Ahdash, Mohamed Ali (2008) Foundations and conditions of copyright in Islamic law. Doctoral thesis, University of Wales Trinity Saint David.
|
Text
1053, Ahdash 2008.pdf - Accepted Version Available under License CC-BY-NC-ND Creative Commons Attribution Non-commercial No Derivatives. Download (13MB) | Preview |
Abstract
This thesis presents a study on the legal and moral foundations of copyright in the "Shari'a" (Islamic Law), with reference to various schools of "figh" (Islamic Jurisprudence). By following the methodological principles and proofs in the sources of Shari 'a, the study provides the main authoritative groundings for copyright. Examination of copyright in the Shari 'a was performed by collecting and investigating the available references and citations relating to the subject. The material was obtained from various Islamic sources and through the fiqh terminology. Accordingly, the concepts of "hagq" (right), "milkiyya" (ownership), "mal" (wealth) and "manfa'a" (utility) and their definitions made by the leading scholars, were examined in order to understand the precise standing of copyright in Shari 'a. The analyses of these essential definitions revealed that the key factor of these concepts is the approval of Shari`a. Under Shari`a, however, copyright may be considered as hagq whose classifications in fiqh can be applied to copyright. Copyright is manfa'a and mal and can be owned. This understanding can provide an enough room for copyright in Shari'a. This study investigated evidence of copyright starting from the original sources of Shari'a Qur'an and Sunna (the prophetic traditions and practices), and the subsidiary sources such as "Qiyas" (the analogy). The study argues for the legitimacy of copyright on the ground that it reflects principles of justice and honesty, respects right and property, and reduces injustice enrichment. There are some "ahädith " (Prophet's traditions) which may support the idea of copyright. The application of giyds showed some clear cases which can be applied to copyright. An investigation on the supplementary sources of Shari'a; "Maslaha" (the public interest) "'Urf' (custom) and "al-Qawä`id al-Fiqhiyya" (legal maxims) supports copyrights. Therefore, copyright has received support from separate and cooperative evidence. The religious approval of copyright can only be gained, if a given work meets necessary conditions of originality, legality and the public interest. The duration of copyright leaves some scope for differences of view as to whether copyright should be eternal or for specified limited periods, with a discrepancy in theoretical and practical reasoning but the view of perpetual copyright appears to be more evident according to Shari 'a. The range of arguments dealt with in the study ought to dispel any doubt about the acceptance of copyright in Islamic law. The introduction of copyright within Islamic law is an extension and a logical part of "ijtihad" (conscientious reasoning) of Shari 'a. Copyright may be governed by the principles of Shari `a inasmuch as it is strengthened. Finally, the research shows how Shari 'a is a responsive and evolving system and provides guidance to serious and complex issues such as copyright with its international burden and interest.
| Item Type: | Thesis (Doctoral) |
|---|---|
| Uncontrolled Keywords: | Shari's law, Islamic law, copyright |
| Subjects: | B Philosophy. Psychology. Religion > BP Islam. Bahaism. Theosophy, etc K Law > K Law (General) |
| Divisions: | Theses and Dissertations > Doctoral Theses |
| Depositing User: | EThOS Web Service |
| Date Deposited: | 30 Jul 2019 13:03 |
| Last Modified: | 27 Jul 2023 13:49 |
| URI: | https://repository.uwtsd.ac.uk/id/eprint/1053 |
Administrator Actions (login required)
 |
Edit Item - Repository Staff Only |