Q. How was the issue of intellectual property dealt with in Islam? And what is the juristic view regarding this property?

A. Muslim jurists, especially Shiites, usually do not adopt this notion, probably because it was not raised as an issue when they wrote their juristic studies, since it is considered a relatively new legal issue. The jurists used to discuss the ownership from the point of view of the need for the owner to be sane .There were also questions raised about whether the state or the parties and other organizations could be considered owners , and the wide spread belief was that they cannot be considered as such.

That is why many jurists say that the state's property is a property whose owner is unknown, since the state cannot own, with some even having reservations regarding the unlawful sources of some the state's money.

Accordingly: since parties and states cannot own, dealing with their money should be administered by the religious authority. That is why that when the believers want to spend the salary they take from the state or when they pay the state certain taxes they take the permission of the just ruler.

Saying that the state and such parties do not own has led to issuing certain fatwas that considers taking over the state's money as lawful. This is what happened in Iraq where many people have confiscated the government's resources , houses and vehicles since they are not owned by anybody.

But we do not agree with this view, and we believe that the state does own, since ownership is a rational concept and one that people have generally agreed on, meaning that the people tend to organize their economic dealings and exchanges according to a certain understanding that serves their general interests. Then these understanding would turn into laws.

When this reality is acknowledged by the rational people, it acquires a certain legitimacy, thus the ownership of the state is similar to the ownership of the individual in that it has acquired the acceptance of the people. In this respect, a certain problem could be raised regarding the ownership of the mosque or any organization of certain lands or properties. It is true that the mosque does not have an intellect or a mind and can not be considered an owner, but the lands and properties could be described as belonging to it and therefore they are treated, since ownership is a matter of consensual and rational agreement ,as properties of the mosque. But the man (men) in charge of the affairs of the mosque is the one who supervises how to invest or maintain them.

In this context, one of the issues that originated in the West and resounded in the Islamic world is the issue of intellectual property; that is when an intellectual product has benefits in the field of investment or legal exchange. We noticed that several states have passed laws to organize these exchanges considering the effort made by an individual or an institution is an effort whose results or products are personal properties that cannot be stolen or transgressed. Such an effort can be sold, compensated for or rented.

But it so far seems that the majority of the jurists do not acknowledge intellectual property and believe that an invention made by any individual could be taken and used by any one else, and the inventor does not have the right to prevent them from doing so. This also applies to books whether regarding the authors or the publishing houses. The same thing goes to a poem, if it is to be turned into a song and the like. Since they believe that the legitimacy of intellectual property should be derived from Islamic legal sources which does not acknowledge such a right. Thus if I like a book I can reprint it and if I like a poem I can write a melody for it and sing it… etc. This is the general Islamic jurisprudent theory, or at least , the Shiite one, regarding this issue.

But since I believe that the issue of ownership of intellectual property is based on rationalism and conventional agreement since rational people have, even before the laws were made, tended to organize their lives through certain agreements or mutual understandings, including the treatment of intellectual products us properties if they yield benefits, just as the ownership of a house, a garden or useful machines that produce benefits…

Property, as the jurists say, is a concept based on a rational definition, by which the rational people have agreed that it is any thing that has a monetary value, or anything that generates common benefits. Thus as we considered that house, the garden, the car and… as money, we also consider the book to be money, in that is owned by the author or the publisher. The same thing goes to inventions.

Thus, when the people of sound mind consider the intellectual product as money and consider the producer as its owner, and they see that there is relationship between ownership and money, then this product is said to be owned and acquires all the rights of ownership including considering taking possession of it without the concession of the owner as a act of theft. Consequently it is subjected to commercial dealings as selling renting, investing and the like.

There are also some relatively modern scholars who share our view. But we say that intellectual property is legal only in the communities that have endorsed it, since there are certain societies in the world that do not acknowledge it.

Nevertheless most societies have acknowledged intellectual property whether by law or by social norms, with the people generally recognizing it in their dealings, making it a legal from of ownership with all the rights and consequences it yields or implies.