Islamic Intellectual Property

56 Pages Posted: 1 May 2024

Date Written: April 29, 2024

Abstract

While intellectual property (IP) law is an established legal framework present in the United States (US) and many Western countries, its contributions in balancing among competing policies often fall short of expectations. Islamic law provides an alternative legal framework to promote balance among private property rights to recognize creative and inventive works and fair distribution in a society to lessen harm with issues concerning access and equity. Islamic law is part of the legal or belief system for nearly one-quarter of the world’s population, yet it has not influenced conceptual and normative insights for Western legal systems. Furthermore, even Islamic legal systems have not considered proper theological considerations within their IP laws, which largely are replicas of Western legal systems and not reflective of Islamic principles. By providing a theory of Islamic intellectual property (“Islamic IP”), this Article provides three major contributions: (1) conceptualization of a pluralistic and balanced approach to Islamic IP; (2) demonstration of how Islamic IP embodies value pluralism while recognizing private property and enabling fair distribution through limitation of excesses, consideration of compassion, and promotion of charity; and (3) application of Islamic law to Western IP legal systems pertaining to copyright law’s transformative fair use and patent law’s patentable subject matter doctrines. As a corollary, this Article shows that there are potential advantages to applying principles of Islamic IP to Western legal systems based on the normative objective of balance in Islamic IP. Drawing on these insights, this Article explores the possible incorporation of Islamic IP to Western IP legal systems to promote reformation. Finally, this Article provides legal and policy decision-makers with a more robust understanding of how Islamic IP can contribute in a myriad of ways to raising the standard of living in a society while promoting innovation.

Keywords: Intellectual Property, IP theory, copyright law, patent law, Islamic Law, fiqh, Shariah, innovation, religion, monotheism, private property, distribution, value pluralism, balance, limitations, compassion, charity, transformative fair use, patentable subject matter, Islamic economics, Islamic ethics

JEL Classification: K11

Suggested Citation

Ebrahim, Tabrez, Islamic Intellectual Property (April 29, 2024). Seton Hall Law Review, Vol. 54, No. 4, 2024, Available at SSRN: https://ssrn.com/abstract=4811521

Tabrez Ebrahim (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States

HOME PAGE: http://https://law.lclark.edu/live/profiles/16710-tabrez-ebrahim

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