Islamic states during different historical eras and in different geographical locations have established institutions to supervise and promote the creation and dissemination of intellectual products. These institutions were called Maktabat (libraries); however, some commentators rightfully debate this label, as they were more than ‘store houses for books but seen as centres for learning and teaching’.55
What is unique about these institutions is that they demonstrate how Islamic states since the ninth century have recognised the intellectual creations of their residents not only morally but practically. Apart from providing a forum for learning, budgets
51 Ibid 33.
52 Hassan and Hilli, Islamic Technology (Cambridge University Press) par. 8-9. Cited in Azmi, Intellectual Property in Islam, above n 17, 132.
53 Fathi al-Dirini , Haq al-Ibtikar fi al-Fiqh al-Islami al-Muqāran (al-Risāla Foundation 1977) 55.
54 Ida Azmi, ‘Basis for the Recognition of Intellectual Property in Light of the Shari’ah’ (1996) International Review of Industrial Property (IIC) Vol 27, 650.
55 Roldah Adams, ‘Historical development of Islamic libraries internationally and in South Africa : a case study of the Islamic Library in Gatesville’ (2003) Cap Peninsula of Technology 6 available online at: <http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context=roldah_adams>.
59 were allocated through the Maktabat to compensate individuals for writing books and producing scientific inventions.56
However, the history of these institutions does not inform us that they provided comprehensive protection of intellectual products. Apart from a primitive protection of moral rights, the dissemination of knowledge through reproduction and duplication was widespread and even encouraged. This supports the conclusion that the early Islamic civilisation did not develop an indigenous counterpart of IP as we know it today.
The institutions which supervised creativity and authorship in Islamic civilisation include: Bayt al-Hikma (House of Wisdom) in Baghdad, Dār al-’ilm (House of Knowledge) in Cairo and the Library of Cordoba in Andalusia (Spain).57
3.3.2.1 Bayt al-Hikma (House of Wisdom)
Bayt al-Hikma was founded in Baghdad during the Abbasid Caliphate (750-1517 CE). It is believed to have been established under the rule of Caliph Abu Jafar al-Mansour (714-775 CE)58 and significantly expanded under the rule of Caliph al-Mamun B. Haroun al-Rashīd (813-833 CE).59 Bayt al-Hikma should not be confused with the Fatimid Dār al-’ilm (House of Knowledge) as both were founded in different historical eras and geographical areas as will be seen later.60
The main purpose for establishing Bayt al-Hikma was to promote scientific authorship and discoveries and to translate scientific books from other civilisations such as the Greek, Persian and Indian.61 Since the Caliph Al-mamun was a scientist himself, he gathered other scientists such as al-Khawarizmi, the founder of Algebra,
56 Hassan and Hilli, above n 52.
57 It is noteworthy that the Islamic civilisation contained other knowledge centres such as the Madrasa Mustansiriyya in Baghdad which was established in 1200s CE Madrasa
al-Mustansiriyya contained educational hospital and over 80,000 books and 248 researchers. Essam Abd Al-Ra’uf, Tarīkh al-Fikr al-Islami , above n 40, 186.
58 Said De Youji, Bayt al-Hikma, (Maktabat Kunuz al-ʿilm, 2006) 33.
59 Ibid, 35, see also Amira K. Bennison, The Great Caliphs: The Golden Age of the Abbasid Empire, (Yale University Press 2009) 179.
60 Halm Heinz, Fatimids and their Traditions of Learning, (I. B. Tauris and Company, Limited in Association with the Institute of Ismaili Studies 1997, 73.
61 Said De Youji, al-Hikma, above n 58, 35 and Essam Abd Al-Ra’uf, Tarīkh al-Fikr al-Islami , above n 40, 199.
60 and compensated them for their scientific achievements.62 Bayt al-Hikma contained approximately 200,000 books and was equipped with one of the two observatories in Baghdad dedicated to scientific research.63
Bayt al-Hikma was divided into different sections, firstly, qism al-takhlīd (the deposition section), where authors of that era were eager to deposit their books.64 Secondly, qism al-naskh (the reproduction section), which was tasked with making copies of the books deposited in qism al-takhlīd.65 Thirdly, qism al-tarjama (the translation section) which specialised in translating books from different languages into Arabic. It has been reported that the books of Plato, Aristotle, Hippocrates and Galen were first translated into Arabic in Bayt al-Hikma.66 Finally, qism al-ta’līf (the authorship section), in which authors would write books to be placed in Bayt al-Hikma in exchange for monetary compensation.67
The point of interest for this study is that, although authors had been compensated for the books and discoveries they produced, there is no indication that authors or inventors enjoyed exclusive rights over their intellectual creations. This is evident from the fact that books were translated and copied at large scale without reference to any right of the first authors’ to object to the reproduction of their works.
3.3.2.2 Dār al-’ilm (House of Knowledge) 1005 CE
68Dār al-’ilm was founded during the ruling period of the Fatimid69 Caliph al-Hakim-bi-Amre-Allah (996-1021 CE). Dār al-’ilm functioned to promote knowledge and creativity and was the largest knowledge centre in the world with 600,000 books on its shelves as well as various innovative devices.70 Dār al-’ilm is seen as an example of the level of advancement that Islamic civilisation had reached in that distant era compared with other civilisations.
