THEIR FOURTH ARGUMENT
According to the Hanafi Fuqaha there are two types of rights. (1) Such rights which the Shariah has ordained to save people from harm, e.g. haqq-e-shufa’, haqq-e-qisam, haqq-e-khiyaar-e-buoogh, etc. These rights protect people against possible harm which could befall them in the absence of these rights. A person may give up his right, but may not accept payment or sell this right (of this category). If he is prepared to forgo this right, he implies that the possible harm for which the Shariah has ordained this right does not exist in relation to him. Hence, he is not allowed to sell this right.
(The votaries of copyright acknowledge this and assert their acceptance of this position.)
(2) The second category consists of such rights which the Shariah initially grants people. These are fundamental rights given by the Shariah to man and are not occasioned by the need to ward off possible harm, e.g. the right of qisaas and the right of the husband to sustain the nikah as long as he desires. It is permissible to accept money in lieu of abdicating such rights. Thus, the heirs of a murdered man may accept money from the murderer in lieu of their right of qisaas (i.e. to have him executed). Similarly, a husband may accept payment from his wife to release her from the marriage bond. This is termed Khula’. In the same way copyright belongs to this category of rights. It is a right which stems from the author’s effort from the very beginning, hence it is permissible for him to sell and transfer this right to another person. In addition he may protect his right as well by registering the copyright.
In the presentation of this classification of rights, the votaries of copyright have only succeeded in entrapping themselves in a situation which confirms that it is unlawful to sell this ‘right’ even if it be accepted to be a valid right. In the first category of Huqooq the reason for such rights is stated to be dafa’ dharar, i.e. to ward off harm or to save one from possible harm. Thus Haqq-e-Shufa’ (the preamptive right of buying an adjacent property) is to save one from the harm and distress which an evil neighbour can cause. The Shariah therefore grants man this preamptive right of buying the property next to his home to avoid the mischief of evil persons who may become his neighbours. Similarly, a wife has the right of spending the night with her husband. If he has more than one wife, each wife has her fixed number of nights. This right is to save her from injustice which the husband may cause to her by spending more nights with his other wife. These are such rights which may be abandoned, but may not be sold or exchanged for monetary gain. The stated rationale for this category of Huqooq, accepted by the votaries of copyright, is dafa’ dharar. They have conceded that if the basis of a right is dafa’ dharar, then it is not permissible to sell it or accept payment for it. In the arguments which the votaries of copyright present to justify trading in this ‘right’, the very first and fundamental argument tendered is dafa’ dharar. They vociferously claim that when others have the right to publish, the author suffers monetary harm/loss. In fact, this is the prime objective of their entire exercise. The fulcrum on which hinges the desire to legalize copyright and to prevent others from publishing the book is to allow the author the monopoly of publishing or selling the ‘right’ of publishing for an exorbitant sum which he would not otherwise have gained if everyone in the street is allowed to print, publish and sell cheaply. There is absolutely no other reason for registering copyright. Now since the declared motive is dafa’ dharar to ensure maximum monetary gain for the author, this imagined ‘right’ of copyright should be logically assigned to the first category of Huqooq in terms of the claim advanced by the votaries of this ‘right’, who have conceded that the rights belonging to this category are not tradable, hence the prohibition applies to copyright as well. In this entire debate, it is of vital importance to understand that after the votaries of copyright have exhausted their entire stock of proofs, they have unambiguously stated that the prime aim of copyright is dafa’ dharar or to protect the author from loss/harm which other publishers can cause by publication of the book. Everyone understands that this is the prime, in fact, the only motive for copyright. Thus, they have effectively assigned copyright to the first category of rights which according to their own acknowledgement are not tradable entitities. This ruling is therefore confirmed for copyright even if we have to assume this to be a valid Shar’i right, which of course it is not.
