Intellectual Property Laws and Islam in Malaysia. Azmi, Ida Madieha BT Abdul Ghani
Total Page：16
File Type：pdf, Size：1020Kb
Intellectual property laws and Islam in Malaysia. Azmi, Ida Madieha BT Abdul Ghani The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without the prior written consent of the author For additional information about this publication click this link. http://qmro.qmul.ac.uk/jspui/handle/123456789/1418 Information about this research object was correct at the time of download; we occasionally make corrections to records, please therefore check the published record when citing. For more information contact [email protected] INTELLECTUAL PROPERTY LAWS AND ISLAM IN MALAYSIA BY IDA MADIEHA BT. ABDUL GHANI AZMI MAY 1995 THESIS SUBMITFED TO THE INTELLECTUAL PROPERTY LAW UNIT OF THE CENTRE OF COMMERCIAL LAW STUDIES, QUEEN MARY & WESTFIELD COLLEGE, LONDON, IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY. ( \ 1 ABSTRACT This study is undertaken on the premise that Islam and Islamic law is to be taken into serious consideration in any future legislative reform of laws in Malaysia. Islam being the religion of the country and the strong religious sentiment of the Muslims (who form the majority in Malaysia) cannot be overlooked or dismissed lightly by the legislators in Malaysia. Reformation of intellectual property laws is timely, as we are now approaching to the dateline set by GATF-Trips agreement which aim is to improve our standard of intellectual property protection. This study seeks to analyze and evaluate the current legislation pertaining to intellectual property in Malaysia in terms of the philosophy and rules governing the existence, ownership and exercise of these rights and their consistency and inconsistency with Islam and Islamic law. The main objective of this study is to prove that a coherent and logical conceptual framework of ownership of intellectual property can be derived from an Islamic perspective which not only offers the basis of rights but also defines the scope of these rights. From the point of ownership of rights, support can be obtained from the normative framework of property rights within the traditional classification of 'mal' (property) and 'haqq al-milkiyyah' (ownership rights) under Islamic law. From the point of exercise of rights, the exact scope can be defined from the analysis of fundamental concepts which have been developed by Muslim jurists. It has been established that Islam and Islamic law offers a sound and systematic paradigm, which in deeper analysis, can satisfy both our current obligations under international treatises, as well as our responsibility to practise our religion to the fullest. 11 ACKNOWLEDGEMENTS It gives me great pleasure to recognise the help of many people, without whose assistance, this study would not be completed. My deepest appreciation goes to my supervisor, Alison Firth, not only for her guidance, encouragement, comments and many criticisms but also her personal support throughout the last three and a half years. To Ian Edge of the School of African and Oriental Studies whose expert assistance and counseling has helped in making this study a fruitful one. I am also indebted to Prof. Gerald Dworkin for his support and intellectual stimulus to take up this study. Along with my particular gratitude to many academic staff of other Malaysian universities and Institutions of research and higher learning, who have lent their wisdom and skills to my effort, in particular Prof. Syed Naguib al-Attas, Prof. Ahmad b. Ibrahim, Prof. Hashim Kamali, Assoc. Prof. Abdullah Abu Bakar and Dr. Zainuddin Jaafar. My appreciation also goes to the officers of the Intellectual Property Unit in the Ministry of International Trade in Kuala Lumpur, who had tended considerable help and assistance in providing me with materials relevant for my thesis. Not to mention, I am extremely fortunate to have the unfailing support and encouragement of my husband, Mohamed Aslam b. Mohamed Haneef and my four year old son, Ahmad Sufyan, for putting up with a non-conventional mother for the past three and a half years. Finally to the Public Service Department for providing me a scholarship and the International Islamic University for giving me leave to take up this study. 111 TABLE OF CONTENTS AB STRACT ACKNOWLEDGEMENT 11 TABLE OF CASES vii TABLE OF STATUTES xix TABLE OF ABBREVIATIONS xxviii GLOSSARY xxx NOTE ON TRANSLITERATION xl INTRODUCTION 1 Problem defined and statement of intent ..................1 2 Objectives of the study .............................2 3 Scope of study and the outline of chapters.................3 4 Methodology, Sources and Limitations...................6 CHAPTER ONE: DEVELOPMENT OF ISLAM AND ISLAMIC LAW INMALAYSIA ............................................13 1 Introduction.................................... 