Introduction
Research is fundamental in the development of intellectual property that can drive the country’s industrial revolution. According to statistics in 2020, total world research spending will reach USD 2.2 trillion, with the US spending of USD 597 billion, USD 533 billion in China, USD 191 billion in Japan, and USD 128 billion in Germany (Statista, 2021).
Intellectual property (IP) refers to creations of the mind. Intellectual property is generally divided into four namely copyright, patent, trademark, and trade secret. The term “Intellectual Property” which means intangible property only came into use beginning in the late 1980s.
There is evidence that patents are the earliest intellectual property and it dates back to the Greek period. Patent was systematically granted in Venice in 1450 which gave the right to prosecute any infringement of a patent.
Copyright did not exist until the printing press was invented by Johannes Gutenberg in Strasbourg, France in 1440. The concept of copyright was developed in England in reaction to the scandalous printing of books and pamphlets involving dignitaries when the British Parliament passed the Licensing of the Press Act 1662.
The Statute of Anne introduced in 1710 in England and Scotland was the first law to protect copyright. In 1814, the copyright was extended to the author. The Berne Convention for the Protection of Literary and Artistic Works of 1886 protects authors in countries that have signed the convention.
However, in the copyright of religious books, its ownership is unclear. According to the Berne Convention, copyright is granted to the author of the work. The Al–Qur’an, which is the words of Allah conveyed through Rasulullah SAW, is a public right. Some other religions also claimed that all or parts of the written works are conveyed by God and thus become a public right, such as the book of Rigveda by the Hindu religion. The Bible is also a public right, but its translations have various copyright owners because of their unique editions or translations such as the Biblica, Inc.™ version. In the United Kingdom, the King James Version of the Bible is protected by the crown copyright through letters patent to avoid version variability.
Trademark is a type of intellectual property that consists of a mark, design, or expression to identify a particular product or service that is different from another. The first law on trademark was enacted in 1266 under the reign of Henry III, which required all bakers to use a special mark for the bread they are selling.
Research and Innovation Focus.
Research and innovation are often directly linked to the expansion of a company’s goods or services. A company generally incurs the expenses of research and innovation in the process of finding and creating new products or services. Developed countries have invested heavily in research and innovation development in producing intellectual property.
Research is the systematic survey and study of materials and resources to prove facts in order to reach new conclusions. The foundation and room to initiate research and innovation can be gained through reading, experience, or inadvertently while conducting research. Findings can be registered as intellectual property if the results of the research and innovation are new things or improvements involving services or products.
Furthermore, factual findings in the research that produce various forms of intellectual property along with a combination of various knowledge are processed to develop innovations that can solve problems or meet the needs of the human ecosystem as a whole. These innovations that have been proven and widely used are known as technologies.
In the process of conducting research and innovation, confusion in understanding the differences between scientific and engineering studies, especially on the part of policymakers, can lead to a slowdown in the development of progress and civilization of a country. Research and innovation policies should end with the nation’s ability to create and improve products and services by adding value to resources in a sustainable manner, which can be seen through the production of intellectual property.
Research and innovation require large investments to ensure rapid development in the study of science, art, and engineering. Studies of engineering involve new inventions to solve human problems in order to improve products and services. These engineering innovations will be brought to the industry for adoption. Acceptance of the results of this innovation depends on how far the creativity of the researchers can highlight the services and products to provide satisfaction to humans, especially in terms of sustainability, cost, and aesthetic value.
Without substantial investments and accurate understandings of the role of research and innovation in producing intellectual property, the country will be stuck from transitioning from a developing country to a developed country. As a developing one, the country is only focused on the technology users and not creators of intellectual property.
In Malaysia, for example, most of the job opportunities offered by companies are more geared towards technology end-users. As a nation of services and technology end-users, low—wages are offered to the job sectors due to the low ability to create high–tech services and products. This is not in line with the production of higher education graduates who hold undergraduate and advanced degree certificates.