THEIR FIFTH ARGUMENT They say: The claim that printing and publication of books are Mubaahul Asl (i.e. initially or naturally lawful) does not mean that there are no restrictions. If a buyer and seller are arranging between themselves the price of the commodity of sale, it is not permissible for a third person to butt in and offer more. He has to wait until finalisation of the discussion between the two, and then offer a price if the first buyer had opted out. The Hadith categorically prohibits such interference inspite of the fact that it is mubaahul asl for the seller to present his product to the buyer for whom it is likewise mubaahul asl to offer a price and buy. Nevertheless, the Shariah places the restriction of preventing interference by a third person until termination of the negotiation. Notwithstanding Mubaahul Asl neither another seller of products nor a buyer may interfere. They have to incumbently wait for the outcome of the negotiation between the first seller and prospective buyer. In exactly the same way does the Hadith prohibit a man from sending a proposal of marriage to a girl who is in the process of deciding to accept or reject a proposal already received. Notwithstanding that it is Mubaahul Asl for any man to make a proposal, the Shariah prohibits him and orders him to wait until a decision has been made regarding the first proposal already received by the girl. Copyright should be reasoned on the same aforegoing basis. The prohibition in the aforementioned examples is due to causing dharar (harm) to others. Similarly, to save the author and the inventor from loss/harm (dharar), they should be given the right of protection, viz. copyright and patency right to compel publishers to desist from causing dharar to the author. THE RESPONSE It is this type of unprincipled argumentation which confuses the unwary ones. It is a reasoning which is the consequence of shallowness in understanding. Those who argue against the validity of copyright, namely, Hakimul Ummat Maulana Ashraf Ali Thaanvi, Hadhrat Maulana Rashid Ahmad Gangohi, Hadhrat Mufti Muhammad Shafi, Hadhrat Mufti Mahmood Gangohi, Hadhrat Mufi Rashid Ahmad (Author of Ahsanul Fataawa) and countless other senior Ulama, never contended that Mubaahul Asl is a principle without restrictions. We can assure Muslims that these illustrious Ulama-e-Haqq, who are our Akaabireen, understood the principle of Mubaahul Asl better than the understanding of the liberal Molwis of this age. It is well understood that some acts which are Mubaahul Asl have restrictions regulating them from the very inception while others acts are governed by conditions which come into force subsequent to a person acquiring the haqq. This is not the occasion to elaborate on this issue. It will suffice to say here that the Akaabir Ulama were well aware of the restrictions and their ways of application to the different categories of Mubaahul Asl acts. In the two examples presented above by the votaries of copyright, the restrictions came into force at such a stage when the subject was no longer Mubaahul Asl. When two persons are in the process of negotiating the price for the commodity of sale, the rule of Mubaahul Asl falls away in relation to a third person who intends to enter the arena. As long as the negotiation is in progress, it is not mubaahul asl for a third person to interfere and influence either the buyer or the seller. When the process has terminated and no sale was effected, the rule of Mubaahul Asl becomes again applicable. Now the third person may avail himself of this right. The same explanation applies to a marriage proposal under consideration. The initial Mubaahul Asl right is extinguished in relation to another prospective proposer as long as the first proposal is under consideration. If the first proposal is rejected, the Mubaahul Asl rule is rekindled. The proponents of copyright concede that publishing a book or reprinting a book from a lawfully acquired copy, is Mubaahul Asl for the owner of the book. They, however, seek to restrict this inceptional right with copyright. To achieve this aim they have cited the two examples mentioned above. Just as the right of publishing is Mubaahul Asl for the author, so too is it Mubaahul Asl for the one who has lawfully acquired the book. While the effort of the author grants him a preference over others in accordance with the kuffaar-spawned concept, he enjoys no such preference in terms of the Shariah.
