Islam and Copyright: Discussions from the Arab World

2.1 Intellectual “Property”: Is it Money?

A basic question with which Arab scholars examining the notion of copyright from the point of view of Islamic law had to deal is whether intellectual production can be considered as a form of money that can be sold and exchanged, a requirement to accept the validity of copyright and the rights that it gives to authors and the duties that it imposes on purchasers of their works. The issue of the nature of intellectual production and creativity and whether they can be considered as a form of money arose out of references to Qur’anic verses that prohibit the unjust “consumption” of other people’s “monies.” These references were meant to prove that Islamic law does support copyright because it is a kind of “money” or property that establishes financial rights (Al-Tamimi 2020, 85).^[9] We will address next the issue of intellectual production being a kind of property. In the meantime, because those Qur’anic verses speak about money (amwāl), Arab scholars needed to attend to the question of whether and to what extent we can consider an author’s right in his intellectual or creative production as a form of money.

Arab scholars writing on copyright discuss views of early and medieval Muslim scholars who disagreed on the definition of money. Generally speaking, Muslim scholars generally agreed that for something to be considered as money, it has to have a certain value for people, which would only apply to things that have certain benefits. Hanafi scholars, however, insisted that to be considered as money, an item has to be of the kind that people can exchange, transfer, deliver, move, and save. This last requirement led Hanafi scholars to distinguish between property and money. It is possible, on their view, for something that is not money to be a property. In other words, property and money are not synonymous. Based on this essential characteristic of money, Hanafi scholars, unlike other scholars, agreed that benefit (manfa‘a), in and of itself, is not a form of money, for it cannot be exchanged and saved for later use. As is well known, the Hanafi school of law (madhhab), was the most widespread of all Sunni schools of law, being the official school of law of some of the most important Muslim empires in history, including the Ottoman Empire, of which most Arab countries were part. This simply means that the Hanafi view on this issue must be reckoned with in discussions on copyright, even if other schools of law did not agree with it.

Some Muslim scholars relied on the Hanafi definition of money to argue that copyright is invalid from the perspective of Islamic law. The basic argument here is that intellectual production is not a thing that can be sold and delivered to another. In fact, a scholar (Bin Muhammad 2007, 9) points out that it is not something that one can monopolize as can be done with items that qualify as money. Accordingly, one cannot sell or exchange a mere permission to print, which cannot cancel out the rule that one can use their money (here, the physical “container,”^[10] such as a copy of a book, that one has bought) the way they wish, let alone the rule that knowledge should be disseminated (ibid., 6–7). Similarly, Abu Zayd (1996, 122–3), who is otherwise fully supportive of protecting authors’ “moral” rights, seems to support the view that preventing people from copying a specific work (which is otherwise permissible by default) can be justified only if it is an intervention in someone else’s property (used synonymously with money here) without their permission, or if it causes harm (ḍarar) to them. Neither of these two points applies in the case of copying other people’s works, for authorship (taṣnīf) is not money that one can usurp from another by copying their work.^[11] Based on the same reasoning, authors cannot even prevent others from translating their works to another language (ibid., 162). In this context, Al-Kurdi (1979, 17) had even gone so far as to argue that according to the Islamic ethos on the production and dissemination of knowledge, if anyone owes anything to another, it is the author of a translated work who should be grateful to the translator who makes his knowledge accessible to more people. Secondly, copying someone’s work may reduce their revenues or financial benefits from the sale of their works, but this, in itself, does not constitute harm. If a number of shops open in a place that used to have one shop, they may reduce the revenues of this shop, but it cannot be argued that the other shops have caused harm to the shop’s owner.^[12] In fact, Abu Zayd (1996, 123–124) quotes a view, seemingly approvingly, to the effect that if seeking to prevent others from copying and re-publishing one’s work is motivated by the desire to make more revenues than “reasonable,” the right thing to do is restrict the author’s rights, not allow him or her to prevent others from a legitimate act. Personal benefit, he explains, cannot be used to cause harm to others.

