*THE COPYRIGHT HAQ.*
Allah Ta`ala has created the world and whatever it contains for human utilities. Some utilities are available easily at man`s reach but some are concealed and need effort to attain it. Fruits, mushrooms, water, air etc are available to man`s reach. But Allah Ta`ala has a sunnah to give value to most items by concealing them and established efforts to them. Raw materials very useful for man like gold, silver, uranium, petrol, cobalt, gas etc are hidden in the ground so that man take time and effort to extract them. Some prophets had the privilege of having some metals subjected easily to them. Like Suleiman/Solomon a.s. had copper subjugated to him: ‘’And We caused a stream of copper to flow for him.’’(34:12) But we are instructed to make the effort of fishing in the sea, hunting in the forest and farming the land to achieve a comfortable standard of living. It is the same sunnah of Allah Ta`ala to conceal the accepted du`a time every Friday and the Night of Qadr during Ramadhaan. The reason behind is the same that man make effort whole Friday or all the odd nights of last 10 days of Ramadhaan to achieve that accepted time.
Allah Ta`ala wished that man do effort to extract raw materials and also do achievements even the achievement of climbing the sky.(Read Verse 33 of Surah 55). Likewise the beloved prophet Swalallahou `Alaihi Wasallam told us to work on people of all continent because they have different potentials of benefitting the Ummah.
The Shariah has come with a justice to protect someone who dug a well that his neighbours cannot dig another well except at a set distance. This is called Hareem in fiqh books. This is set because because digging another well too near will cause harm to the water of the first one. Although the second one is its own private property, etc.
Furthermore, the shariah protects anyone`s Haq be it an intellectual property, a recipe book, a trade mark or tangible things. If the finder claim and excise his copyright Haq, then he should not be trampled upon as per his right. Any right taken without authorization is questionable on the day of Qiyaamah. Yes, if the finder or the writer does not apply rigidity as per his copyright haq, then there is relaxation to this issue.
We find that some ulamas have identified the copyright Haq as a shariah legislation. Others have not yet ingested that Haq. So I wish to top up the findings of those ulamas that recognize the copyright Haq. While those that believe that even if someone is claiming his copyright haq, we can still use the work/findings/software etc without their Haqs, then be prepare to affront their pursuer in case they are called to that effect on the day of qiyamah. Because either it is a claimed Haq or it is not. There can be no relaxation to that issue.
First of all, a Hikmah or a beneficial finding can be claimed by his finder and hence copyrighted. The first hadith that will be brought is the following:
عَنْ سَعِيدٍ الْمَقْبُرِيِّ عَنْ أَبِي هُرَيْرَةَ قَالَ
قَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ الْكَلِمَةُ الْحِكْمَةُ ضَالَّةُ الْمُؤْمِنِ حَيْثُمَا وَجَدَهَا فَهُوَ أَحَقُّ بِهَا
‘‘The word of wisdom is a lost item of the mu-min. Wherever found, he has MORE RIGHT over it.’’(Ibn Majah;Tirmizi)
Although the narration is weak, but it is strengthened by being mentioned in many hadiths books. The words of Rasouloullah Swalallahou `Alaihi Wasallam has multi-angle meanings. Over here, one meaning may be that if someone finds a word of wisdom, then he has more right over his findings than anyone else.
Another place where we find that Rasouloullah Swalallahou `Alaihi Wasallam protected the right of the finder of the Hikmah and denied to the copier his demand to copy is found in Bukhari:
حدثني سعيد بن المسيب أن أبا هريرة رضي الله عنه قال
سمعت رسول الله صلى الله عليه وسلم يقول يدخل الجنة من أمتي زمرة هي سبعون ألفا تضيء وجوههم إضاءة القمر فقام عكاشة بن محصن الأسدي يرفع نمرة عليه قال ادع الله لي يا رسول الله أن يجعلني منهم فقال اللهم اجعله منهم ثم قام رجل من الأنصار فقال يا رسول الله ادع الله أن يجعلني منهم فقال رسول الله سبقك عكاشة
It is reported that Rasouloullah Swalallahou `Alaihi Wasallam was stating there will be more than 70000 people of this Ummah that will enter Jannah with their faces shining like moon…so a Sahabah named Ukkaashah stood and said: ‘Ya Rasouloullah! Make du`a that I become one of them.’ So Rasouloullah Swalallahou `Alaihi Wasallam made that dua. Immediately after that, another sahabah wished to copy Ukkashah and made the same request of du`a. Rasouloullah SAW negated and stated: ‘Ukkashah has surpassed you.’(Bukhari)
It is understood over here that the wisdom that Ukkashah achieved will not be given to others. A copyright of an effort be it intellectual or a writing can be given and claimed by the finder or the writer.