62 Muhammed Hamdadeh, above n 73.
63 Essam Abd al-Ra’uf, Tarīkh al-Fikr al-Islami , above n 40, 195.
64 Abd al-Basit A. al-Alussi and Uthman A al-Muhammadi, ‘Min Rawaiʿ ' al-Hadāra al-Islamiyya:
Bayt al-Hikma Numūdhajan’ (2009) Journal of Deyalla, and Essam Abd Al-Ra’uf, Tarīkh al-Fikr al-Islami , above n 40 194.
65 Ibid.
66 Said De Youji, al-Hikma, above n 58, 20.
67 Abd al-Basit A. al-Alussi and Uthman A al-Muhammadi, above n 64.
68 Common Era.
69 The Fatimid Caliphate ruled various areas in Muslim world such Egypt, the Maghreb, Sudan, Sicily, the Levant, and Hejaz from 909 C.E to 1171 CE.
70 Said De Youji, al-Hikma , above n 58, 44.
61 Taqi al-Dīn al-Maqrizi 71 (1364-1442 CE) gives a detailed account of the establishment and functions of Dār al-’ilm . al-Maqrizi states:
On Saturday 10th of Jamadi al-Akhera 395 Hijri [equivalent to 23 March 1005 CE], the House of Knowledge was opened in Cairo. Jurists gathered there and the books were carried from the castles [of the Caliph]. People were allowed in and permitted to read and copy from the books. ... General public, linguistic and grammar scientists and physicians gathered and used ... the books of literature and sciences which were carried to Dār al-’ilm under direct orders from al-Hakim bi-Amr Allah.
People from all walks of life were allowed to enter ... he [the Caliph] allocated rizq (monetary compensation) for scientists working in the House … people were coming for different purposes: reading books, copying them or to get specialised knowledge ... the Caliph provided the house of knowledge with all necessary stationary such as ink, pencils and papers.72 (Emphasis added.)
Al-Maqrizi further narrates that the Caliph ordered the relevant officials to manage the budget of the house in a certain manner and allocated to each department of the house specified amount of money.73
What is interesting about the above quotation in terms of IP is that the Fatimids’
state recognised the right of scientists to receive monetary compensation for their intellectual creations, and allowed people to freely use them in a manner that resembles to a large extent the modern concept of Open Access to Knowledge.74 Additionally, mass reproduction of the books at Dār al-’ilm was allowed and no restrictions have been identified except those known in Islamic traditions on authorship at that time, namely, attribution and integrity.
Dār al-’ilm also promoted scientific inventions. It was there that the most accurate astronomical chart of the time was developed to calculate the exact length of the Muslim’s lunar year, with modern day accuracy. Al-Hasan B. al-Haitham, the author of the most pioneering optical inventions of that period, is also reported to have benefited from the resources of Dār al-’ilm. 75
71 Egyptian Historian.
72 Taqi al-Dīn al-Maqrizi, al-Mawaʿid wa al-Eʿtibar, 518. This book is out of copyright and the cited version available online at: <http://www.4shared.com/document/nrHXY1cC/__online.html>.
73 Ibid 518.
74 Anne Fitzgerald, Open Access Polices, Practice and Licensing (CRC SI, 2009), 3.
75 Halm Heinz, Fatimids and their Traditions of Learning, (I. B. Tauris and Company, Limited in Association with the Institute of Ismaili Studies, 1997) 76.
62
3.3.2.3 The Library of Cordoba
When Islamic civilisation expanded to Andalusia (now Spain), spreading and implementing knowledge was an essential part of the policy agenda of the Muslim rulers. Muslims brought with them pioneering knowledge in different fields such as engineering, agriculture and astronomy. 76 However, the most significant advancement in this regard was the establishment of the specialised and highly advanced research centre known as the Library of Cordoba.
The Library of Cordoba was established under the rule of caliph al-Hākam ibn Abdu al-Rahman (961–976 CE). As was the case with al-Mamun ibn Haroun al-Rasheed, the founder of Bayt al-Hikma, al-Hākam was a scientist himself with state budget that exceeded twelve million golden dinars. 77
The Library of Cordoba contained over 400,000 books in different languages such as Arabic, Latin, Persian and Indian. As is the case with Bayt al-Hikma, the Library of Cordoba was divided into different sections such as the reproduction, translation and authorship sections. Scientists across the religious spectrum worked in the Library and produced vast amounts of knowledge that has benefited humanity until today, in various fields such as medicine, philosophy, engineering, mathematics and astronomy.78
Although caliph al-Hākam had allocated budgets to purchase books from scientists in Andalusia and overseas,79 the large number of books in the Library did not come only from purchasing. The free flow of knowledge and the absence of the desire to control reproduction and translation rights had significant impact on the richness of scientific content the Library of Cordoba enjoyed.