Most other Arab scholars, however, have argued that intellectual production can be considered as a form of money, or can be treated as such for all practical purposes. To prove this point, they draw an analogy between exchanging money for using an author’s intellectual production (which gives it a monetary value and thus turns it into money), and charging money for teaching the Qur’an and Hadith (for this analogy, see, e.g., Abu Zayd 1996, 169).^[13] In fact, so this argument goes, the Prophet Muhammad allowed a man, who was unable to pay a dowry, to marry a woman in return for teaching her some Qur’anic verses, an incident from which is inferred that the Prophet considered the man’s “knowledge” as a substitute for money, given that dowry, which is customarily money, is a basic requirement of marriage (for this argument, see, e.g., Al-Ghiryani 2017, 93).^[14] Other scholars (e.g., Al-Sunbuli 1986, 244) draw analogy between authorship and craftsmanship. Here, just as a craftsman produces things that people use and benefit from and charge them money for that, an author produces knowledge that people use and benefit from, and can similarly charge them money for that. In addition to these arguments, in 1988, the Islamic Fiqh Council of the Muslim World League declared that non-material items, such as trade names and marks, authorship and intellectual production, and inventions and creative productions, are protected rights that have gained monetary value in the custom of our age (Majallat 1988, 2581).^[15]

In addition to these arguments, some scholars (e.g., Al-Zuhayli 2006, 582) have presented arguments about the very definition of money. For example, an item does not qualify as money depending on its quality (physical quality, that is), but rather its utility (manfa‘a). In fact, scholars supporting copyright mention that Maliki scholars had an expansive definition of “deliverability” (which Hanafi scholars insisted was a characteristic of money) that did not restrict it to physical entities. Here, even utility and benefit can be delivered, which means that they satisfy this requirement in the definition of money (Al-Ghiryani 2017, 40). It is perhaps this view that has led to the argument that authors charge money in exchange for fulfilling certain needs with the readers, the consumers of their scholarship (Al-Shahhi 2017, 129). In other words, the money is exchanged for service, which is indeed delivered to readers.

Expectedly, those rejecting the “monetarization of knowledge” question and reject the validity of the pieces of evidence used in pro-copyright arguments and provide their own counter evidence. For instance, they argue that when the Prophet allowed a man to marry in return for teaching his pride some Qur’anic verses, he only meant to show kindness and sympathy to him, seeing that he had nothing to give to his bride, or to emphasize the special status of the Qur’an, to which other writings cannot be compared. The same applies to the Prophet’s permission regarding charging money for teaching the Qur’an, with scholars opposing copyright restricting it to the use of the Qur’an to heal sick people.^[16] A more relevant tradition, they say, is one where the Prophet is reported to have warned a Companion of his against accepting compensation for teaching a group of people the Qur’an and writing.^[17]

2.2 Copy“Right”: What Kind of Right is it?

Most of the Arab scholars who have discussed the notion of copyright have tackled it from the angle of rights. As much as this approach has proved useful to them in the present context, it has had its own difficulties with which they had to deal. Traditionally, Muslim scholars dealt with what are called today property rights (ḥaqq ‘aynī, ḥaqq milkiyya) and personal rights (ḥaqq shakhṣī). Property rights refer to one’s authority over their property and freedom to use it freely (unless the use violates Islamic law, of course). A personal right, however, gives a specific person the right to act in a specific way in relation to another (such as the right of a husband to divorce his wife). It can also establish certain duties on others towards a specific person, such as the right of preemption (ḥaqq al-shuf‘a) for neighbors and business partners. These personal rights, and the way they should be practiced, are generally established by Islamic law itself.^[18] Now, those using the rights approach in the context of copyright needed to think of how to fit intellectual production and creativity in the framework of these two rights, especially when others use the same approach to dismiss that copyright can be categorized as a right in Islamic law to begin with. Whereas some of them did attempt to characterize copyright as either a property or personal right, others seem to have conceded that it is a distinct category of rights that is still protected under Islamic law.

