Since the pre-Islamic period, known as Jahiliyya,28 original authorship in literary works, specifically, poetry has been highly regarded.29 At that time, the emergence of a professional poet in a tribe was a matter of supreme importance. The words of the poet were considered to be the most effective weapon30 in defending the tribe against other tribes because a poem plays a role as a repository for recording the major events in a tribe.31
With the advent of Islam, poetry remained a matter of great social importance.
Consequently, the Qur’an addressed it in a separate sura (chapter) titled ‘the Poets’32 in recognition of its influence on various social affairs. In this sura the Qur’an classifies the types of poetry which are compliant with its teachings and those which are not.33
If a poet creates a poem, their work is transmitted to the public by recitation. Each time the poem is recited, the person reciting it must include the full name of the poet, and by putting his or her name over the poem a poet could claim ownership of it.34 With the expansion of the Islamic states beyond the Arabian Peninsula to other cultural centres such as, Damascus, Baghdad, Cairo, Qayrawan, Fez and Cordoba,
28 Jahiliyya means ignorance and it refers to the condition in which the Arabs lived prior to the revelation of the Qur’an.
29 Basic forms of trademarks of intellectual property were recognised in the pre-Islamic and post Islamic period; however such forms have not gone through sustainable development as the case with original authorship. Amir Khory, ‘Ancient and Islamic Sources of Intellectual Property Protection in the Middle East: A Focus on Trademarks’ (2003) 43 IDEA: The Journal of Law and Technology, 155, and Azmi, observed that trademarks have not been addressed in Islamic Law Ida Azmi, above n 17.
30 Allen, Roger, Introduction to Arabic Literature (Cambridge University Press 2000) 65.
The Arabs describe their poetry as (diwan al-arab), namely; repository of Arabs.
31 Ibid 109.
32 Qur’an: 26.
33 Patrick S. O’Donnell, ‘Poetry and Islam: An Introduction’ (March 2011) CrossCurrents, Volume 61, Issue 1, pages 72–87, 73.
34 Khory above Ch1 n 12,155.
56 the importance of poetry increased.35 Fine poets were guaranteed a place in the courts of Caliphs and other rulers of Islamic regions and were granted monetary consideration for the poetry they produced.36
Due to the high status enjoyed by poets, some less creative individuals tried to ‘cash in’ by forging or plagiarising others’ poems. These practices were strictly monitored and harshly condemned,37 and were punishable by banishing the wrongdoer from the community (among the most severe of punishments).38 Ibn Salam (d. 846 CE), in his highly acclaimed treaty Tabakat Fuhūl Ashu’ara (Classifications of Prominent Poets), referred to claims and counter-claims of poem thefts from the pre-Islamic period till his death.39
In 950 CE, the first factory to produce papers was established in Baghdad, the capital of Abbasid Caliphate40 After that, paper production flourished with the establishment of factories in other cities within the Islamic states such as Cairo, Granada, Toledo and Cordoba.41 The increase in paper production significantly contributed to raising the levels of authorship and book production.42 Authors were regularly paid for their intellectual production. An independent profession known as warraq (book seller/publisher) existed in various cities in the Islamic states which bought books from authors and resold them to the public.43 Muslim rulers bought books from authors at excessively high prices in some cases. For instance, the ruler of Andalusia, al-Hakam al-Mustansir (d. 976 CE) paid 1,000 golden dinars to purchase the book of Abu al-Faraj al-Issfahani known as al-Aghani (book of songs).44 Nonetheless, copying and translating had been common practice and no restrictions were imposed
35 Patrick S. O’Donnell, above n 186, 73.
36 Khory above Ch 1 n 12, 155.
37 Silvia Beltramitti, ‘The Legality of Intellectual Property Rights Under Islamic Law’, (2009) Prague Yearbook of Comparative Law 56.