Furthermore, Allah Ta`ala gives the Haq and right of administration to the founder of ZamZam. Allah Ta`ala made the means to the river source ZamZam hazrat Hajirah and Isma`eel a.s. When water started to source out of the soil, it started to run out like a river. But Hajirah a.s. said ZamZam: ‘Stay here’. So it became a well. It is reported in Bukhari that if Hajirah would have not said ZamZam, then the ZamZam would have been a river running down in Makkah.(Bukhari) Hajirah a.s. has been given that right to administer the shape of the source that she and her son were means of this miracle.
عن أيوب وكثير بن كثير يزيد أحدهما على الآخر عن سعيد بن جبير قال قال ابن عباس رضي الله عنهما
قال النبي صلى الله عليه وسلم يرحم الله أم إسماعيل لو تركت زمزم أو قال لو لم تغرف من الماء لكانت عينا معينا وأقبل جرهم فقالوا أتأذنين أن ننزل عندك قالت نعم ولا حق لكم في الماء قالوا نعم
Furthermore in the same Hadith of Bukhari, Hazrat Hajirah a.s. imposed her right Haq over the ZamZam well when tribe Jurhum wished to stay in Makkah. ‘’You people will have no right whatsoever over the water.’’ They accepted to this imposition.
Finally, my respected ustaad Mufti Radha ul Haq damat barakatuhu explained to us that a Haq or a right need not be tangible for its claim or its sale. He stated that on the following masla:
وَصَحَّ بَيْعُ حَقِّ الْمُرُورِ تَبَعًا ) لِلْأَرْضِ ( بِلَا خِلَافٍ وَ ) مَقْصُودًا ( وَحْدَهُ فِي رِوَايَةٍ )
‘’It is permissible to sell the right access of a road due to its attachment to the land.’’(HAskafi/Hidayah)
وَمِنْ هُنَا عُرِفَ أَنَّ الْمُرَادَ مَا إذَا لَمْ يُبَيِّنْ مِقْدَارَ الطَّرِيقِ وَالْمَسِيلِ ، أَمَّا لَوْ بَيَّنَ حَدَّ مَا يَسِيلُ فِيهِ الْمَاءُ أَوْ بَاعَ أَرْضَ الْمَسِيلِ مِنْ نَهْرٍ أَوْ غَيْرِهِ مِنْ غَيْرِ اعْتِبَارِ حَقِّ التَّسْيِيلِ فَهُوَ جَائِزٌ بَعْدَ أَنْ يُبَيِّنَ حُدُودَهُ ا هـ ( قَوْلُهُ تَبَعًا لِلْأَرْضِ ) يُحْتَمَلُ أَنْ يَكُونَ الْمُرَادُ تَبَعًا لِأَرْضِ الطَّرِيقِ ، بِأَنْ بَاعَ الطَّرِيقَ وَحَقَّ الْمُرُورِ فِيه
In fact it is further explained that if the definition of right or a haq is delimited, then it can be traded. Access is intangible and yet can be sold under the Hanafi school of thought. The runway of the water also can be sold if defined. Tangibility or non tangibility is not important, but rather the haq or right should be well defined.
That is why it is legal and shariat wise to keep and sell the copyright haq of a book or a software, a scientific finding etc. If the person is claiming his copyright Haq, then he should not be trampled upon.
Those looking for facility should know that Shariah protects a fisherman`s fish that accidentally fell in the sea after it was fished out. The fish is in the sea and yet owned! Shariah protects the access route or the riverbed of the river etc and cannot let go thousand hours of human potential investment on a book or a software, if copyrighted.
Hamidan Wamuswalliyan, Ammaa Ba`d.
*WE NEED PERMISSION OF A PERSON UPON HIS HAQ.*
Once a person detain a Haq, then we need his permission to bypass his haq and cannot do so without his consent:
عن سهل بن سعد الساعدي رضي الله عنه
أن رسول الله صلى الله عليه وسلم أتي بشراب فشرب منه وعن يمينه غلام وعن يساره الأشياخ فقال للغلام أتأذن لي أن أعطي هؤلاء فقال الغلام لا والله يا رسول الله لا أوثر بنصيبي منك أحدا قال فتله رسول الله صلى الله عليه وسلم في يده
Reported in Bukhari that once there was a boy sitting on the right of Rasouloullah Swalallahou `Alaihi Wasallam and on his left was the elderly sahabahs. It is an established sunnah and principle to attend on his right first. So the beloved prophet Swalallahou `Alaihi Wasallam wished to give the elderly Sahabahs first. But since the boy was on his right, so he had the right of firstly being served. So the beloved prophet Swalallahou `Alaihi Wasallam had to ask the boy PERMISSION so that he may give to the elderly Sahabahs. And that boy refused and wanted his Haq. So Rasouloullah Swalallahou `Alaihi Wasallam gave the boy his Haq of drinking first from the Mubarak recipient that Rasouloullah SAW drank.