Arab scholars rejecting to acknowledge copyright as a recognizable right under Islamic law generally argue that it is neither a property nor a personal right. Property rights, they explain, were traditionally assumed to apply exclusively to material or physical items, which intellectual production is not. This, of course, applies to other “moral” rights (translated into Arabic as ḥuqūq adabiyya or ḥuqūq ma‘nawiyya), the non-physical nature of which does not allow them to qualify as property rights under Islamic law. Al-Kurdi (1979, 15–16), for instance, argues that if anything, copyright is no more than a mere abstract right (ḥaqq mujarrad) that cannot be monetarized or entitle authors to interfere with whatever purchasers of their books want to do with their purchases. Furthermore, even if copyright refers to the right of a person (author or creator) to act in specific way or establish certain duties on particular people (readers and consumers of copyrighted materials), these rights and duties are not established by Islamic law as is the case with recognized personal rights, which derive their legitimacy from the Shari‘a itself, not from anything outside it.^[19]

On the other hand, we have seen earlier that Arab scholars, following their pre-modern Muslim counterparts, disagreed on whether intellectual production can be considered as money. Those who argue that it can, are easily able to characterize copyright as a form of property right. In fact, some Arab scholars have simply argued that money and property are one and the same thing (Al-Zuhayli 2006, 593; Bin Muhammad 2007, 15). We have also seen that for some pre-modern and contemporary scholars, utility and benefit were sufficient to establish monetarization. And since knowledge and scholarship involve utility and benefit, they can be considered as money and property that can be sold and exchanged. Additionally, some of these scholars have emphasized that more often than not, a physical “container” (wi‘ā’) is involved in the process of selling intellectual production that must always be fixed in a physical form to enjoy protection. The most obvious of these physical containers is the book, a bound volume that is actually the subject of exchange and obviously fulfills all the traditional characteristics of money and property. Once fixed in a physical form, intellectual production separates from its creator and attaches to the physical form that contains it (Al-Ghiryani 2017, 53). The physical form that production takes, so the argument goes, resembles a fruit that has separated from its tree, and which can then be traded separately from the tree – it can be sold, rented, or exchanged, just as one can do with any of his or her property. This point will appear again in later contexts.

In addition to this argument, some scholars have argued that intellectual production, independently of any physical container, can still be treated as a form of property for particular purposes. Here, they draw analogy between intellectual production and some rather personal rights the monetarization of which is accepted in Islamic law. Scholars (e.g. Al-Zuhayli, 590–591) refer here to the right to initiate divorce which a husband can surrender to his wife in return for compensation,^[20] or the right of the family of a murdered person to accept monetary compensation (diya, also translated as blood money) in return for forgiving the murderer. Similarly, even if an author’s intellectual production is an abstract right that cannot be physically exchanged, it can still be sold or exchanged, which turns it into a property for practical purposes. On this view, it does not really matter whether copyright is a kind of personal or property right – it can be either, or it can be both. In either case, it can be recognized as a right that can be traded. This argument, however, was rejected by those who argued that copyright was actually analogous to other personal rights that cannot be monetarized or traded under Islamic law (e.g. ‘Abd Al-Nabi 2015, 583). For instance, Islamic law recognizes the right of preemption, but Muslim scholars have agreed that this right cannot be sold or exchanged. The reason for this is that the right of preemption and similar rights were meant to prevent certain harms. This means that if a person tries to sell them, he would be acknowledging that they are not actually causing him harm. In other words, by offering these rights for sale, a person acknowledges that their raison d’être is invalid. This is similar to copyright that is meant to prevent certain harms, and this is exactly why copyright cannot be compared to the kind of personal rights that can be monetarized. In this latter group of rights, people can exercise them regardless of whether or not they would be harmed.

