THE ARGUMENTS OF THE LIBERALS

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THEIR FIRST ARGUMENT

(1) In the present age, the dissemination of a kitaab (book) is not exclusively for the purpose of the dissemination of knowledge. The publication of a book is related to trade and commerce. The aim of the Muslim author from the very inception, along with the intention of disseminating knowledge, is pecuniary gain for his effort. In the absence of copyright, the author suffers monetary loss. On the other hand, the person who desires to publish a book without the permission of its author is primarily motivated by the desire for acquisition of material gain. His intention of benefiting knowledge is secondary It is unjust that the author who had made the effort be deprived of gain while someone else acquires millions (in monetary terms) on the basis of the author’s effort and enterprise. According to the Shariah, if Maslihat (expediency) does not conflict with Nass (an explicit law of the Shariah), then it will be adopted.

THE RESPONSE

Several claims have been presented in this argument. These are:

(a) In this age the publication of a book is not exclusively for the purpose of dissemination of knowledge.

This is an arbitrary claim without substantiation in regard to the publication of books of the Deen, which innumerable Muslim individuals and organisations publish purely for the sake of gaining the Pleasure of Allah Ta’ala. Millions of Islamic books are published and distributed even free in the process of Da’wat and Tableegh. This arbitrary averment is sweeping and baseless in relation to books of the Deen. The claimant has not advanced a shred of evidence for his assertion.

Innumerable members of the Muslim community all the over the world contribute substantial sums of money for the printing and dissemination of Islamic books so that they may derive perpetual reward (Thawaab-e-Jaariyah). Thousands of books are thus printed and distributed for the benefit and Deeni guidance of Muslims, all in the furtherance of the aims of Da’wat and Tableegh. Those individuals and organisations who are involved in this type of Deeni activity can speak with greater authority on this subject than the Molwi Saheb whose aim is only to provide Shar’i sanction for the concept of copyright.

It was never contended by the Ulama who claim that copyright is haraam that in this age books are printed exclusively for Deeni purposes. This is another arbitrary claim devoid of substance. Furthermore, regardless of whether Deeni books are published in this age for altruistic Deeni aims or for monetary gain, this is no grounds for claiming Shar’i validity and permissibility for the concept of copyright.

On the assumption that all Deeni books in this age are published for only monetary gain and for no other altruistic aim, then too, this is not a Shar’i basis for the validity of copyright and to trade in it. The Shariah categorically prohibits selling of even valid rights which it recognizes. This issue will, Insha’Allah, be discussed at a later stage in this book.

So, whether books are printed and published for Deeni reasons or pecuniary gain or whether exclusively for pecuniary gain without even the intention of thawaab, then too, this does not constitute Shar’i grounds for validity of copyright and for permissibility to trade in such imagined right.

The claimant implies by this argument that copyright is valid and trading in it is permissible because in this age books are not published exclusively for the dissemination of the Knowledge of the Deen. The logical conclusion stemming from this argument is that copyright would not be permissible if Deeni books are published purely for the sake of the Deen. Even this averment is baseless inspite of the altruism. While this is the logical conclusion the presenter of this argument does not make any distinction in the validity of the copyright concept and in the permissibility to prevent others from printing and selling the book As far as the votaries of copyright are concerned, copyright in general is valid and trading in this ‘right’ is lawful without any restriction.

This entire argument is totally untenable in the Shariah. It is not a Shar’i ground for recognizing the copyright concept and for permissibility to sell and buy this imaginary right. If it is, evidence is required. Besides tendering a claim based on personal opinion and preference, there is no Shar’i substantiation for this argument. It is utterly baseless.

(b) The publication of a book is related to trade and commerce.

Relationship with trade and commerce is not a Shar’i daleel (proof) for the validity of a concept which has no substantiation in the Shariah. Riba, gambling, insurance and many other transactions are also related to trade and commerce. But such a relationship does not constitute grounds in the Shariah for permissibility. Thus, the publication of a book being related to trade and commerce is not a Shar’i ground for the claim of validity of copyright and for trading in it.

This argument also implies that if a book is not related to trade and commerce then copyright will not be permissible. Although this conclusion stems from this argument, the votaries of copyright do not make any distinction in their ruling on copyright. In their opinion copyright is permissible regardless of any relationship with trade or not. The validity of copyright according to them is applicable to even such publishers who print and disseminate books purely for Deeni purposes, without any pecuniary designs.