38 Khory, above Ch 1 n 12, 155.
39 Ibn Salam al-Jamahi, Tabakat Fuhūl Ashu’ara (Umm Al-Qura University) avialble online at:
<http://uqu.edu.sa/files2/tiny_mce/plugins/filemanager/files/4230119/000765-www.al-mostafa.com.pdf
40 Essam Abd al-Ra’uf, Tarīkh al-Fikr al-Islami (Dār al-Fikr al-Arabi,1997)189.
41 Hamed Deyab, al-Kutub wa al-Maktabat fi al-Andalus (Dār Qeba, 1998) 31.
42 Ibid.
43 Essam Abd Ra’uf, Tarīkh Fikr Islami, above n 40, 189; Hamed Deyab, Kutub wa al-Maktabat fi al-Andalus, above n 41, 60, 67, 70 and 102.
44 Ibid 65-70 the author reports that warraqun (book sellers) used to reproduce extra copies of the books they buy and resell them to the public.
57 on them,45 apart from certain restrictions related to ensuring the attribution and integrity of the original texts. In this context, one commentator reports that a warraq was able to copy and resell the books he had bought from the authors provided that the attribution and integrity of the original texts were observed.46
Special emphasis was placed on attribution and the integrity of intellectual production, known today as the authors’ moral rights. Two examples can be invoked to support this claim. The first is the concept of isnad (chain of narrators), which had been developed to authenticate the attribution of the Prophet’s Hadīths. Ibn Khaldun (d. 1406 CE) narrates that it was a common practice in the movement of authorship in Islamic civilisation that authors identify previous authors and narrators from which they have obtained the content of their books.47 Secondly, warraqun (book sellers/publishers) were not able to communicate the books to the public before obtaining Ijāza (approval) from the author that confirms the integrity of the text.
Books usually began with a phrase which indicates that the content of the book was heard from the author (samaʿun ʿan) and copied by a specialised person known as nasikh (copier).48 The concept of Ijāza resembles the right to publish granted to authors in civil law jurisdictions.
Abd al-Raman al-Suyuti (d.1505 CE) provides a key example that demonstrates the importance of preserving the authors’ moral rights. He authored an entire book that dealt with the infringement of moral rights.49 His book al-Fariq bayn al-Musannif wa al-Sariq or ‘the difference between the original author and the infringer’ gives a detailed account of the importance of honesty in recognising original authorship, by giving examples from various works of Islamic Jurisprudence that show how eager jurists were to attribute the opinions they cite in their own books to the proper person.50 He further speaks of personal experience where two of his books were copied by a third party without acknowledging his rights over them. Sayouti used
45 Taha Baqqir, Mujaz fi Tarikh Ulum wa Ma’ ārif (Dār Dawliyya li Istithmarat al-Thaqafiyya, 2002) 168.
46 Hamed Deyab, al-Kutub wa al-Maktabat fi al-Andalus above n 41, 65.
47Ibn Khaldun, al-Muqaddimah, (Bayt al-Ulūm wa al-Funūn wa al-Adab, 2005) Vol 2, 322, for more see Hamed Deyab, al-Kutub wa al-Maktabat fi al-Andalus above n 41, 73.
48 Ibid 64-65.
49 Abd Alrahman al-Suyuti, al-Fariq bina al-Musanif wa al-Sariq (ʿ alim al-Kutub, 1998).
50 Ibid 40.
58 various expressions of condemnation to illustrate his dissatisfaction about the alleged theft.51
In this context Hassan and Hilli observe that:
The condemnation of... copying is consistent with the principles on creativity and originality. Creativity and Originality have been highly regarded in the Islamic historical academia and scholarship. Crafts, textiles, pottery, and bookbinding: all were normally signed with the author’s name, dated and inscribed with the place of
manufacture to indicate origin and authorship 52
Furthermore, Professor Fathi al-Dirini observes that Imam al-Qarafi (1260 CE) was amongst the first jurists to discuss the possibility of transferring an intellectual product through inheritance. Imam al-Qarafi discussed in very broad terms the possibility of considering valuable assets related to the intellect of the deceased as mal (property) and thus transferable to his or her heirs.53 Although he concluded that such assets are not transferable, it remains significant that he studied the issue of intellectual assets in the 13th century, and recognised that an individual could have personal rights over her or his ideas.54