Sales of Intellectual Property Rights According to Islamic Law: Development Process and Permission

Abstract

The concept of rights has emerged with the existence of humanity and has been present throughout history. Legal scholars of each era have used this concept according to their own legal norms. It is also one of the fundamental concepts in legal literature. In ancient times, obtaining knowledge was difficult and limited. Therefore, materials containing knowledge held special importance. The concept of "intellectual property" did not have a legal basis as a property right and subject of sale in the First and Middle Ages. However, after the invention of the printing press, intellectual property became an issue as a right belonging to the owner of knowledge. Intellectual property rights, primarily copyright and industrial property rights, started to develop a legal framework and became established since the invention of the printing press. Technological advancements led people to new inventions and discoveries. As a result, there was a need for legal regulations concerning the transfer of intellectual property rights to others. Consequently, these rights gained economic significance and became an integral part of life. Intellectual property rights result from combining mental effort and labor to create a product. The owner of the mental product is granted certain rights. One of these rights is the ability to transfer the mental product to someone else, whether for a fee or free of charge. In this context, the Ottoman Empire and other Islamic countries did not remain indifferent to the issue. Especially with the arrival of the printing press in the Ottoman Empire, the protection of intellectual property rights became an agenda item. Islamic jurists reinterpreted these rights by deriving them from Islamic legal norms. The first legal regulation in the Ottoman Empire regarding intellectual property rights is the Copyright Regulation of 1857. The fundamental basis of these efforts is the inclusion of rights and interests in sales transactions. When looking at the main conclusion of the study, the views of the majority and Hanafi scholars stand out regarding the sale of these rights. In conclusion, the majority views rights and interests as property. According to them, the sale of intellectual property rights is permissible. However, early Hanafi scholars did not find the sale of rights and interests permissible. Nevertheless, later Hanafi scholars allowed the transfer of these rights to another party in exchange for compensation. Contemporary Islamic jurists evaluated the sale of intellectual property rights by focusing on the usage of rights and interests in jurisprudential literature. Ultimately, the majority of Islamic scholars consider the sale of intellectual property rights permissible. The lack of an independent study on the subject motivated us to conduct research on this topic. Our study is primarily based on written sources. The study discusses the possibility of selling intellectual property rights according to Islamic law. Especially when these rights are considered in the context of transferable rights (those that change location when transferred to another), their sale is permissible. This is because the view of all scholars from different schools of thought is that the transfer of transferable rights for compensation is permissible. * This study was prepared on the basis of master’s thesis which title “Sale of Intellectual Property Rights According to Islamic Law” which has continued undur the supervion of assoc Dr. Orazsahet ORAZOV (Zonguldak: Bülent Ecevit University, Graduate Education Institute, master’s thesis, 2023).