Foundations of Criminalization in Intellectual Property Law (book)
 | |
| Book Information | |
|---|---|
| Author | Behnam Akbari and Hamed Ansari Moghaddam |
| Style | Reportorial-Analytical |
| Language | Persian |
| Pages | 208 |
| Publication Information | |
| Publisher | Majd Publications |
- Abstract
Foundations of Criminalization in Intellectual Property Law is a study in the field of intellectual property written by Behnam Akbari and Hamed Ansari Moghaddam, which analyzes the theoretical and legal foundations of criminalization in the domain of intellectual creations. From the authors' perspective, intellectual property refers to the rights related to intellectual creations and innovations in scientific, industrial, technical, literary, and artistic fields, where a material element is absent. This book attempts to explain the necessary theoretical and jurisprudential underpinnings to justify and strengthen the criminal protection of the rights of creators of intellectual works within the Iranian legal system.
From the authors' viewpoint, intellectual creations are considered to have asset value (*maliyyah*) according to custom and rational people. The general religious principles regarding individual rights and respect for these rights also extend to copyrights, patents, etc., and thus these creations have financial value. They believe that the classification of rights into tangible property (*'ayn*) and debt (*dayn*) is no longer complete and should be divided into three categories: tangible, debt, and intangible.
The authors, citing jurisprudential rules such as the prohibition of "unjust consumption of wealth", the "no-harm rule", the "negation of hardship", and "respect for the property of others", defend the criminalization of intellectual property rights violations. In conclusion, the relationship between criminal protection and concepts such as security, justice, social interest, and sustainable development is examined.
Brief Introduction and Structure
The book *Foundations of Criminalization in Intellectual Property Law* was authored by Behnam Akbari and Hamed Ansari Moghaddam, both senior attorneys, and published by Majd Publications. The book was compiled with the aim of understanding the basis and nature of intellectual properties and the correct principles of criminalization in this field.
In the authors' belief, intellectual property has a widespread impact on the economy, politics, and culture of a society; therefore, there is a need for criminal protection of this type of property. They also state that the reason for writing their book is to organize the existing laws concerning intellectual creations to reduce their fragmentation (p. 11). The authors' method was first to collect jurisprudential theories and examine existing criminal laws to reveal legal gaps, and then, relying on theoretical jurisprudential and legal foundations, to explain the criminalization in intellectual property law (pp. 12-14).
Structure
The book is composed of three chapters. The first chapter is titled "Generalities in Concepts, Foundations, and History." This chapter first examines concepts such as intellectual property and its types, like literary and industrial property, and criminalization. It then explains the history of the issue of intellectual creations in ancient societies and Iranian law. Subsequently, the conditions for protecting a work and the foundations of intellectual property, such as the theories of personality, labor, reward, and utilitarianism, are examined (pp. 15-70). The second chapter is dedicated to the study of criminal protection systems for intellectual property in Iranian law and international documents, including the TRIPS Agreement, the Berne Convention, and domestic laws such as the Law for the Protection of Authors' Rights, the Software Law, etc. (pp. 71-103). The third chapter examines the nature of intellectual property rights from a jurisprudential and legal perspective, and the views of proponents and opponents of the legitimacy of this type of property are analyzed (pp. 105-193). Finally, the authors provide a conclusion and offer suggestions (pp. 195-197).
The Nature, Types, and Foundations of Intellectual Property
From the authors' perspective, intellectual property refers to the rights related to intellectual creations and innovations in scientific, industrial, technical, literary, and artistic fields (pp. 21-22). According to them, all definitions of intellectual property agree on one point: the non-material nature of the subject of intellectual property. Despite a long history of laws related to this type of property, the term "intellectual property" entered the world's legal literature in the 19th century (p. 22). To examine the history of intellectual property, the authors refer to several existing Iranian laws that have criminalized unauthorized adaptation, illegal sale of copyrighted works, and illegal printing of another's work (pp. 26-35). In their view, the conditions for protecting intellectual works are: the tangible form of the work, the originality of the work, the declaration of its specifications, and the registration of the work (pp. 35-38).
Types
The authors of the book consider intellectual property to be an intangible right that can be classified in various ways. From one perspective, it can be seen as the result of a person's activities, such as the right to key money, or as the result of intellectual creations, such as writing a book (p. 39). Based on this, they refer to several categories of intellectual property rights, including literary and artistic property, and industrial and commercial property, such as patent rights, trademarks, etc. (pp. 40-47).