*So this is established that we need permission of someone to trample upon his established Haq.*
All places in the Masjid are mabah and permissible to sit. But once a person sat *FIRSTLY* in a place, then it becomes his Haq to stay in that place. The beloved prophet Swalallahou `Alaihi Wasallam prohibited us to make someone stand from his place so that we may sit in that place.(Abu Dawood)
قَالَ سَمِعْتُ أَبَا الْخَصِيبِ عَنْ ابْنِ عُمَرَ قَالَ
جَاءَ رَجُلٌ إِلَى رَسُولِ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ فَقَامَ لَهُ رَجُلٌ مِنْ مَجْلِسِهِ فَذَهَبَ لِيَجْلِسَ فِيهِ فَنَهَاهُ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ
Also reported in Muslim Shareef that we have no right to make imaamat in a house or sit on the honorable place in a house without PERMISSION of the owner. So the owner of the house has more right than anyone else over the imaamat and the honourable sitting in his house. And the beloved prophet Swalallahou `Alaihi Wasallam prohibited us from trampling upon the Haq or right of the owner of the house(Muslim):
قَالَ سَمِعْتُ أَوْسَ بْنَ ضَمْعَجٍ يَقُولُ سَمِعْتُ أَبَا مَسْعُودٍ يَقُولُا
قَالَ لَنَا رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ
وَلَا تَؤُمَّنَّ الرَّجُلَ فِي أَهْلِهِ وَلَا فِي سُلْطَانِهِ وَلَا تَجْلِسْ عَلَى تَكْرِمَتِهِ فِي بَيْتِهِ إِلَّا أَنْ يَأْذَنَ لَكَ أَوْ بِإِذْنِهِ
Over here, the Shariah imposes upon us to honour a person over his private property.
So if someone wrote something FIRST and claimed copyright of that writing, then it is against shariah to dishonour his imposed Haq/right.
Copyright protects a book from distortion and keep pace information of the selling of the book. Should there be any correction or rectification, then through copyright one may screen as to which places should the correction be informed. It prevents misquoting and hence false accusations.
Finally, under the Hanafi fiqh, it is tolerable to ask for money in return of a claimed Haq or right:
بَعْضُهُمْ لِلْجَوَازِ بِنُزُولِ سَيِّدِنَا الْحسَنِ بْنِ سَيِّدِنَا عَلِيٍّ رَضِيَ اللَّهُ تَعَالَى عَنْهُمَا عَنْ الْخِلَافَةِ لِمُعَاوِيَةَ عَلَى عِوَضٍ ، وَهُوَ ظَاهِرٌ أَيْضًا ، وَهَذَا أَوْلَى مِمَّا قَدَّمْنَاهُ فِي الْوَقْفِ عَنْ الْخَيْرِيَّةِ مِنْ عَدَمِ الْجَوَازِ وَمِنْ أَنَّ لِلْمَفْرُوغِ لَهُ الرُّجُوعَ بِالْبَدَلِ ، بِنَاءً عَلَى أَنَّ الْمَذْهَبَ عَدَمُ اعْتِبَارِ الْعُرْفِ الْخَاصِّ ، وَأَنَّهُ لَا يَجُوزُ الِاعْتِيَاضُ عَنْ مُجَرَّدِ الْحَقِّ لِمَا عَلِمْتَ مِنْ أَنَّ الْجَوَازَ لَيْسَ مَبْنِيًّا عَلَى اعْتِبَارِ الْعُرْفِ الْخَاصِّ ، بَلْ عَلَى مَا ذَكَرْنَا مِنْ نَظَائِرِهِ الدَّالَّةِ عَلَيْهِ وَإِنَّ عَدَمَ جَوَازِ الِاعْتِيَاضِ عَنْ الْحَقِّ لَيْسَ عَلَى إطْلَاقِهِ .
Sahibe Raddul Muhtaar describe that some ulamas have stated that in some conditions one may claim money in return of his Haq. These ulamas brought the proof of the historic step down of Hassan r.a. over his established Haq or right on Khilafah. Hazrat Hassan r.a. took from Mu`awiyah r.a. some requested goods/monetary items. Allamah Shami preferred this opinion in certain suitable circumstances and `Urf. Conclusion is that taking money against a Haq is not always impermissible under Hanafi fiqh.
Hence it is permissible to impose a copyright Haq over a book or a software and release that Haq in return of money. It is the only way to promote and safeguard quality writers and writings in the modern world.
Furthermore, we are all aware that many of us are using copy of software of windows etc. According to our info gathered on this issue from professionals, these companies are aware of the users of copy. Through internet, they recognize who is using original and who is using copies. They have all facilities to stop the programme from functioning from the internet. They have access to your pc through the internet. But they are not acting severe because it is a commercial tactic. First they will tolerate you to use copy, then they will propose you to buy original. If you refuse to buy original, then finally they cancel their software from your pc and you lose all your data.
The tolerance brings the relaxation to the issue. Wallahu A`lam.
Mufti Ayoob Mackoojee