Also, the fields of study offered are mostly more focused on the field of art and literature. The production of literary graduates is not in line with the job demand required by the industry. In 2020, the key areas of employment offered are engineering, computer science, business, agriculture, actuarial science, chemistry, occupational safety and health, graphic and multimedia design, medicine, and logistics and supply chains.
Creating new products and services through the efforts of research and innovation to adapt to existing resources is the core of the field of engineering that requires knowledge of science and mathematics. The failure of society to assess problems and needs, analyze the right answers to each question, and create competitive creation results in resources being sold only in raw form to the developed countries that have the ability to create and improve the value of products and services.
Value-added basic products and the latest technologies are being sold by developed countries to consumer countries at high prices. This causes developing countries to remain as end-users and paying for products and services at high prices.
Science, in general, is the study of understanding the physical world. Scientists argue that scientific research should adhere to the scientific method, which is a process of evaluating empirical knowledge that describes observable events without using the concept of the supernatural.
Engineering, on the other hand, uses scientific knowledge to create products or services for an entire community within a limited range of economies, environments, and resources. Engineering can also be termed as the creation of processes, structures, or equipment to help human beings progress and become more civilized.
The industry is defined as an economic activity related to the processing of raw materials to produce products and the manufacture of goods in factories. The industry needs all fields of knowledge that include science, mathematics, arts, engineering, and technology to produce more competitive products or services.
In producing answers to human questions and needs, if the answer to the problem is already in the market such as wanting to cool a hot room or installing a security alarm system to prevent theft, the solution no longer requires the creation of something new, instead only using existing technology, then it is technology. If existing technologies cannot meet the desired requirements, improvements or new inventions are required and in this case, it involves engineering knowledge.
The dividing line between technology and engineering is thin. The technology uses engineering inventions that have existed for a long time and can be used to perform common tasks. Engineering knowledge is more oriented to creating new products or services for new or specific problems. Another difference is that engineering is creating new inventions which have not been fully tested. Technology on the other hand, has been around for a long time and has been applied to various fields and has been extensively tested thoroughly.
Another cause that hinders the development of innovative production of local products in developing countries is the role of export and import business cartels that have ties to certain influential groups in government. Traders that are associated with such groups will make easy profits through export and import business transactions. For example, the import of fresh meat which has been rampant for over 40 years and has been found to be not halal-certified was a key reason the development of the local halal meat industry was unable to compete.
Research and Intellectual Property in Islam
Countries with a majority Muslim population have recognized the efforts to protect intellectual property generated through research and innovation. Malaysia, for example, began to introduce the Trademark Act in 1976, the Patent Act in 1983, and Copyright Act in 1987 as well as trade rights related acts thereafter. The Intellectual Property Corporation of Malaysia Act came into force in 2003 with the establishment of the corporation now known as MyIPO.
There are many prohibitions of hiding knowledge in the Qur’an. Among them are, “In order that you not despair over what has eluded you and not exult [in pride] over what He has given you. And Allah does not like everyone self–deluded and boastful–[those] who are stingy and enjoin upon people stinginess. And whoever turns away–then indeed, Allah is the Free of need, the Praiseworthy.” [Surah Al–Hadid 57:23–24]. “Who are stingy and enjoin upon [other] people stinginess and conceal what Allah has given them of His bounty–and We have prepared for the disbelievers a humiliating punishment.” [Surah An–Nisa 4:37].
Rasulullah SAW has said which means, “Whoever is asked about knowledge and he conceals it, Allah will clothe him with a bridle of fire on the Day of Resurrection.” [Hadith Narrated by Abu Dawud and at–Tirmidhi].
The question is, is intellectual property included in the prohibition of concealing knowledge according to the tradition of Rasulullah SAW? In other words, does the protection of intellectual property underlying patents and copyrights lead to the concealment of knowledge from an Islamic perspective?
The concept of modern intellectual property is based on property rights over an idea or form of expression that gives the monopoly holder limited rights over a period of time. Monopoly is created in the form of an exclusive right over the subject matter–that can be considered as knowledge–to exempt others from using the intellectual product without permission or monetary compensation.