Remarkably, some other Arab scholars who believe that copyright is a personal right seem to have felt the need to also demonstrate that it is not a property right. These scholars argue that a person’s intellectual production cannot be separated or detached from his or her self, even if it ends up taking one or another physical form that is sold or exchanged. On this view, the locus of a person’s intellectual production is his inner self, not even the physical container that happens to give form to that production to sell to others. From this, it follows that if someone copies an author’s work without their permission, it is as if he infringes on the very self of that author.^[21]

Thus, the crux of disagreement between those who regard copyright as a personal right and those who regard it as a property right seems to be the locus of authorship and creativity. Those who argue for personal right locate intellectual property in the inner self of its creator, whereas those who argue for property right locate it in the physical form that creativity takes. In other words, whereas those who argue for the personal right attach authorship and creativity to a person (the author or creator), those who argue for property right attach them to a thing (the “container”). However, as the Libyan scholar Ahmad Salama Al-Ghiryani (2017, 54–55) perceptively points out, the first group does not deny that the physical form that the intellectual production assumes is separate from its author, no does the second group deny that intellectual production in its physical container is originally located in the author’s inner self. The difference between the two groups, however, is a matter of emphasis, al-Ghiryani argues – whereas the first group of scholars emphasizes the internal location of intellectual production and characterize it accordingly, the second group emphasizes the external location of that production as the ground of the right characterization and determinant of the relevant rules. Al-Ghiryani himself argues that because intellectual production cannot be transferred to another in exchange for money, nor can it be separated from its physical “container,” it cannot be defended as a property right. The inseparability of the abstract and physical aspects of intellectual production means that the abstract component cannot be exchanged independently from the physical component. In fact, the abstract component, for all practical purposes, is no more than an attribute (ṣifa) of the physical component.^[22] And because this abstract component of intellectual production cannot be delivered independently from its container, it cannot be considered a form of property and is, therefore, ineligible for exchange in a trade transaction from the perspective of Islamic law (ibid., 41–42). Inevitably, therefore, we must conclude that copying a book that a person has purchased is not a transgression on anybody’s property. This, however, does not necessarily mean that the copier is not blameworthy on other grounds, al-Ghiryani concludes.

Additionally, Al-Ghiryani (2017, 45) points out that some pre-modern Muslims scholars had actually distinguished between rights depending on whether or not they can be bequeathed. On this view, things that are bequeathable establish property rights, whereas things that are not do not. This latter category of things includes a person’s ideas and views, such as his fatwas, which one cannot surrender or bequeath to another.^[23] Now, these things cannot be bequeathed or surrendered (or, for that matter, sold) for the very fact that they cannot be separated from their holder. It is precisely this inseparable relationship between a person and their intellectual production that gives them rights in their intellectual production. Authors accepting this argument, however, did not necessarily agree that those rights have to be financial (ḥuqūq māliyya); instead, they mostly argue that it establishes moral rights similar to those that were already acknowledged and respected in Islamic history. These include the right of attribution or “paternity” (nisba), on which Muslim scholars insisted, as the Syrian scholar Al-Buti (1991, 82–83) points out. Other scholars have emphasized how Muslims have meticulously authenticated statements and texts through the study of chains of transmission, the insistence on mentioning one’s sources when transmitting knowledge, and prohibiting lying and plagiarism (Abu Zayd 1996, 128–131, 165). Al-Kurdi (1979, 16) adds to this argument that failure to attribute a book to its author is a kind of cheating and deception (tadlīs) that is forbidden in Islamic law, and tampering with its content is a form of dishonesty that is both a sin and a crime. Author’s rights also include the right of authors to withdraw (saḥb) their publications or revise them (Abu Zayd 1996, 164).^[24] Other scholars have added to this the right to not disclose one’s intellectual production, relying on a Prophetic tradition that warns against looking in others’ books without their permission.^[25]

