Jewish Law and Copyright
by Rabbi Israel Schneider
In our highly advanced technological age, the
duplication of original works of authorship has become almost effortless.
While at one time, manuscripts or books had to be copied laboriously by
hand, it is now possible within several minutes to produce high quality
reproductions of entire works. Similarly, audio tapes, videos, and computer
programs can all be reproduced quickly, effectively, and cheaply. The
purpose of this essay is to explore the halachic implications of making or using unauthorized duplications and to inquire if
there are precedents which could serve as grounds for the protection of an
author's or creator's proprietary rights.
Halachic literature is rich in detailing the rights -
and limitations - of an author to his original work. Not surprisingly, the
People of the Book were constantly involved in determining what type of
protection could be granted to an author or publisher.
With regard to what is termed "copyright," the
halachic material can be divided into two subjects. One category deals with
the rights of a printer who has issued a work in the public domain (e.g.
the Talmud, Ramban). The limited appeal of
seforim, coupled with the expensive outlays necessary for their printing,
contributed to the need for protectionist measures to permit a publisher to
recoup his investments. For this reason, rabbinical bans were issued
against competing printers who would print the same work. The scope of
these bans was the subject of ferocious debate. The time period (anywhere
from three to twenty-five years), subject (printer or purchaser), and
geographical extent of the ban (printer's country or worldwide) were issues
which were disputed and which generated significant halachic output. This
body of halachic literature does not deal, however, with the rights of an
author or creator to his original work. The aforementioned bans, or limited
monopolies, were aimed at protecting not the author's creativity, but the
economic viability of the publisher. We will briefly survey the responsa
literature which deals with these protectionist measures and present the
halachic antecedents which grant an author full legal rights in respect to
his creation.
Copyright Works In The Public
Domain
A cursory scan of seventeenth through nineteenth century
rabbinical haskamot (approbations), customarily printed in the
prefatory section of rabbinic works, will reveal that these approbations
served two distinct purposes. Firstly, the writer of the approbation would
put a "seal of approval" on the work by testifying to the
erudition and competence of the author. Secondly, the rabbinic authority
would declare a ban against publication, for a fixed period of time, of the
same work by another publisher. Rabbi Moshe Sofer1 (Chatam Sofer)
theorizes that the prevalence of this practice can be traced to a sixteenth
century incident which involved two publications of the Rambam's Mishneh Torah by two
competing publishers.
Rabbi Meir Katzenellenbogen of Padua (known by his
acronym, Maharam) published an edition of the Mishneh Torah in
1550-1551. Almost immediately, a rival non-Jewish publisher, Marcantonio
Justinian, printed another edition of the same work and priced it lower
(one gold coin less) than Rabbi Katzenellenbogen's edition. Rabbi Moshe Isserles (Ramo), in
addressing the issue, invoked the rule of Hasagat Ge'vul - legislation
which protects one's commercial rights from undue competition - in
declaring a ban upon anyone who purchased the Justinian edition of Mishneh
Torah.2 The ruling of Rabbi Isserles, argues Rabbi Sofer,
ushered in the era of rabbinic haskamot which embodied, by force of ban or
excommunication, protection for the rights of publishers of religious
works.
In substantiation of Rabbi Moshe Sofer's theory, it
should be noted that just three years after the Mishneh Torah controversy,
the Rabbinical Synod of Ferrara enacted a regulation that the first edition
of any book written by a Jew must receive the approbation of three rabbis.
It was Rabbi Meir Katzenellenbogen who headed the list of signatories.3 A close reading of the enactment indicates, however, that its primary
concern was not to protect the interests of the publishers, but rather to
prevent publication of books whose contents were deemed inappropriate.
Rabbi Batzri4 suggests that although unfair publishing
competition might have been the issue at stake, nevertheless no explicit
mention of that concern was made in order not to strain relationships
between the Jewish and non- Jewish communities.
Ironically enough, although the Chatam Sofer views Rabbi
Isserles' ban as the prototype of all future rabbinical bans, he himself
writes that the enactment of these bans is not out of concern for the
financial loss of the first publisher (as Rabbi Isserles suggested).
Rather, he writes,
If we were not to close the door in the face of other publishers [i.e.
prohibit competition], which fool would [undertake the publication of
Judaica and] risk a heavy financial loss [lit., a loss of several
thousands]? The publication [of Jewish works] will cease, G-d forbid, and
Torah [study] will be weakened. Therefore, for the benefit of the Jewish
people and for the sake of the exaltation of the Torah, our early sages
have enacted... 5
Hence, it was not concern for any individual printer's
financial balance sheet which prompted the bans, but rather a concern for
the facilitation of the perpetuation of Torah.
However, Rabbi Mordechai Benet6 takes issue
with the rabbinical bans, on both theoretical and technical grounds.
Conceptually, he argues that the interests of the Jewish nation and its
Torah will best be served by an open economic system without any outside,
albeit rabbinical, restraints. Free competition will ultimately yield an
economic environment which will be most favorable to the consumer (i.e.,
the student of sacred texts). Granting monopolies to publishers will only
serve to drive up the prices of these rabbinic works, thereby stifling
Torah-study.
