, Victor, Study on Limitations and Exceptions for Copyright for Educational Purposes in the Arab Countries (2009) http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=130302  WTO News, Libya given green light to negotiate WTO membership (28/7/2004) http://www.wto.org/english/news_e/news04_e/libya_stat_27july04_e.htm  Ministry of Economy, Summary of the Reports of the High Committee on the Accession to WTO, (22/03/2006) (On file with author).  General Planning Council, Libya and WTO (On file with author).  General People’s Committee, the Report of Service Sector on the Accession to WTO (January-2003) (On file with author).  Ministry of Energy, Sectoral Report on the Effects of the Accession to the WTO (07/09/2004) (On file with author).  European Union External Action, Association Agreements http://eeas.europa.eu/association/index_en.htm

 European Commission, Trade, Countries and Regions: Libya, http://ec.europa.eu/trade/creating-opportunities/bilateral- relations/countries/libya/  EU Neighbourhood Information Centre, EU suspends framework agreement talks as Libya reaches 'point of no return

386

http://www.enpiinfo.eu/mainmed.php?id_type=1&id=24232#sthash.54flaeFk. dpuf

 UNCTADT, the TRIPAS Agreement and Developing Countries (UN, New York and Geneva, 1997)  Oxfam, All costs, no benefits: How TRIPS-plus intellectual property rules in the US-Jordan FTA affect access to medicines (Oxfam Briefing Paper, March 2007) http://donttradeourlivesaway.files.wordpress.com/2011/01/all-costs-no- benefits.pdf  Libyan Negotiating Team on EU Libya FTA, Report on IP chapter (5/11/2010). (on file with author).  Porte Michael and Yergin Daniel, Competitiveness of Libya: A Report for National Planning Council (2006)  National Planning Council (Libya), Strategic Project for Capacity Building and Human Development, (November, 2007) 67 (On file with author)  WIPO, Development Agenda for WIPO (2007) http://www.wipo.int/ip- development/en/agenda/  WIPO, WIPO Development Agenda: Background (2004-2007), http://www.wipo.int/ip-development/en/agenda/background.html  UNCTAD-ICTSD, UNCTAD-ICTSD Project on IPRs and Sustainable Development, Intellectual Property Rights: Implications for Development (2003)  Consumers International, The statement on Provisional Committee on Proposals Related to A WIPO Development Agenda (2006), available at http://bit.ly/HOhBzv  General Secretary of Planning, Economic and Social Surveillance (2005)  White House, Increasing Access to the Results of Federally Funded Scientific Researc (2013) Available online at: http://www.whitehouse.gov/sites/default/files/microsites/ostp/ostp_public_acc ess_memo_2013.pdf  Economic Cooperation and Development (OECD), National Innovation Systems (OECD, 1997) Available online at: http://www.oecd.org/science/inno/2101733.pdf

387

 Australian Government, Powering Ideas: An Innovation Agenda for the 21st Century (2009) http://www.innovation.gov.au/Innovation/Policy/Documents/PoweringIdeas.p df  National Agency for Scientific Research (NASR), Study on the Development of National Innovation System (NIS) for Libya (2012) 17-18 (on file with author);  NASR, Internal Assessment Report of NASR and its Affiliated Research Centres (2011) 24 (on file with author).  World Bank Data, http://data.worldbank.org/indicator.  World Bank’s Knowledge Economy Index (KEI), http://info.worldbank.org/etools/kam2/KAM_page5.asp#c54  Australian Business Foundation, National Innovation Systems: Finland, Sweden and Australia compared (2005) http://ict-industry-reports.com/wp-content/uploads/sites/4/2009/02/2005- national-innovation-systems-compared-sweden-finland-australia-abf-nov- 2005.pdf;

 Ministry of Education, Statistics on Primary Education (2013) http://www.edu.gov.ly/statistics-numbers/86-arabic/issued-by-the- ministry/2866-.html  Final Report of the National Infrastructure Taskforce (Canberra: Department of Education,. Science and Training, 2004).  UNCTAD, the Information Economy Report (2012).  UNCTAD, Measuring the Impacts of Information and Communication Technology for Development, United (Nations publication, 2011,New York and Geneva).  European Business and Innovation Centre Network, The Smart Guide to Innovation Based Incubators (2010) http://ec.europa.eu/regional_policy/sources/docoffic/2007/working/innovation _incubator.pdf  Al-Asswad Muhammed, Innovation Incubators: the Future of Development Starts from SMEs (Libya Forum, 2007)

388

http://www.libyaforum.org/archive/index.php?option=com_content&task=vie w&id=3992&Itemid=1  Economic Planning Unit, Prime Minister's Department, Tenth Malaysia Plan 2011-2015 (2010) http://www.undp.org.my/files/editor_files/files/reports%20and%20publication s/RMK10_Eds.pdf  World Bank, Global Economic Prospects and the Developing Countries, (The World Bank, 2002).

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