European Journal of Law Reform

Article

Protection of Intellectual Property Rights Under Islamic Law

From Tort to Special Privileges

Keywords intellectual property rights, basic property rights, intellectual property privileges, monopoly rights, prohibition of harm
Authors Mahmood Bagheri, Mojtaba Nayyer en Mahdi Moalla
Author's information

227533 Mahmood Bagheri
Mahmood Bagheri is Associate Professor of Law at the Faculty of Law and Political Science, University of Tehran, and Senior Research Fellow at the Institute of Advanced Legal Studies, University of London

227535 Mojtaba Nayyer
Mojtaba Nayyer is LLM in Intellectual Property Law at the Faculty of Law and Political Science, University of Tehran

227537 Mahdi Moalla
Mahdi Moalla is PhD Candidate in Private Law at the Research Institute for Islamic Culture and Thought, Qom, Iran.
  • Abstract

      Knowledge and innovation, which are the basis of intellectual property rights, are public goods leading to some kind of market failure in terms of positive externalities. Such a market failure undermines the motivation for production of knowledge and innovation, which in turn would be a social loss and distributive injustice. Therefore, there has to be a response beyond the mere respect for basic property rights under Islamic law according to the Rule of Prohibition of Harm to others. The general application of such a rule and within the private law paradigm confers merely normal protection to intellectual property rights, like any other property rights, which is too little too late. However, affording the extra protection and special privileges to the owner of such rights as a mechanism to compensate the market and private law failure requires a different interpretation of this rule. This article suggests that ownership rights in knowledge and innovation could benefit from this rule at two levels: a general level of basic rights and a special level of privileges based on a social trade-off and distributive justice to avert a social loss. As such, Islamic law is capable of offering such special privileges to the owner of intellectual property rights who is willing to make a deal with society for improved but limited property rights.

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