In addition, he argues, the ban is invalid on two
technical grounds. A ban is legally binding only if it is pronounced
orally; a ban written in the prefatory section of a book is not considered
valid. Moreover, a ban is binding only for those within the area of
jurisdiction of those imposing the ban; a rabbi who declares a world-wide
ban on the purchase or sale of religious works has overstepped his bounds.
Consequently, such a ban is legally invalid.
Rabbi Moshe Sofer7 disputes both of Rabbi
Benet's claims. He opines that a written ban is enforceable, citing the
antiquity of usage of the cherem (ban) and arguing that it can be
"activated" upon all Jews - even those outside a particular
rabbi's sphere of influence.
In certain instances, when it is difficult to decide
between two conflicting opinions, the halachic authority is enjoined to
observe the actual practice of the Jewish nation. History seems to have
come down firmly on the side of Rabbi Sofer. Between 1499 and 1850, 3,662
haskamot were issued and appended to books and religious works!"
Halachic Grounds for Copyright
Of Original Works
Until now, we have dealt primarily with the concept of
the "protectionist" copyright - granted to a publisher to insure
him against staggering financial losses. We will now present four halachic
principles which are employed in providing copyright protection to the
creators of original works. Interestingly, rabbis may approach the issue
from radically differing perspectives and nevertheless arrive at similar
conclusions. Thus, although Rabbi Benet argues against the efficacy of
bans, he ultimately agrees with Ramo to ban the Justinian edition of Mishneh Torah, for he
reasons that Rabbi Katzenellenbogen's edition -- by dint of its explanatory
notes, corrections, and comments -- should be deemed to be original and
thereby worthy of copyright protection. An even more startling example of
this dichotomy is the inclusion of a ten-year printing ban in the
introduction (written by Rabbi Benet's granddaughter's husband, Rabbi
Avraham Yitzchak Glick) to Rabbi Benet's own work, Responsa Paras Itot
Mordechai.
The Rule Of Benefit And Loss
Rabbi Yechezkel Landau, in his magnum opus Nodah
B'Yehuda,9 approaches the copyright issue from the perspective
of the Talmudic passage, familiar to any Yeshiva student:
One who derives benefit and the other suffers loss [is
liable].10
The case addressed by Rabbi Landau involved a scholar
who authorized a Talmudic commentary and paid the publisher the stipulated
amount for printing his work (upon the margin of the page of Talmud). After
completion of the printing, the publisher discarded the characters used in
the printing of the commentary, but retained the typeset characters of the
Talmudic text for use in printing an edition of the Talmud. The scholar
claimed that by paying for the entire printing, he owned a share in the
letter arrangement of the Talmudic text and was therefore entitled to a
portion of the revenues realized by the sale of these volumes of Talmud.
The defendant claimed that the actual print characters belonged to him and,
as such, the plaintiff had no claim to any of the profits.
Rabbi Landau ruled that in cases where the author paid
for the typesetting, the author retains rights to any reprintings made from
those selfsame characters.
He [the printer] has caused a great loss [to the
author], for if the printer had not published these [second] books, there
would have been a great demand for Reuven's [the author's] work [which
included the Talmudic text].... Now, that Shimon [the printer] has printed
[his volumes], these volumes which are cheap and in great supply will
reduce the demand for Reuven's [the author's] work. Since the printer has
caused the author a financial loss, we obligate him to pay all that he
benefited from the author's share in the typeset arrangement.
Although the actual ruling of Rabbi Landau applies to
the reprinting of the Talmud, a work in the public domain, the ruling would
certainly apply to an original work of scholarship. If we guard the rights
of one who has merely paid for the arrangement of an original text, so much
more should the rights of a creator of an original work be protected.
Rabbi Zalman Nechemia Goldberg, in an essay published In Techumin,11 writes that the Nodah B'Yehudah's comparison
of this case to the Talmudic cases of benefit and loss is a subject of
disputi among the earlier commentators. As we shall see, Rabbi Goldberg's
point reflects the struggle of both halacha and civil law to deal with
intangibles as property susceptible of being owned. He argues that although
the rule of benefit and loss uneqivocally obligates one who has benefited
directly from someone else's property, it is not clear whether this law
extends to benefit from the intangibles (e.g. form, arrangement, and
composition) that are a product of one's labor and creativity. While the
particulars are beyond the scope of this article, Rabbi Goldberg concludes
that Rabbi Landau's ruling is consistent with the opinion of Rabbenu Tam,12 and in conflict with that of Rabbi Yitzchak.13
Hasagat Ge'vul
As noted earlier, Rabbi Moshe Sofer wrote many respona
concerning the issue of copyright.14 Most of the material,
however, deals with the exclusive rights granted to a printer in order to
make the printing of Jewish scholary works economically feasible. However,
Responsa Chatam Sofer, Choshen Mishpat, no.79, deals with a work of
original authorship, and provides another source for the concept of
ownership of incorporeal property.