From another perspective, they divide intellectual property rights into material and moral rights. From their point of view, the moral rights of intellectual properties consist of non-financial privileges intended to protect the creator's personality. The authors consider moral rights to be more important in literary and artistic properties than in industrial and commercial properties. The most important moral rights include the right to attribution and integrity of the work, the right of withdrawal, and the right of disclosure (pp. 47-54). The most important material rights of intellectual property include the right to publish the work, the right to translate the work, the right to present and perform the work, and the right to receive rewards and prizes associated with the work (pp. 54-61).
Foundations
The authors of the book refer to theories such as the personality theory, the labor theory, the reward theory, and the utilitarianism theory as the foundations of intellectual property, and then discuss the impact of these foundations on the protection of intellectual properties (pp. 66-70).
- Personality Theory: According to this theory, the subject of intellectual rights are mental products that are a manifestation of the human personality. What appears externally as an intellectual work is a part of the person, and intellectual effort is nothing but the extension of the human personality into the external world. Consequently, the basis of intellectual rights is personality (pp. 61-64).
- Labor Theory: This theory considers the basis of intellectual property rights to be the labor of the producer of these works and considers these works as their property and the result of their labor (pp. 64-66).
According to them, these foundations will be influential in initiating protection for the creator of an intellectual work and also on how the violation of intellectual property rights is criminalized (pp. 67-70).
Criminal Protection of Intellectual Property in Iranian Law and International Regulations
The authors of the book, by examining criminal laws in Iranian and international law regarding the protection of intellectual property, have studied several laws. International laws for the protection of intellectual property include the TRIPS Agreement, the Berne Convention, and the Phonograms Convention (pp. 71-77). Iranian laws for the protection of intellectual properties include: the Law for the Protection of the Rights of Authors, Composers, and Artists of 1348 SH, the Law on Translation and Reproduction of Books, Publications, and Sound Recordings of 1352 SH, the Law for the Protection of the Rights of Creators of Computer Software of 1379 SH, the Press Law of 1364 SH, and the Law on the Registration of Inventions, Industrial Designs, and Trademarks of 1386 SH (pp. 78-103).
In their analysis of the Iranian laws passed to protect intellectual works, the authors point out several shortcomings. These include the laws paying less attention to details and being more focused on generalities. Also, these laws are very fragmented and have not been systematically organized. Finally, the issue of preventing crimes against intellectual properties has received little attention (pp. 98-103).
The Nature of Intellectual Properties from a Jurisprudential and Legal Perspective
In the third chapter of the book, the authors seek to examine the reasons for criminalization in the field of intellectual property. For this reason, they examine the evidence of proponents and opponents among jurists regarding the property status of intellectual creations:
Proponents' Arguments
The authors divide the proponents of intellectual property into two groups: some who view the jurisprudential system as a whole and look at its needs and shortcomings from the outside, seeking to solve jurisprudential dilemmas like intellectual property based on theories such as the theory of *mintaqat al-faragh* (the zone of legislative vacuum); and another group who seek to prove intellectual property using the internal capacities of fiqh. The authors have organized the arguments of these two groups based on the following points:
- The acceptance of the asset value of intellectual creations by custom and the impermissibility of disposing of it without the owner's permission (pp. 108-109).
- The rationality of the asset value of intellectual creations and the lack of its rejection by the Lawgiver (pp. 109-110).
- The practice of the wise: All rational societies and legal systems in the world consider intellectual creations as the property of their creators (pp. 110-11).
- General texts concerning individual rights: According to this argument, the general texts in the sacred law regarding individual rights and respect for these rights also include copyright, patent rights, etc., and therefore these creations have financial value (p. 111).
The authors of the book also side with the proponents of intellectual properties and believe that the classification of rights into tangible property (*'ayn*) and debt (*dayn*) is no longer complete and should be divided into three categories: tangible, debt, and intangible (p. 120).
Opponents' Arguments
According to the authors' report, opponents of intellectual property rights among jurists are in the minority. They then quote the opponents' arguments and critique them.
- Opposition to appealing to the rule of dominion (*qa'idat al-taslit*): According to this argument, it is not permissible to deny people's dominion over their property (e.g., a purchased book) without a condition or contract, meaning the buyer can use the content of the book under their own name. However, Imam Khomeini, who held this view, in a response to a query, did not permit publication and reprinting without the author's consent and knowledge (pp. 112-113). The authors believe that, contrary to Imam Khomeini's view, the inclusion of the phrase "copyright and reproduction rights reserved" in printed books creates a right, and the buyer will not have the right to reprint the purchased book (pp. 113-114).
