Critical editions, copyright, and fiqh

March 3, 2010

For many years now I’ve watched debates on sharia and copyright—and specifically copyright on works of `ilm al-din—go round and round with very little new progress made. This is, I suppose merely reflective of the same ground reality of near-universal disregard of copyright which shapes the general debate.

But what’s surprising is that some of what seems to draw the most ire from those in favor of protecting content creators’ investments is the habit—especially in the Arab world— of “unscrupulous” publishers reprinting the texts of critical editions prepared at great expense. We’ll ignore the fact that many critical editions are actually masters and doctoral theses. The simple, plain truth is that a critical edition of a public domain work (and it would be extremely rare to find a critical edition of a non-public domain work) is not a copyrightable work in itself. Frontmatter, footnotes and so on will be subject to copyright, but the text itself is merely a reproduction of something already free to all—no matter how much effort and cost was expended in preparing it. I suspect that even those footnotes which point out variations between manuscripts are also part of the public domain as they constitute facts, and one can not copyright a list of facts. Yes, a pdf of a scanned copy of a critical edition is probably a copyright violation, but printing a separate edition based on the text prepared by the editor should be perfectly legal. And unless the proponents of shar`i copyright—which in my opinion has no leg to stand on aside from local law—are willing to contend that the sharia’s protection of creator effort and intellectual property extends beyond what the relevant statutes and treaties require, it must be ceded that this action is entirely permissible.

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