(c) In the absence of copyright the author suffers monetary loss.

This argument is downright silly. It is unworthy of a man of Knowledge to present such an utterly fallacious argument, the fallacy of which is discernible to even those without knowledge. When someone other than the author prints and publishes a book, the money of the author is not usurped. Money which the author has acquired is not taken from him. The publisher of the book employs his own capital and the risk of losing money is exclusive with the publisher. There is no relationship with the author. He does not lose any money when someone prints and distributes the book which he had authored. The question of monetary loss, therefore, does not arise.

The claimant has here confused loss of money with possible loss of future earnings. Loss of future earnings as a consequence of any lawful act of another person is not regarded in the Shariah as monetary loss since already acquired money is not lost. The ‘loss’ is related to possible future earnings. Should the author earn less in view of competition by a publisher, such less earnings acquired by the author are not termed monetary loss by the Shariah because the author has not lost anything which he already owned.

There are a variety of factors which can lead to decrease or loss of future earnings. This situation is normal and accepted as fair trade practice. A person who lawfully constitutes a factor for another person’s decrease or loss of future earnings is not sinning nor can he be penalized for setting himself up as such a factor.

For example, a trader enjoys a lucrative trade in a locality where he has been trading without competition. Some others seeing an opportunity for making money, open shops in close proximity to the trade. They trade in the same commodities and cut their prices. The keen competition they offer results in a substantial decrease in the sales of the first trader. His profit falls considerably. Such decrease in profit is never termed monetary loss since he has not lost money which he had already acquired.

A man earns a high salary. Someone else with the same qualifications and expertise is employed by the same company. The company pays him a substantially lower salary. This leads to the retrenchment of the higher paid worker. His dismissal leads to loss of future earnings. Such loss is not regarded as monetary loss by the Shariah because this person does not lose money which he has already earned. The loss is related to future unearned money. The man who was responsible for the dismissal as a result of agreeing to work for half the salary is not committing a crime by taking up employment which leads to the dismissal of another person.

In these instances, inspite of sustaining future loss of income or decrease in income, it will be in conflict with the Shariah to enact a law prohibiting people from trading in the same commodities in proximity to the already existing and established business. Should the kuffaar introduce such a law and confer to the first trader the right to legally prevent others from trading alongside him, and to sell that right to them, this will not be permissible.

The argument of sustaining loss or decrease of future earnings is not a valid basis in Islam for debarring any person from utilizing his lawful Shar’i right (Haqq-e-Mubah) to earn. If the vigorous competition he offers the existing trader leads to loss or decrease of future income for the latter, the Shariah tolerates this and does not interpret it as being ‘monetary loss’ for the simple reason that the affected person has not lost any of his money by the action of the newcomer into the field.

Inspite of the competitor being the ostensible cause or factor for loss of sales leading to loss or decrease of future profit, such competition is allowed and is in actual fact in the public interest. Preventing such competition is tantamount to haraam monopoly. It is haraam to claim the right of debarring competition and to sell such an imaginary right to allow someone to trade in the vicinity. Even if such a practice becomes a norm (urf) it will remain invalid –a haraam urf (customary practice).

The terms ‘ostensible cause’ are mentioned here to show that the true cause for the decrease of income or profit is not the material or worldly factor, but is the Decree of Allah Ta’ala. When Allah Ta’ala decides to restrict, curtail or totally halt the Rizq of a person in a specific avenue, He introduces a cause or a worldly factor to which the loss of future earnings is attributed in exactly the same way as death is attributed to a sickness, an accident, a murder, etc. while in reality it is the Decree of Allah Ta’ala.

The Shariah prohibits some acts which can lead to loss of future earnings, and it also allows some acts. An act which is allowed by the Shariah cannot be proscribed on the basis of any concept of the kuffaar. Thus competition is allowed regardless of any future loss which will be sustained by the competitors. It is the Shar’i right (haqq-e-mubah) of a man to compete in trade with another trader. The Shariah recognizes this right. Nevertheless, it is haraam for anyone to sell his right of competition, and it is haraam for anyone to purchase such a right to ensure that he holds the monopoly in that particular area of trade. Even if such buying and selling have become the norm, it will be rejected as haraam by the Shariah.