13 2 The definition of Shari'ah and sources of law............. 14 3 Malay states before the advent of British control ........... 16 4 Malay States under the administration of British ........... 20 5 Islam in contemporary Malaysia ...................... 23 6 Future of Islam and Islamic law in Malaysia.............. 25 7 Conclusion..................................... 28 CHAPTER TWO: INDUSTRIALIZATION, INTELLECTUAL PROPERTY AND INTERNATIONAL TRADE...................... 29 1 Introduction .................................... 29 2 The Straits Settlements (1791- 1866) ................... 31 2.2 Post 1886-1946............................. 34 2.2.1 Patents ................................... 34 2.2.2 Copyright ................................. 36 2.2.3 Trade Marks ............................... 38 2.2.4 Designs .................................. 41 3 Federated Malay States ............................ 42 3.1 Copyright ................................. 43 3.2 Trade Mark & Designs ....................... 44 4 Unfederated Malay States ........................... 44 4.1 Patents ................................... 45 4.2 Copyright, Trade Marks And Designs ............. 46 5 Sarawak & North Borneo ........................... 47 5.1 Copyright ................................. 47 5.2 Patent ................................... 48 5.3 Trade Marks and Designs ..................... 49 6 The Federation of Malaya & Post Independence ........... 50 iv 7 Conclusion . 51 CHAPTER THREE : THE CONCEPT OF 'MAL' AND INTELLECTUAL PROPERTY..............................................53 1 Introduction.................................... 53 2 Termsand definition .............................. 55 3 Classification of 'things' and related terms............... 57 4 The meaning of 'ma!' under the established rules of Fiqh (Islamic Jurisprudence) ............................ 60 5 The position of usufructuary rights 'manIa 'ah' and intellectual creation under the classification of 'ma!' according to the schoolsof jurisprudence............................ 63 5.1 The Hanafi school of jurisprudence ............... 63 5.2. The Shafi'i school of jurisprudence............... 65 5.3 The Hambali school of jurisprudence.............. 66 5.4 The Maliki school of jurisprudence............... 66 5.5 Views of other jurists on the concept of property...... 67 6 Jurisprudential objections against the recognition of Intellectual Property....................................... 69 7 The possible conflicts between the recognition of Intellectual Property and the religious objections against concealment of 'jim' or knowledge................................ 71 8 Nature of property right in Intellectual Property ........... 81 9 The distinction between protectable and non protectable subject matter........................................ 82 10 Accepted characteristics of 'ma!' ...................... 82 11 Transmissibility, alienability and inheritability ............ 84 12 Distinction between the intangible right in Intellectual Property and the property rights in the physical embodiments 88 13 The rights of the Intellectual Property owner and others ...... 90 13.2 Transfer of rights to the consumer................ 91 14 Conclusion..................................... 93 CHAPTER FOUR: 'HAQQ', 'MJLKIYYAH' AND INTELLECTUAL PROPERTY 94 1 Introduction .................................... 94 2 The normative framework of labour theory in Western jurisprudence................................... 96 3 The Concept of 'haqq' and 'miikiyyah' in Islam .......... 102 3.1 'Haqq' and 'miikzyyah' in the context of the Qur'an 102 3.2 Definition of 'haqq' and 'milkiyyah' by jurists ...... 104 3.3 Nature of 'haqq' in Islamic scholarship ......... 107 4 The basis of ownership of Intellectual Property in Islam; the labourapproach................................. 112 4.1 The basis of 'amal' in the Qur'an ............ 112 V 4.2 The discussion on 'ama!' as a basis of rights in contemporary works..........................113 5 The basis for the extension of the labour theory to justify rights overIntellectual Property..........................120 6 Conclusion...........................125 CHAPTER FIVE: COPYRIGHT : INCENTIVE THEORY AND DISSEMINATION OFWORKS .............................................127 1 Introduction................................... 127 2. Moral justifications of copyright in historical context in Western literature...................................... 128 2.1 The historical groundings of moral ownership of 'ideas' inIslamic scholarship........................ 131 3.1 The evolution of moral right principles in common law jurisdictions.............................. 135 3.2 The legal and juridical basis of moral rights