The Mubaahul Asl right of a person cannot be cancelled or restricted merely by the desire of the author for greater pecuniary gain. Such a desire is not a Murajjih (Determinant) between two equal entities in terms of the Shariah. Both enjoy the same degree of Mubaahul Asl rights. The author’s Mubaahul Asl right cannot be given preference without a valid Shar’i determinant. This inceptional right allows the author to print and sell his book. In the same way does it allow another person to print and sell the book. The other person does not deny the author’s right to publish his book. He does not interfere with any of the rights of the author. He only offers lawful competition in trade. This is allowed by the Shariah. Copyright in actual fact interferes with the Mubaahul Asl right which the Shariah has given to the person who desires to print the book. This right is not dependent on being an author. It is a right unencumbered with conditions initially. The analogy with the interference of a third person in the price arranging process in progress, and with the marriage proposal under consideration is palpably false. A man opens a shop in a place where there are no shops. He struggles and makes much effort to establish the business. After he has put in considerable effort to make the business a lucrative one, another person seeing the scope for making money, opens a shop right next to the existing shop and he stocks his shop with the same merchandise. As a consequence of his action the sales of the existing shop decreases by 50%, and so does his profit. According to the copyright rationale, the first shopkeeper should be protected by a shopright to prevent others from encroaching on his trading domain. Such a right will be on the same basis of dafa’dharar which constitutes the motivation for copyright. But hitherto such a concept (of shopright) has not yet been conjured up by the kuffaar system. If in future such a right is given effect, then our liberal Molwis will argue its permissibility on the same grounds they are now presenting the case for copyright. The Hadith proscribing the submission of a price offer during a price negotiation in progress and a proposal on a proposal does not curtail anyone’s Mubaahul Asl right as the votaries of copyright have attempted to convey. Rather, the Hadith prevents others from interfering with the Mubaahul Asl right of those who have already implemented it and are in the process of an engagement in consequence of having invoked their Mubaahul Asl right. Thus, the one who occupies a place first in a Musjid or any other public venue, has a prior claim over that place to the exclusion of all others. Before he had occupied the place, it was Mubaahul Asl for everyone. After his occupation, this right is extinguished for others as long as his retains his occupation. After abandoning occupation, the Mubaahul Asl right for others returns. It is therefore baseless and misleading to cite this Hadith in support of copyright which in fact constitutes an interference and an impediment for the Mubaahul Asl right of other publishers The Shariah does not give anyone the right to interfere with the Mubaahul Asl rights of others if they do not adversely affect the rights of others. Let alone the publisher interfering with the Mubaahul Asl right of the author, it is the latter who interferes and restricts the publisher’s inceptional right by invoking the kuffaar system of copyright. THEIR SIXTH ARGUMENT They say: The better basis for analogising authorship of a book is the legality of accepting wages for teaching the Qur’aan, for Imaamate and for giving Athaan. For the purpose of the propagation and protection of the Deen, the perpetuation of writing and distributing books is not of lesser importance. On the basis of this need the Fuqaha have ruled it permissible to accept wages. In the same manner should it be permissible to accept monetary gain for the right of publishing books. THE RESPONSE This analogy is laughable. It does not behove Ahle Ilm (People of Knowledge) to argue with such puerility. It is conceded that in our age the dissemination of Deeni books is of vital importance for the propagation and preservation of the Deen in a similar way as the teaching of the Qur’aan is. At least we and the votaries of copyright are united in this view.
Now what course of action will serve this laudable aim of propagating and guarding the Deen better? Restricting the publication of the Deeni book by preventing others from printing and disseminating the books intensively and extensively, and allowing only one publisher to print and sell the book at a high price thereby severely curtailing the distribution, or to permit all and sundry to print and distribute the Deeni books free or at low prices? The greater the number of publishers and the cheaper the book is sold, the wider the circulation, and the more people will be reading the book. The purpose of dissemination of the teachings of the Deen and its protection are thus better served in the absence of the confounded kuffaar concept of copyright. The votaries of copyright aver: “The Fuqaha have proclaimed wages permissible for teaching the Qur’aan, etc. for the sake of protecting and disseminating the Deen.” Hence, the same permissibility should be extended to the author of a book since he too is involved in the process of protecting and disseminating the Deen by the publication of his book. This argument is ludicrous and devoid of substance. If the author is involved in this activity, then the several other publishers of the book are fulfilling this incumbent need in a better way by the mass and cheap distribution of the books. For the acquisition of monetary gain for the author, there is no need to argue the case on the ruling of permissibility of wages for those who teach the Qur’aan and perform duties of Imaamate, a permissibility which the expediency of necessity had dictated. As far as the author of a book is concerned, it is his right to print, publish and sell his books. There is no need to invoke any principle of the Shariah for this because unlike wages for teaching the Qur’aan Majeed, monetary gain for selling books never was unlawful at any stage. There is simply no sense in this argument of the votaries of copyright. The author can make his money without the encumbrance of the haraam imaginary copyright. This analogy simply has no validity.