In exactly the same way, is it haraam to prevent others from publishing a book which they have lawfully acquired. It is haraam to fabricate such a right, then sell it. Similarly is it haraam to purchase this imagined copyright. When a person purchases a book, he becomes its owner. All lawful rights associated with the book belong to him. It is his lawful right to read the book. But inspite of it being his lawful right to read the book, he cannot sell this right nor can he hire out the book and collect a fee from others for reading the book as kuffaar libraries do in this age. Inspite it having become the urf (norm and practice) to give books on rental, this is haraam in the Shariah. The book may be sold, not the rights independently.

In fact, while ‘competition right’ has Shar’i validity, copyright has no such validity. Despite the validity of competition right, trading in such rights remains haraam. A man cannot barter with a competitor and purchase his right of competition to ensure that he refrains from entering into the particular sphere of business. To a greater degree will the prohibition be applicable to an imagined right – a right fabricated by a kuffaar concept. It simply is not a right despite it having become the norm in the present age.

‘Future loss of imaginary or expected earnings’ is not recognized by the Shariah. In kuffaar law this concept is recognized and has validity in their legal system. Thus, a man may sue and claim damages for ‘lost’ future earnings caused by the action of a person. But the Shariah rejects this concept.

Future ‘loss’ in fact is no loss. At most, it is deprivation from an expected benefit. But this is not a real monetary loss. Monetary loss in the Shariah refers to a loss of real tangible money or maal (tangible or physical commodity) which is already in one’s possession. It is for this reason that Islam does not order the usurper (ghaasib) of a property to pay compensation (occupational rent) for a premises which he forcibly occupied without the owner’s consent or in defiance of the owner’s consent. The kuffaar system recognizes future loss of earnings to be a real loss while Islam does not, hence occupational rent cannot be charged.

The ghaasib (usurper) causes real suffering to the owner, for he has occupied the property without consent and in defiance of the wishes of the owner. Inspite of having usurped the right (a real Shar’i right) of the owner of the property, the Shariah does not allow the owner to claim monetary compensation.

Similarly, or to a greater degree will this prohibition of monetary compensation apply to an imaginary ‘right’ fabricated by the kuffaar system. Unlike the numerous other rights conferred to people by the Shariah, ‘copyright’ never was such a right, nor was it ever a product of any Urf (Custom) of any Muslim community at any time in the history of Islam. Therefore, it cannot even be argued on the basis of the fundamental principle which governs rights, namely, “Buying and selling of rights are not permissible.”

Another example is the theft of a taxi vehicle which is used to generate income. As a consequence of the theft, the owner is deprived of future earnings. The thief utilizes the vehicle to earn money for himself. After apprehension of the thief and recovery of the vehicle, while the owner can claim for any physical damage caused to his vehicle, he has no right of claiming compensation for the loss of earnings.

Consider this: the thief has earned a substantial amount of money by operating the vehicle as a taxi, yet the owner has no right according to the Shariah to claim such earnings of which he has been deprived by the action of the thief who had gained monetarily from the taxi.

The Shariah simply does not regard deprivation of future benefit as a monetary loss as the kuffaar legal system recognizes. In the Shariah a true loss will be the loss of tangible commodity (money or material commodities) which is already in one’s possession.

Refuting the claim that total or partial deprivation from future benefit is an actual loss, Hadhrat Mufti Muhammad Shafi (rahmatullah alayh) writes in Jawaahirul Fiqh:

“This is not dharar (a harm or actual loss). It is the non-existence of a benefit, in fact a decrease in benefit. The difference between dharar and adm-e-nafa’ (non-existence of benefit) is quite apparent……..If because of our activity there results a decrease in the profit of someone, then there is permission (for such activity). If in the marketplace there are a number of shops trading in the same commodities, and this results in the decrease of any trader’s profit or in the total deprivation of profit, it will not be said that the other traders are responsible for causing him loss. Hence there is neither Shar’i nor rational grounds for preventing the traders from trading (in that area).”

From the aforegoing discussion it should be clear that the averment of monetary loss is devoid of substance and refuted by the Shariah.