However, the right to know and understand the knowledge behind the intellectual property is always open, even more so in this borderless world. Information can always be obtained easily and quickly. A closer look at the intellectual property mechanism clearly shows that the whole structure and rules do not lead to the concealment of knowledge, but only to protect intangible property rights.
The concept of mulk (property) under Islamic law includes tangible and intangible assets. Since intellectual property rights are intangible assets, the owner can be considered a person eligible for personal property protection under Islamic Sharia.
Professor Al–dereni, who studied the four major schools of Islamic law (Hanafi, Maliki, Hanbali, and Shafie) asserts that the majority of those schools accept intangibles as a subject of ownership (mulk), much like tangible property. Professor Al–dereni further states that there is nothing in the Al–Qur’an, Sunnah, or Islamic sources that states intangible property as non–property. Only the conservative scholars of the Hanafi school reject intangible property as a form of property because they regard physical ownership as the basic condition of property.
In today’s capitalistic world, intellectual property together with one’s knowledge, experience, and thinking skills are intangible assets acquired through efforts, time, and money. Extensive knowledge and intellectual property generated through the research process are widely used in lucrative business dealings.
Advisory services and intellectual property are in the form of professional services based on the agreement of responsibilities that must be borne between those who offer services and those who wish to obtain professional advice.
Without the protection of intellectual property, the efforts made toward the invention will go unappreciated and unprotected which could lead to the exploitation of the rich; while human beings are made to complement and in need of each other.
In the world of writing and filmmaking, intellectual property in the form of copyright is highly relevant in publishing ethics. Dissemination and reproduction of ideas and language expressions and findings made by copyright owners without permission are illegal. Without intellectual property ownership rules, there will be piracy and republishing of the writings of others.
The attitude of republishing what has been published elsewhere often occurs in the academic and artistic worlds even though copyright has been handed over to the previous publisher. The act of republishing writing or work of art is considered a violation of academic ethics from a legal point of view. However, writings that involve public interest such as news reports by the media can be republished. This is the main reason the media endeavors to be the fastest and most accurate news presenter.
What is the scope of intellectual property that can be protected? The scope that can be covered under the international intellectual property system and the western world is very wide. The international body of intellectual property is only restricted by public order with loose moral concepts by the liberal notions of personal freedom and human rights.
Islam also encourages scientific research to carry out the task of being the caliph of Allah for all His creations. But Islamic law has its own moral concept, which emphasizes that the door to knowledge cannot be left wide open without limits. Research should be based on the law which only allows what is legal (halal) and prohibits what is illegal (haram) even though technically the research can be done.
Allah says in Surah at–Tin 95:4 which means, “We have certainly created man in the best of stature.” So any changes to the living organisms in a way that is contrary to their nature set by God Almighty such as changing the genitals of men and women is prohibited, thus changes to the human body or body parts must be exempted from patent rights.
In some Islamic countries, Sharia law on the scope of research and patent rights has been explicitly stated. The patent system of the Gulf Cooperation Council clause 2, for example, stipulates that an invention can be patented if it is not contrary to Islamic law.
If the research is a process of treating the genetics of the human body to fight diseases such as cancer, such research should be feasible and intellectual property registered to its creator. What about research that can record human thought patterns through sensors implanted in the human brain to record what humans are thinking using artificial intelligence or machine learning tools?
What about research to explore the planets, and develop technology to control natural disasters? What about time machine tools that are physically proven but still unsolvable in engineering problems? All this research is subject to the rules of the Islamic law that must be considered immediately by Islamic scholars that must be detailed through fatwas.
Islam was not left behind during its heyday around the 10th to 12th century. But due to differences of opinion on halal and haram aspects of knowledge in research at that time, today’s countries with a majority Muslim population are far behind compared to the western world. — By: Prof Ir Dr Rosalam Sarbatly, Faculty of Engineering, Universiti Malaysia Sabah. (Email: rslam@ums.edu.my)
Reference
Statista. (2021). Total global spending on research and development (R&D) from 1996 to 2018. Retrieved from https://www.statista.com/statistics/1105959/total-research-and-development-spending-worldwide-ppp-usd/
