In October, The Islamic Texts Society released “Copyright in Islamic Law” by Mohamed Ahdash (Muslim College, London). The publisher’s description follows:
Copyright in Islamic Law is the first work in English to systematically address the ideas of intellectual property and copyright from an Islamic perspective. The author builds a framework from within Shari’a law to address the concepts of intellectual property and copyright. In so doing, he adopts the classical usul al-fiqh approach by firstly defining the key terms associated with the field, namely: right (haq), ownership (milkiyya), wealth (mal), and utility (manfa’a). Dr Ahdash then analyses how these terms are used in the Qur’an and in the Hadith before looking at how the secondary sources of qiyas (analogy), maslaha (public interest), ‘urf (custom) and al-qawa’id al-fiqhiyya (legal maxims) can be applied to copyright. The result of this study is a framework wherein the concept of copyright is defined and understood in an Islamic manner. This then gives a consistent approach from which specific rulings can be derived. Copyright in Islamic Law is a ground-breaking study not only within Shari’a law, but also by making a contribution to the on-going debates on copyright in general.
Roberta Rosenthal Kwall (DePaul University College of Law) has posted Is the Jewish Tradition Intellectual Property? The abstract follows.
Whether works of authorship should be protected from unauthorized changes and, if so, in what manner, are questions of endless fascination to intellectual property scholars. Jewish law is not typically considered a “work of authorship” although in many ways it can be so viewed. This article is concerned with exploring the Jewish tradition as intellectual or cultural property. It focuses on the human dimension of creativity embodied in the Jewish tradition, and how that dimension is manifested in the rabbinic interpretation of Jewish law. The resulting tradition — as it is embodied in both the Jewish texts and lived by the people — has afforded the Jewish people their unique identity throughout the ages. Simply put, the Jewish tradition is a very unique form of cultural property. This analytical framework has significant implications for how to negotiate the balance between preservation and development of the tradition.
The University of St. Thomas (Minnesota) will host a conference, “Intellectual Property and Religious Thought,” on April 5, 2013. The conference will bring together legal scholars, religious ethicists, religion scholars, and theologians for an interdisciplinary discussion of how religious themes, practices, and communities may inform and shape intellectual property law and policy. The call for papers is here.
I’ve always been mystified by ICANN (the “Internet Corporation for Assigned Names and Numbers”), the US non-profit corporation that manages the internet. Somehow, and without governmental authority, ICANN has gotten users around the world to accept as authoritative its decisions on internet protocols and, in particular, “generic Top Level Domains,” or “gTLDs” — the familiar .com, .org, and .edu designations at the end of internet addresses. A good example of spontaneous ordering, I guess.
Anyway, this spring, ICANN invited proposals for new gTLDs. The organization is now taking public comments. Given the importance of religion on the web, it’s not surprising that many of the proposed new gTLDs involve religion, and that some of them are causing controversy. For example, the Vatican has requested that it receive a new gTLD, “.catholic.” Among the objectors to this proposal is Saudi Arabia, which points out that other Christian communions, for example, Eastern and Oriental Orthodox, also refer to themselves as “Catholic”; the designation would thus create confusion. Actually, Saudi Arabia has objected generally to new gTLDs that name particular religions – for example, “.islam,” – on the ground that no one entity should be able to claim the internet identity for an entire religion. It’s an interesting point. ICANN will accept comments on proposed gTLDs until September 26. (H/t: Christianity Today).
Earlier this month, Sweden’s Legal, Financial, and Administrative Services Agency, the Kammarkollegiet, recognized a new religious organization, the Missionary Church of Kopimism. Kopimism – the word derives from “copy me” – is, according to the church’s website, a comprehensive philosophy of life “animated by the desire to be copied and copy.” Its spiritual leader is 20-year old philosophy student Isak Gerson. Kopimism is non-theistic, but it has “priests” and axioms of faith, including the belief that file sharing is “sacred” and the internet “holy.” Followers are called to live their lives according to Kopimist values, encapsulated in this basic creed: “From all to one and from one to all – and then back again – exchange without beginning and without end.” (Kopimism is not big on copyright laws). The fact that it is now a registered religion means that Kopimism can apply for government subsidies and permission to conduct marriage ceremonies.
Western legal systems, including the American, have had a notoriously hard time coming up with a workable definition of “religion,” one comprehensive enough to cover the variety of human religious experience but narrow enough to be meaningful. Judges have used substantive, functional, and analogical tests. I’m not sure which the Kammarkollegiet uses. Frankly, though, it’s hard for me to see how Kopimism would qualify as a religion under any of these approaches. The Kopimists themselves seem to endorse the analogical approach: although many Swedish Christians condemn Kopimism as a joke, they say, Kopimism actually resembles traditional Christianity, whose monks understood the value of copying and disseminating information. No word yet whether Kopimism’s American branch will seek a religious exemption from SOPA, the proposed Stop Online Piracy Act.