(d) “It is unjust that the author who made the effort be deprived of making a profit while someone else makes a fortune on the basis of the author’s efforts.”

This claim is palpably baseless. When someone else publishes the book, the author is not deprived of making his fortune. The other person acts independently. He is not an impediment in the path of the author who wishes to print and sell his book. The author is in no way whatever precluded from printing and publishing his book. A variety of publishers of the same book leads to healthy competition which is always in the public interest. Innumerable people benefit from such competition while the kuffaar concept of copyright stifles and prohibits this competition for the sake of enriching only one man.

While the claim of depriving the author is made, the claimant fails to explain in which way the author is debarred from making his fortune. If someone else who has lawfully acquired the book is able to make a fortune by publishing it, what prevents the author from printing and selling his book? If he is unable to print his book, it is no fault of the others who print it. If he lacks capital for this venture, it is not grounds for preventing others with capital from embarking on the endeavour to make a fortune.

Initially, only the author has possession of his manuscript. He is free to sell it at any price he wishes. The reward of his effort is either the price he acquired for his manuscript or the profit he will make if he himself embarks on the venture of printing and publishing. But he has absolutely no right of preventing others from making their fortune on the basis of the book which they have purchased or acquired in any lawful way. It is only inordinate greed and selfishness which constrain the author to institute measures to prevent others from earning a halaal rizq. At the end of the day everyone will obtain only his share of rizq which Allah Ta’ala has predetermined.

A man who intends to reprint a book, uses his own capital. He harnesses in a lawful manner all the agents and tools of reprinting the book. It is his effort and enterprise. In this process he does not harm the author in any way whatever. He only offers competition which the Shariah allows. He assists in the prevention of monopolisation which is detrimental to the public interest. His competition benefits thousands of Muslims while the greed and selfishness of the author manifested by way of copyright harm thousands of Muslims. Exorbitant prices and restriction of circulation of the book are most certainly not designed for the benefit of the Ummah.

The attitude of the author is spiritually harmful for himself and for Muslims at large. He allows his inordinate pecuniary greed to restrict circulation of a Deeni book which is of immense spiritual value to the masses.

Commenting on this evil attitude of the author, Hadhrat Mufti Muhammad Shafi (rahmatullah alayh) writes in Jawaahirul Fiqh:

“The desire of the author or inventor to prevent others from printing the book (or manufacturing the new invention) is merely to enable himself to acquire an exorbitant profit which is far in excess of what the traders in general would make; or his desire is to restrict all the profit for himself alone, thereby depriving others from this lawful way of earning This attitude in itself is harmful for the masses. Instead of debarring others, he (the author because of his selfishness) should be debarred. The Shariah does not condone such profit for an individual which leads to harm for the masses.”

The issue of the prohibition of an individual’s action which is detrimental for the masses is discussed further in Hadhrat Mufti Shafi’s article and fatwa on copyright at the end of this book.

It is quite clear that others who print the book are not depriving the author of profit or of any of his rights. The allegation of injustice is thus arrant nonsense.

(e) “According to the Shariah if Maslihat does not conflict with Nass, then its adoption is permissible.”

In this averment the votaries of copyright are saying that since the expediency of this measure does not conflict with Nass (an explicit law of the Shariah), it is permissible. According to them copyright is not in conflict with any law of the Shariah, hence it is permissible. This claim is likewise baseless.

In the aforegoing discussion it has been shown that:

• Copyright infringes on the natural and lawful right (Haqq-e- Mubah) of others besides the author —their right to utilize their own property to earn lawful profit.

• Copyright prevents the free and mass distribution of beneficial Deeni kitaabs.

• Copyright is exploitation since it fosters haraam monopolies and it allows the author to fix exorbitant prices.

• Copyright allows the greed of an individual to cause detriment to the masses.

• Copyright allows monetary dealing in an entity which is not maal (tangible or physical commodity). This is haraam. The prohibition of selling rights applies to a greater degree to an imaginary right – a right which does not exist in the Shariah. (This issue will be elaborated on later in this book, Insha’Allah).

All these acts are in conflict with Nass. The conspicuity of the conflict with Nass does not require the production of evidence. The conflict is obvious. Nevertheless, it will be discussed further, Insha’Allah.

[Rest of article to be added later]

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