Finally, some Muslim scholars have provided additional argument to argue for the validity of copyright away from the traditional kinds of rights known to pre-modern Muslim jurists. These scholars rely on a number of traditions that are taken to establish certain rights, including monetary rights, depending on the principle of precedence (asbaqiyya). In one such tradition, the Prophet is reported to have said: “He who reaches that which no other Muslim had reached before him is entitled to it.” In another tradition, the Prophet is reported to have said: “He who cultivates a dead land shall own it” (Al-Tamimi 2020, 89). By the same logic, some Arab scholars have argued that if an author develops new ideas, he has the right to benefit from them and even “own” them, just as a scholar who finds a manuscript is entitled to print, edit, and distribute it (see Abu Zayd 1996, 170).^[26]

2.3 Copyright: Is it a Contract?

One other angle from which some Arab scholars have approached the issue of copyright is the contractual arrangements among the parties involved in the process of intellectual and creative production, distribution, and consumption. Arab scholars supportive of copyright have argued that the copyright clause in any book (All Rights Reserved) or creative work represents a condition (sharṭ) in the contract of sale that a purchaser accepts by purchasing a copyrighted work. This argument, adopted by the Council of Senior Scholars in Saudi Arabia (Al-Tamimi 2020, 125) is used both independently in support of copyright, or as an additional argument to copyright being a right protected under Islamic law. Yet, as is the case with other arguments, this argument has its own problems, foremost among which is the question of whether this restrictive condition is valid in the first place.

Those scholars who have accepted the validity of this condition rely on two Prophetic traditions. The first tradition provides that Muslims should abide by their conditions.^[27] The second tradition prohibits taking someone’s property or money (māl) without their free consent (Al-Ghiryani 2017, 60).^[28] Additionally, some pre-modern Muslim scholars, such as the prominent Hanbali scholar Ibn Taymiyya (d. 1327), for instance, held that restrictive conditions are generally valid, a view that he attributed to some early Muslim authorities. In fact, Ibn Taymiyya claims that a consensus (ijmā‘) existed on the validity of setting certain exceptions on the use of a sale item. By analogy, a seller of a creative work (an author or a publisher) can stipulate in the sale contract that the purchaser of the work abstain from copying it (ibid., 61–62). Here, Ibn Taymiyya proceeds from the premise that the default rule is that any consensual contractual condition is valid unless it violates textual evidence, a view that was indeed characteristic of Ibn Taymiyya’s Hanbali school of law (ibid., 73).^[29]

On the other hand, those who reject the validity of that condition have argued that any condition to the effect of restricting the right of a purchaser to use his or her purchase in whatever way they like is invalid. These scholars proceed from a different assumption, that is, conditions are valid if, and only if, they are stated in the sources of Islamic law. They rely on a tradition where the Prophet is reported to have said that any condition that does not exist in the Qur’an is invalid. Ibn Taymiyya himself attributes to Zahiri and Hanafi jurists the view that only conditions that the Shari‘a explicitly stipulate and endorse are valid (Al-Ghiryani, 65).^[30] But contrary to Ibn Taymiyya’s claim of consensus on restrictive conditions, some Arab scholars have attributed to some significant authorities from the early Muslim generations the view that any condition that would restrict the ability of a purchaser to use his purchase the way he likes was invalid (ibid., 62–63).

We have seen earlier that al-Kurdi, who was among Arab scholars who have rejected the validity of copyright as a condition of sale, avoided discussing technical issues that he seems to have thought were irrelevant or would weaken his primarily ethical position. Nonetheless, he was aware that he needed to reckon with the reality of his age, where there are authors, publishers, and readers and consumers of creative works. Al-Kurdi (1979, 16), therefore, seems to have decided to offer an alternative to copyright by theorizing on the contractual relationship among the various parties to the process of intellectual and creative production, distribution, and consumption. He points out that there are four possible scenarios of the contractual relationship among these parties. In the first of these scenarios, an author submits a completed book to a publisher who would print, distribute, and sell it. Here, al-Kurdi argues, the author sells his book to the publisher, and all Islamic rules of sale (bay‘) applies to the sale contract between the two parties. The assumption here seems to be that by selling the book to the publisher and receiving his compensation, the author relinquishes his financial (but not moral) rights in the book, which the publisher would sell at whatever price they decide and keep all revenues. The second scenario is when an author enters into an agreement with a publisher to write a book for the publisher to print, distribute, and sell. Here, the publisher hires the author to write the book in return for a particular compensation, and all Islamic rules of hire/rent (ijāra) apply to the two parties. This includes the requirement that the compensation be fixed and agreed upon at the time of the agreement and cannot be a royalty or a percentage of the sale of the book.^[31] Again, it is the publisher here who would decide the price at which to sell the book and keep all the revenues.