NARRATING HADITH AND REMUNERATION Among the arguments presented by those who are opposed to copyright is the fact of the Muhadditheen having prohibited acceptance of remuneration for narrating Ahadith. The printing and dissemination of Deeni books belong to this category of prohibition. While we confess that we do not quite comprehend the relationship between acceptance of monetary remuneration for narrating Hadith and printing and selling of books, we shall nevertheless, respond to the counter argument. In their argument presented in refutation of this claim, the votaries of copyright say: “Undoubtedly, the majority of the Salf-e-Saaliheen (Pious predecessors of the early epoch of Islam) have prohibited taking remuneration for narrating and teaching Hadith. Hasan Basri, Hammaad Bin Salmah, Salmah Bin Shabeeb, Sulaiman Bin Harb, Abu Haatim Raazi, Shu’bah and Imaam Ahmad Bin Hambal—all of them have narrated this prohibition. Not only this, they in fact would refuse to accept the narrations of those who accept remuneration for narrating Hadith. However, some very senior authorities of the Deen such as Abu Nuaim, Ali Bin Abdul Aziz, Taaus and Mujaahid would accept remuneration without hesitation for narrating Hadith.” This response is not valid. A refutation should be based on Shar’i principles and teachings, not the practices of individual Ulama. If the personal practice of an Aalim, be he of the highest class, appears to be in conflict with the ruling of the Shariah, his personal act does not constitute a daleel to be presented as a basis, especially when his act appears to be in conflict with the teaching of the Shariah. Since the authority happens to be an accredited person and an accepted Aalim of the Deen, his peculiar deed will be set aside or a suitable interpretation will be applied. Never will his action become a basis for the deduction of Shar’i masaail. Some very peculiar deeds and opinions are attributed to many senior Ulama, which are in conflict with the clear teachings of the Shariah or with the Jamhoor ruling. Such peculiarities will necessarily be set aside. With regard to publication of books, this argument is irrelevant because it is permissible to sell books. Printing books involves money.
Printing and distribution costs are high. Books are tangible commodities (maal), the buying and selling of which are perfectly permissible. Selling books cannot be argued on the basis of acceptance of remuneration for verbal narration of Hadith. THEIR SEVENTH ARGUMENT They say: “Every person has the right to sell his wares at whatever price he wishes. In fact, Rasulullah (sallallahu alayhi wasallam) has prohibited interference with this right of the traders. Notwithstanding this prohibition, if someone misuses this permissibility by excessively increasing prices, then the Fuqaha have made provision for the government to control and fix the prices. In this regard, it appears in Fathul Qadeer: ‘If the owners of food charge exorbitant prices and the Qaadhi becomes helpless in his duty of protecting the rights of Muslims except by means of price-control measures, then there is nothing wrong in this if this is done in conjunction with the people of experience and knowledge.” Copyright should also be based on this. Inspite of whimsical prices being Mubaah (permissible), it has been prohibited (by the Fuqaha).” THE RESPONSE This is another example of the legless type of arguments which the votaries of copyright tender. In the example of price-control by the authorities cited by the proponents of copyright, the Fuqaha have not abrogated the Shar’i hukm pertaining to Mubaahul Asl. They do not prohibit what is Mubaahul Asl. The prohibition is of exploitation which brings hardship to the masses. Such exploitation is not Mubaahul Asl. It is haraam from the very inception. Furthermore, the Fuqaha explicitly mention that the price-control is related to essential foodstuff or to the staple food of people. It does not relate to items of comfort and luxury, nor to foodstuff which is available in the open market from numerous business outlets. The ruling of the Fuqaha mentions with clarity that such price-control can be enacted when the rights of the Muslim public are violated and cannot be protected without action by the rulers.
What resemblance does copyright have with this situation? What rights of the Muslim public will be exploited if copyright is assigned to the trash? How will the Muslimeen suffer if some selfish authors inspired by pecuniary cravings are not allowed to monopolise the publication of books? On the contrary the Muslim masses will vastly benefit if there does not exist copyright to thwart the mass publication of books. In addition to cheaper books, a greater number of people will read the books. The prohibition stated in the passage from Fathul Qadeer regarding price-control applies to the author who seeks to establish a monopoly for himself. It does not apply to those who act in the public interest by reducing prices and better serving their Deeni need for books of the Deen.