Mudharabah Muqayyadah and Communal Intellectual Property Protection: A Sharia-Based Law and Economics Perspective

Abstrak

Communal intellectual property (IP), encompassing traditional knowledge, cultural expressions, and geographically rooted innovations, plays a significant role in community-based economic development. However, existing IP governance and financing frameworks remain largely individualistic and market-oriented, making them inadequate for addressing the collective, culturally embedded, and long-term nature of communal intellectual assets. This article examines the potential of mudharabah muqayyadah (restricted profit-sharing) as a Sharia-based legal-economic model for financing and governing communal intellectual property in Indonesia. This study integrates doctrinal legal analysis, qualitative field data, and law and economics perspectives to explore the interaction among state IP law, community institutions, and Islamic finance principles. The findings reveal that local communities function as the primary creators, custodians, and governors of communal IP, yet remain structurally excluded from formal IP protection due to limited legal standing and institutional capacity. The study demonstrates that legally recognized community institutions are essential for translating social authority into enforceable legal rights and sustainable economic value. Furthermore, mudharabah muqayyadah operates not merely as a financing contract but as a governance mechanism that aligns economic incentives with collective ownership, distributive justice, and cultural preservation. By restricting the use of capital to specific purposes, this model reduces transaction costs, mitigates moral hazard, and enhances long-term sustainability. This article contributes to socio-legal and intellectual property scholarship by reframing communal IP financing as a governance challenge rather than a purely commercial endeavor. From a policy perspective, it offers an alternative, ethically grounded framework for inclusive and sustainable IP governance in developing and Muslim-majority jurisdictions