Further evidence for the free-market model in American religious life: churches increasingly trademark their names and logos to avoid consumer confusion. The practice is especially useful for megachurches, lawyers say. As one explains:
When a church registers its trademark, it’s a simple and low-cost way to protect against ‘identity theft’ by preventing others from misusing its good name and reputation while protecting its investment in branding and name recognition. It makes all the sense in the world, and is good stewardship of a church’s assets. It allows the church to secure their marketing and secure the usage of that trademark, and to make it clear to the community who they are. It’s useful in the environment that we live in today with the Internet and the amount of resources that get dedicated to marketing.
There is some dispute whether churches can trademark names only, since so many church names incorporate common Biblical phrases. Trademarking both names and logos seems the way to go.
Nora El-Bialy and Moamen Gouda (University of Hamburg and Philipps University Marburg) has posted Enforcing IPR Through Informal Institutions: The Possible Role of Religion in Fighting Software Piracy. The abstract follows. – ARH
The existence of formal IPR laws can be considered a prerequisite for having efficient law enforcement but does not imply efficient enforcement in itself. A simple model is constructed to explain the interplay between the IPR law and human behavior within counterfeiting countries. It shows how a politically monitored IPR enforcement strategy is able to alter formal IPR laws or institutions but might not affect informal institutions, or human morals and behavior, to the same extent, hence barely affecting piracy situation. The model shows the essential role of informal institutions and its sanction mechanisms in the enforcement process. The main obstacle of IPR enforcement is that people are still not convinced that IPR violations are unethical. Religion can be considered an informal institution that might support or hinder formal laws issued with regards to IPR and hence influence de facto enforcement of laws,especially in countries with high piracy rate if a high adherence to religion is found. As the Religion-Loyalty Index (RLI) developed by this study shows, Muslim countries have the highest religiosity level among different religions. Consequently, an investigation of how Islamic jurisprudence views IPR piracy is conducted. As Islam generally prohibits IPR piracy, a set of policy recommendations based on new institutional perspective is presented that can effectively help in minimizing IPR piracy in developing countries in general and Muslim ones in specific.
Stephanie B. Turner (a student at Yale Law School) has posted The Case of the Zia: Looking Beyond Intellectual Property Law to Protect Cultural Rights. The abstract follows. –YAH
This Article focuses on an ongoing dispute in trademark law: the case of the Zia. Located near Albuquerque, New Mexico, this Native American pueblo has been using its sacred sun symbol in religious ceremonies since 1200 C.E. The symbol now appears on the New Mexico State flag, letterhead, and license plate, and on commercial products ranging from chemical fertilizers to portable toilets. The tribe claims that the State appropriated the symbol without permission in 1925, and that the continued use of the symbol by various parties dilutes its sacred meaning and disparages the tribe in violation of Section 2(a) of the Trademark Act. This Article tells the Zia story, focusing on the harms the tribe faces when others appropriate its symbol and the possible solutions. It concludes by suggesting that indigenous groups like the Zia should move beyond intellectual property laws in the fight to protect their cultural rights.
An interesting judgment from the European Court of Justice this week relating to work with human embryonic stem cells: In response to a certification from the German Federal Court of Justice, the ECJ held that the European Directive on the Legal Protection of Biotechnological Inventions (1998) forbids the patenting of human embryos, or techniques that require the destruction of human embryos, for industrial or commercial purposes, including purposes of scientific research. The Directive prohibits patents for “uses of human embryos for industrial or commercial purposes,” and indicates that this prohibition extends to all processes that “offend against” the fundamental principle of “human dignity.” The ECJ concluded that the Directive’s reference to “human dignity” required that the phrase “human embryo” be “understood in a wide sense” to include not only fertilized human eggs, but also unfertilized eggs and stem cells, if they are “capable of commencing the process of development of a human being.”
The concept of human dignity is a fundamental one in European law; many religious-freedom cases in the ECtHR employ it, for example. The concept is not so prominent in American jurisprudence, which tends to be more libertarian. Some scholars argue that roots of the principle in European law lie in Catholic Social Theory, and the principle is certainly consistent with Christian ethics. I assume that, like most concepts in European jurisprudence, the principle has roots in Enlightenment thought as well. The judgment is Brüstle v. Greenpeace (Grand Chamber) (18 Oct. 2011). – MLM