By, Mohit Kar
Intellectual Property Rights (“IPR”) in the Middle East are based on the idea of Western influence on foreign laws, which have now been assimilated into the local laws.[i] It is an illustration of the West’s supremacy in International law which has an ulterior motive to remove cultural and religious aspects of local laws.[ii] However, the concept of legal transplants teaches us that the transfer of a legal theory from one jurisdiction into another is a process rather than a one-time event, and in the course of its adaptation, the law itself changes.[iii] As a consequence, Western world’s influence over International laws has hit a brick wall in the Middle East, where culture and religion form majority of the policies. IPR doesn’t find a specific mention in the Quran. However, with the advent of Sha’ria law in Islamic jurisprudence which finds its roots in the Quran, the Sunnah, Ijma, Qiyas; IPR has found a place and is offered protection as personal rights.
Role of Sha’ria
The quantum of protection provided by Western Intellectual Property (“IP”) laws is much wider if compared to the protection provided by Islamic Sha’ria. To bridge that gap, the Arab countries that adopt Sha’ria law have multilayered protection for the subject matter falling within IP which consists of Ottoman layer, Sha’ria law, French civil law influences and the increasing obligations under international law.[iv] Since Sha’ria is derived from the sayings and actions of the Prophet as well as Ijma & Qiyas, let us look at the various instances where Intellectual property finds its protection. Personal rights and right to property have a specific mention in the holy book. An individual can exercise these rights in various walks of life such as accumulation of wealth and and ownership in a fair manner. This can be substantiated by Prophet’s saying in Sahih al-Bukhari (Hadith No: 283), “Nobody has ever eaten a better meal than that which one has earned by working with one’s own hands”.[v] Intellectual property is widely viewed as kind of an intangible property, so as to understand the stance of Islam on IPR we need to take a look at the property rights. Quran at 2:188 states, “Do not knowingly devour a portion of the property of others wrongfully”. This verse dictates that one cannot make use of lawful property of another. The same can be applied to Intellectual Property wherein one cannot infringe upon the trademarks, copyrights or patent rights of a person that has been duly assigned.
Importance of IPR in Global Trade
Most of the Middle Eastern countries are members of the World Trade Organization (“WTO”) and are bound by the Trade-Related Aspects of Intellectual Property Rights agreement (“TRIPS”).[vi] TRIPS plays an important role in the formulation of IP laws in the Middle East. Western countries especially the United States (U.S) have taken proactive steps to ensure that the Middle Eastern countries amend their laws to be TRIPS compliant.[vii] This is done to promote their companies and businesses in the Middle East.
In developed countries, as dominating firms increase in scale, reliance is placed on outsourcing its business to expand further. Corporations seek to gain a foothold in nations that augment their innovation and manufacturing. IPR facilitates innovation by providing “exclusivity” to it and prevents counterfeiting. Thus, it is pertinent to take note of the actions taken by U.S in promoting TRIPS compliant IP laws in the Middle East.
U.S the Watchdog?
United States has strived hard to assist its companies who plan to shift their operations to Middle East. This has made U.S. act stringently in promulgation and enforcement of TRIPS compliant IP laws throughout the Middle East. For instance, U.S has held talks with Gulf States regarding intellectual property regulation and with intimidation from the U.S. and Europe, the Gulf Cooperation Council have come up with an elaborate intellectual property protection.[viii] U.S. also runs its Special 301 watch list that monitors countries which are seen as lackadaisical in implanting stringent IP policies.[ix] The implications of being placed on the list have been seen on the UAE and Jordan, who have been forced to strengthen their IP protection.[x] In addition to all the government actions undertaken by the U.S., trade associations based out of U.S. like the International Intellectual Property Alliance (“IIPA”) also tend to have a say in promulgation of Western backed IP laws in the Middle East. The IIPA has several member associations such as Association of American Publishers, Business Software Alliance, Entertainment Software Alliance, Independent Film & Television Alliance, Motion Picture Association of America, National Music Publisher’ Association, and Recording Industry Association of America. The IIPA works in close contact with the U.S Trade Representative, who cumulatively compile the ‘Annual Special 301 Reviews’ which contains the name of countries that the U.S. Trade Representative assess to have ineffective intellectual property protection. This encourages the countries in the Middle East to reduce appropriability. Additionally, the IIPA also alarms offending countries about an imminent prosecution before the WTO. This kind of pressure is specifically applicable on those Middle Eastern nations that are members of the WTO.
Feud of Cultures: The Road Ahead
The influence of West in Middle East is all pervasive. The Middle Easterners are increasing their consumption of Western products like McDonalds and Coca-Cola.[xi] Iranian malls are filled with outlets that are jam-packed with counterfeit Calvin Klein and Ralph Lauren clothing; electronics stores that replete with the latest in western gadgetry like iPhones.[xii] This is the scene in malls in Iran, where conservatism still holds sway. Modernism however is beginning to creep into social strata at least in the consumer sphere. As there is easy availability of western products, the Middle Easterners seem to have developed a craving for them.
As western firms begin to expand their business into the Middle East to exploit the ever-growing demand for western products, the IP protection for it is still lax. For instance marks and logos that convey messages and images which are in direct conflict with local laws and culture are not registrable. Given that IPR laws in the Middle East have evolved keeping in close contiguity with the Quran and traditional beliefs, western companies have been left with limited rights and it needs to change soon.
[i] Amir H. Khoury & Michael Birnhack, The Emergence and Development of Intellectual Property Law in the Middle East, Rochelle C Dreyfuss & Justine Pila (eds) The Oxford Handbook of Intellectual Property Law (2016); Lolwa Alfadhel, Shariah Law and Trademark Protection in the GCC Member State, Intellectual Property Rights: Development and Enforcement in the Arab States of the Gulf, Gerlach Press (2017); Michael Birnhack, Trading Copyright: Global Pressure on Local Culture, The Development Agenda: Global Intellectual Property and Developing Countries, Oxford University Press (2008).
[ii] Verzijl, J.H.W, Western European Influence on the Foundation of International Law, 1(4) David Davies Memorial Institute of International Studies Annual Memorial Lecture (1957).
[iii] Pierre Legrand, The Impossibility of ‘Legal Transplants’, 4(2) Maas. Jour. of Euro. and Comparative Law 111–124 (1997).
[iv] Dr. Abdullah F. Ansary, A Brief Overview of the Saudi Arabian Legal System, Hauser Global Law School Program, New York University School of Law (July, 2008), https://www.nyulawglobal.org/globalex/Saudi_Arabia.html
[v] Hadith No: 286, Sahih Bukhari: Chapter 34: Sales and Trade, https://ahadith.co.uk/chapter.php?cid=120&page=3&rows=10
[vi] Michael, supra note 1.
[viii] Silvia Colombo, Bridging the Gulf: EU-GCC Relations at a Crossroads, Edizioni Nuova Cultura (2014).
[ix] Ilias Shayerah & Ian F. Fergusson, Intellectual Property Rights and International Trade, Nova Publishers (2008).
[x] David Price & Alhanoof AlDebasi, The Development of Intellectual Property Regimes in the Arabian Gulf States: Infidels at the Gates (2009).
[xi] Jon Gambrell, From hot sauce to pop gloss, US products seep into Iran, Associated Press (July 11, 2019), https://apnews.com/ff85111196194009ac73f52d3e372d72