A discordant dichotomy or business as usual?
The Custodian of the Two Holy Mosques, Fahad bin Abdul Aziz Al Saud, king of Saudi Arabia from 1982 to 2005, promulgated in the Trademark Law: “The following signs, emblems, flags, and others as listed below, shall not be considered or registered as trademarks: Any expression or sign or drawing violating religion or which is identical or similar to a symbol of religious nature.”
Likewise, the Patent Regulation of the Cooperation Council for the Arab States of the Gulf says: “An invention shall be patentable ... if it is ... not contrary to the laws of Islamic Shariah, or public order, or to morality observed in the Cooperation Council States, whether that was pertaining to new products, industrial processes, or to manufacturing methods.”
Similar provisions can be found in many intellectual property laws set up by states that follow Islam, either by constitution or because the majority of their population is Muslim. The latter is the case in the following 56 territories: Afghanistan, Albania, Algeria, Azerbaijan, Bahrain, Bangladesh, Brunei, Burkina Faso, Chad, Comoros, Djibouti, Egypt, Eritrea, Gambia, Gaza, Guinea, Guinea Bissau, Indonesia, Iran, Iraq, Jordan, Kazakhstan, Kosovo, Kurdistan, Kuwait, Kyrgyzstan, Lebanon, Libya, Malaysia, Maldives, Mali, Mauritania, Mayotte, Morocco, Niger, Nigeria, Oman, Pakistan, Qatar, Saudi Arabia, Senegal, Sierra Leone, Somalia, Sudan, Syria, Tajikistan, Tunisia, Turkey, Turkmenistan,
United Arab Emirates, Uzbekistan, West Bank, Western Sahara and Yemen (India counts more than 160 million Muslims, but as a minority).
In order to get a better picture of the possible repercussions of religion on IP rights, we will briefly delve into the concept of shariah, analyse its impact on IP, and compare this to the situation in countries in the west.
What is shariah?
In classical Arabic, the noun shariah denotes “a path leading to a watering place”. Considering that water symbolises (eternal) life, and that the path thereto has been codified by the three Abrahamic religions (jointly also called ‘book religions’), the term shariah has been adopted to collect all Islamic laws under one tenet.
There are two primary sources for the shariah: the Holy Quran and the Sunnah, ie, the examples given by the life and teachings of Prophet Muhammad. Both have at length been elucidated in deep treatises by different respected scholars, which — from way back then until today — remain the utmost authorities in all questions of their interpretation (fiqh).
As a third fountain, the consensus of the leading scholars (ijma) is sought, and, in the last resort, analogy (qiyas) may be used.