The third relationship is when an author writes a book and print it out of pocket, and then submits it to a publisher to distribute and sell it. Here, the author is the one who hires the publisher to distribute and sell the book in return for a particular compensation, and all rules of ijāra similarly apply to them, including the requirement of a pre-agreed and fixed compensation. Al-Kurdi (1979, 14–15) does not mention here who would decide the price of the book or take the revenues, but we can assume that since the duty of the publisher in the agreement is simply to market the book (for which they are already compensated), the sale revenues would go the author. So far, al-Kurdi’s scenarios focus on the relationship between authors and publishers. Readers, however, resurface in the fourth scenario. Here, the author writes, prints, and distributes the book out of pocket and does not hire anyone to do anything on his behalf. Again, al-Kurdi does not mention how the author would decide on the price of the book and whether this has to be calculated in light of the costs that he incurred. However, he moves on immediately to this question: what if someone buys the book and begins to copy it without the author’s knowledge (or consent), does this make that person a transgressor from the point of view of Islamic law? We already know al-Kurdi’s answer to this question.

For his part, Al-Buti (1991, 87), who endorses copyright wholeheartedly,^[32] argues that there are two possible contractual agreements. The first one is between the author and the publisher, whereby the latter purchases a manuscript from the former (who must submit this manuscript in exchange of money) and become the new owner of the book. From this time on, the author only retains his moral rights in the book and surrenders his monetary rights to the publisher, either fully or partially (i.e., for a specific time). The second arrangement is when an author sells hard copies of his or her intellectual work to individual purchasers, not to the publisher, who would be no more than an intermediary between the two sides of the agreement (ibid., 88). What al-Buti stresses here is that for any sale agreement to be valid, the relevant monetary value has to attach to something physical, not to the ideas and views laid down in the book or, for that matter, aesthetic side of a work of art. Remarkably, al-Buti adds that in the first arrangement, the publisher cannot print copies of the book more than what has been agreed upon with the author, nor can the individual purchasers make copies of the purchased copies. These, al-Buti argues (ibid., 88–89), would be considered as acts of usurpation or theft. But what exactly is usurped here is not clear, given that it cannot be the further physical copies that had never been with the author in the first place.

On a different view, Al-Ghiryani (2017, 27) argues that the contractual arrangement between the author, on the one hand, and the publisher and reader, on the other hand, involves two separate and different agreements. It involves a sale agreement in which a physical copy of a book is exchanged for a specific sum of money. As the owner of this physical copy, the purchaser can use its physical material in whatever ways they wish. The use of the knowledge contained in the book, however, is subject to a lease agreement, in which the lessee (i.e., the publisher or purchaser of the book) can only use the knowledge without any entitlement to its ownership. In other words, when an author sells a book (to individual purchasers through a publisher), he is selling a physical copy of the book and leasing, at the same time, the ideas that he has developed in the book. This, al-Ghiryani points out, is analogous to the more common lease agreements, where a person rents an apartment from another – here, the lessor gives the lessee permission to use the property, not to own it.^[33]

Finally, Al-Durini (1981, 21) points out that to bypass the early tight Hanafi definition of money, later Hanafis insisted that a utility can be considered as money only exceptionally by a contractual agreement. In other words, it is the contract that validates what is otherwise invalid or inconsistent with analogy.