- Lack of validity for intellectual property: This means that intellectual property has not been endorsed and validated by the Lawgiver, and that the Lawgiver has endorsed the practice of the wise, which was the non-recognition of intellectual property. The authors believe that the condition of teaching Muslims in exchange for the freedom of prisoners in the Battle of Badr and the setting of teaching the Quran or poetry as a dowry are themselves evidence for the asset value of scholarly works. It is also possible that the reason for not mentioning the asset value and ownership of these creations during the time of the Lawgiver was the absence of a rationally intended benefit at that time and place, but today such a benefit is attached to intellectual creations. They believe that if the Lawgiver had endorsed it, He would have had to specify the limits, whereas nothing has reached us to indicate whether the ruling is permanent or temporary and to what extent of custom or customary concepts the endorsement applies (pp. 114-117).
- Incompatibility of intellectual property with the mission and sanctity of knowledge: Some Sunni scholars consider the validation of intellectual property to be a cause for the monopolization and restriction of scholarly works and the concealment of divine knowledge. The authors believe that, contrary to the statement of these scholars, the main goal of intellectual property is the promotion of knowledge, and earning income through scholarly work has nothing to do with concealing divine knowledge (pp. 117-118).
Proponents and Opponents of Intellectual Property Among Jurists
Among jurists, opponents of intellectual property have also relied on two arguments: first, that the subject of ownership is tangible objects (*a'yan*), i.e., material and external entities, not non-material and intangible matters. And the second reason is that the three main characteristics of ownership—absoluteness, permanence, and exclusivity—do not exist in intangible creations (pp. 120-122).
In contrast, a number of other jurists who support ownership in intellectual creations and intangible matters have responded to the opponents' arguments, believing that: the limitation of ownership to material things belongs to undeveloped legal systems where intangible rights had no value. Today, with intellectual works becoming valuable, they have both acquired economic value and been officially recognized, and the characteristics of ownership are no longer as they were in the past (pp. 122-125).
Jurisprudential Foundations for Criminalizing the Violation of Intellectual Property Rights
The authors of the book have resorted to several general jurisprudential rules to criminalize encroachment on intellectual property, including:
- Prohibition of unjust consumption of wealth: According to Quran 2:188, "unjust consumption of wealth" (*akl mal bi al-batil*) is forbidden. The authors, by explaining Imam Khomeini's view on the term "batil" applying to both religiously and customarily void acts, believe that the violation and misuse of intellectual property rights is criminal, and the consumption of income derived from it is unjust and forbidden. They consider the determination of the type and extent of punishment and discretionary punishment (*ta'zir*) for this criminal and forbidden act to be the responsibility of the Muslim ruler (pp. 125-131).
- The no-harm rule (*qa'idat la darar*): Some believe that not establishing a right for the creators of intellectual works would be detrimental to the creator and society, and the no-harm rule negates the non-establishment of this right so that the harm is not attributed to the lack of a valid ruling from the Lawgiver. The authors consider the appeal to the rule of dominion for the permissibility of any kind of disposition of purchased intellectual works like a book to be restricted by the no-harm rule, according to which any dominion that harms another will not be permissible (pp. 131-137).
- The rule of negating hardship (*qa'idat nafy 'usr wa haraj*): The lack of protection for intellectual property puts the producers of these works in hardship, and according to this rule, to negate the hardship of these producers, criminalization must be enacted in this regard, and appropriate criminal laws must be considered (pp. 137-138).
- The rules of respect and dominion (*qa'idat al-ihtiram wa al-taslit*): Based on these two rules, intellectual creations have asset value, and property is considered as respected as blood. Therefore, intellectual creations are respected, and encroachment on them is punishable, like encroachment on life.
- Permissibility of disposition of intellectual works by the owner: Intellectual creations are the property of their creators, and they can make any kind of disposition in them. Without their permission, disposition of their property is not permissible (pp. 138-143).
In addition to the aforementioned jurisprudential foundations that support the criminalization of acts violating intellectual property, the authors also refer to other legal and social foundations such as sustainable development (pp. 143-145). They also go on to examine the relationship between the necessity of criminal protection for intellectual works (criminalization) and social realities, including security, freedom, social values, expediency, justice, public opinion, and preventing disruption to the social order (pp. 145-193).