In the Name of Allah, Most Merciful and Compassionate
21 October 1997
Dear Sidi Hamza,
As-Salamu 'alaykum wa rahmatu Llahi wa barakatu.
I was asked about copyrights at the Shafi'i fiqh lesson at last winter's Toronto din intensive. The answer I gave was that copyrights are an issue differed about between the sheikhs I have studied with.
Sheikh 'Abd al-Wakil Durubi (Allah have mercy on him) said that they had no basis in Sacred Law. From this point of view, nothing prevents someone who has bought a book from doing anything he wants with it, including copying it and distributing copies, for commercial or noncommercial purposes.
Sheikh Nuh 'Ali Salman told me that he used to be of this opinion until talking to Sheikh Shu'ayb Arna'ut, who pointed out, in effect, that authors, editors, publishers, and others work hard for long years to produce a single work, and if their work could be lifted by anyone the moment it hit the market, they could not financially survive. Here, what prevents someone who has bought a book from copying and distributing it is the resultant darar or harm to another's livelihood, which is of course unlawful, and in which sense "copyrights" may indeed be termed "rights."
Hedaya has told me that she asked one of her legal resources at al-Azhar who mentioned the fatwa that one could reproduce one's own personal copy of a book for others, as one does have usufruct of it as the owner, but could not commercially market such copies because of the harm entailed to others' livelihoods.
Though I do not, as you know, have a great deal of confidence in Azhar fatwas from the present century, because of the spirit of permissiveness that pervades many of the scholars there, I do incline toward this view on literary properties, representing as it does as sort of happy medium between the two views of my sheikhs. But it contains a noticeable gap respecting software programs, of which "just one copy" most often does harm the author or designer, as it is generally the norm for unauthorized copies among users. So about software, I don't know what to say, except that perhaps the usufruct of making even a single copy should be considered curtailed by the manifest, demonstrable harm it entails to designers and manufacturers.
There is a final aspect that seems important to me as writer and translator, which is the documentary value of copyright registration, which prevents others from taking one's work and, for example, bowdlerizing it, or chopping out parts they disagree with, or even adding their own ideas as if they were yours, or ripping off vast chunks of yours as if theirs.
Copyright manuscript registration prevents these acts under the rubric of "rights over derivative works," and is hence a measure of documentary surety. It cannot be lost on you as a student of jurisprudence that the scholars of Islam have confirmed nearly every new measure of a documentary nature in mu'amalat or "dealings" in the history of jurisprudence; from surveying and recording plots of land, ownership deeds, censuses, and central registry of marriage contracts in Muslim towns and have not view such archival documentation as reprehensible innovation.
'Abd al-Wahhab Sha'rani mentions the practice of al-Azhar at his time of taking an original copy from the author for works, as a surety against those who would introduce things into the works out jealously, etc. He had recourse to such a copy of his own al-Yawaqit wa l-jawahir on file at al-Azhar, to exonerate himself when enemies inserted kufr into copies of it and circulated it in his name.
Copyright registration helps such documentation and by legally protecting derivative works, prevents such abuse. I use them: it is hard enough writing something that is of publishable quality, and original work should be protected against the depredations of others. And Allah knows best.
With affection and respect,
Nuh Ha Mim Keller
© Nuh Ha Mim Keller