What we have presented so far are the most important and detailed arguments that Arab scholars have introduced for and against copyright from the point of view of Islamic law as they understand it. Some other arguments are shorter and tend to avoid involvement in technical legal details that, as must have been clear by now, tend to be controversial, and focus instead on what they regard as principles of Islamic law, such as interest (maṣlaḥa) and necessity (ḍarūra), and judicial preference (istiḥsān),^[34] even if these happen to contradict analogy (qiyās) and other established legal rules and norms of Islamic law (Al-Ghiryani 2017, 7). In fact, one argument seems to rely on the controversies that we have seen to conclude that copyright does not contradict any clear or incontrovertible textual evidence, established consensus (ijmā‘), valid analogy (qiyās), legal rule, or even an opinion from the Prophet’s Companions (Al-Tamimi 2020, 106). Similarly, Al-Zuhayli (2006, 584) is willing to disregard all the technical issues and concerns that the notion of copyright raises and rely simply on the notion of utility and interest to wholeheartedly endorse it: copyright, he states, is “a firm right (ḥaqq thābit) established by jurisprudential reasoning (ijtihādāt), general customs, and the principles of justice and interest”. These views simply shift the burden of proof to those seeking to dismiss copyright, capitalizing on the view that permissibility in Islamic law is the default rule,^[35] whereas prohibition is the exception that can only be established by strong evidence based on the sources of Islamic law.

2.4 Copyright: Necessity, Fairness, Interest, and Authority

The two arguments of necessity (ḍarūra) and interest (maṣlaḥa) are used as additional arguments, or as a last resort when a scholar feels that all other arguments have failed. Here, even if the validity of copyright cannot be established by reference to more “regular” Islamic rules, it can be justified as an exceptional arrangement that accommodates certain necessities and fulfil certain interests.^[36] For example, it is argued (e.g. Abu Zayd 1996, 173) that since it is a fact that in our age people are less scrupulous than they were in the past, authors must protect their intellectual production.^[37] In another argument (e.g. Sulayman 2008, 4), if authors would not write unless they guarantee that they would benefit from their writing, then they should be given assurances of benefit under the rule that if a desirable act is contingent on another act, then this latter act becomes desirable itself.^[38] Al-Durini (1981, 65–67) approaches the issue of maṣlaḥa from the angle of the principle of sadd al-dharā’i‘ (blocking the means [to a prohibited end]). According to this, author’s financial rights should be protected; otherwise, these rights would be violated, which would discourage them from conducting research, which in turn would harm the entire Umma. Later (ibid., 68), he also employs the principle of necessity (ḍarūra) to argue that authors can charge money for their intellectual production; “late scholars,” he argued, “held that one can take a compensation in return for commissioned acts of obedience (ṭā‘āt).”^[39] Finally, he draws analogy between God’s justice to people in the Day of Judgement, and the fairness that we must implement in our world. Under this principle, people should be properly compensated for their work (ibid., 105).^[40]

Now, if copyright is matter of an exceptional arrangement that cannot be justified with reference to the regular rules of Islamic law, it needs a certain authority to develop its rules, oversee its implementation, and enforce it. Here comes the role of the head of the Muslim state,^[41] who, Arab scholars argue, has the prerogative to make exceptions for the benefit of the entire society. On the particular issue of copyright, the exception would relate to the general rule of owners’ freedom to use their properties (by copying it, that is), but also to the authors’ freedom to allow readers to only use the physical copies that they own in a particular way. In other words, if the head of the state finds it necessary (ḍarūrī) to put restrictions on both authors and readers to serve a valid interest or prevent a particular harm (mafsada), then he has the capacity, nay the duty, to do that under Islamic law (Al-Ghiryani 2017, 110–113). Thus, a ruler may decide that restricting the freedom of owners of copies of intellectual and creative works to make copies of them would boost scholarship and creativity. Conversely, he may decide that there is public interest in publishing or republishing a particular work, even without the author’s consent. In this latter case, the rule can legitimately order the publication of the work and pay a fair compensation to the author (Ahmad 2019, 33). Here, the notions of necessity and interest are key, but also the notion of obedience to the ruler who has the prerogative to weigh various individual and social interests and harms and make a decision that he deems sound and fair to everyone in each particular case.