Divergent Methodological Approaches to Intellectual Property in Mixed Jurisdiction Countries

Abstract

For more than three decades, researchers examining intellectual property (IP) from Shari’ah perspectives adopted a variety of methodologies to determine the legitimacy of intellectual property rights, its subject matter, beneficiaries, and the scope of the exclusive rights. At times, more than one methodology is adopted to give a broader perspective of the enquiry. The adoption of a multiplicity of tools is not surprising as traditional fiqh scholars often relied on a variety of tools to extract reasoning from the primary sources of the Shari’ah, i.e. Quran and Sunnah. These research methodologies range from the traditional fiqhi approach developed since early days of Muslim scholarship. In recent times, Muslim scholars have moved to more contemporary approaches, for example maqasid (higher objectives of the Shari’ah) or developmental approach to examining the perimeters of intellectual property right, particularly when strong private rights may impinge public interest. This chapter examines the divergent methodological approaches adopted by these researchers and questions whether these approaches can be adopted to examine beyond the legitimacy in these scope of intellectual property rights.