The Chatam Sofer addressed the issue whether Rabbi Wolf
Heidenheim, editor of the nine-volume Roedelheim Siddur and Machzor, could prevent others from republishing his prayer books. After a lengthy
discussion of printer's rights in general, Rabbi Sofer writes:
If the case is so [that limited protection is granted]
for printers of other texts [already in the public domain], so much more so
for one who created a new entity... for example, the consummate scholar,
Rabbi Wolf Heidenheim, who spent countless hours in the editing and
translation of the Piyutim... and why should others profit from his
creativity? It [our case] can be compared to the case of the fisherman who
by means of his actions caused the gathering of the fish...
The analogy to the fisherman is particularly intriguing.
The Talmud15 cites a ruling: "Fishing nets must be kept
away from a fish [which has been targeted by another fisherman the full
length of the fish's swim."16
The commentators point out that the targeted fish, which
is yet uncaught, is common property (hefker). Nevertheless, other fishermen
must distance themselves from this fish and must stake out other
territories. Rabbi Meir, father of Rabbenu Tam, explains that the fisherman
who originally staked out the area baited the net with dead fish. This
action of the fisherman resulted in the clustering of other fish in the
vicinity of the net. For this reason, the other fishermen are enjoined to
steer clear of reaping the profits of their fellow fisherman's labors.17 Hence, a fisherman who placed his bait within the proscribed area is guilty
of poaching on the preserves of the first.
Rabbi Sofer draws a rather sweeping, far-reaching
principle, based on the "fisherman model." It can be formulated
as such: One who has expended effort in the attainment of a certain state
(apart and beyond the ownership of any tangible property) is legally
entitled to the ensuing profits. Hence, the author who has utilized
energies in the creation of work, is no less entitled to enjoy the fruits
of his labor than is the fisherman who has assiduously baited his traps.18
In conclusion, Rabbi Sofer finds the antecedent for the
protection of author's right under the rubric of "Hasagat Ge'vul"
- the legislation promulgated to prohibit the encroachment upon the
economic and commercial rights of others.
Dina De'Malchuta Dina
Beit Yitzchok19 approaches the issue from an
entirely different angle. Even if we are to assume, he writes, that Torah
law doesn't explicitly award exclusive proprietary rights to an author, it
nevertheless enjoins us to recognize and obey "the law of the
land."20 Consequently, all authorship rights rights
provided to an author under civil law are recognized by Torah law as valid
and binding. Writing in the late 19th century, Rabbi Yitzchok Schmelkes
states that our country21 prohibits the copying of original
works of authorship. One hundred years later, on these American shores, the
identical situation exists. Statutory protection of an author's work(s) is
guaranteed by the Copyright Act of 1976 (Pub. L. No. 94-533, 90 Stat.
2541). For this reason any infringement of civil copyright law would be, by
definition, an infringement upon Torah law as well.
In truth, the validity of this argument hinges upon a
dispute among the medieval commentators as to the scope of "Dina
De'Malchuta Dina" ("the law of the land is law"). Rabbi
Baruch ben Yitzchak22 cites the opinion of his teachers, in the
name of the French Tosafists, that "the law of the land" is
binding to the extent that it applies to the government's right to levy and
collect taxes. However, legislation enacted by the government for the
benefit of its citizens, without any direct profit for the government,
cannot be considered binding. Hence, copyright legislation, whose objective
is the protection of the public, is not included within the parameters of
Dina De'Malchuta Dina. The Ramban,23 however, disputes this point and rules that all just and fair legislation
enacted by the government falls under the category of "the law of the
land" and, consequently, is legally binding. The Shach,24 citing a host of codifiers who employ the principle of Dina De'Malchulta
Dina in regard to legislation which does not directly serve to profit the
government, rules that the halacha is in accordance with the Ramban.
A note of caution is certainly in order: the issue of
interaction between halacha and civil law is complex. Indeed, there are
times when the civil law, in conflict with the halacha, is not binding.25 However, it is Rabbi Schmelke's opinion and subsequently also that of Rabbi
Ezra Batzri,26 that copyright legislation, whose thrust is the
preservation of social justice and fairness, is recognized by Torah law as
binding.
Shiur
Rabbi Nechemia Zalman Goldberg advances a novel theory
to serve as the basis for the proprietary rights of an author,27 based upon the legal concept of "Shiur" (retention). It is
possible for a seller to sell an item to a purchaser, yet to retain certain
aspects of ownership for himself. For example, the Talmud28 speaks of one who sells an animal, yet retains for himself its shearings
and offspring. The purchaser is entitled to do with the animal whatever he
wishes. Nevertheless, the purchaser's ownership is limited. In regard to
shearings and offspring, the animal is considered as if it still belongs to
the seller.
Based on this principle, Rabbi Goldberg posits that one
who sells a cassette tape can stipulate that the purchaser is entitled to
all usages of the tape but one - the right to copy it. Since this right was
retained by the seller, the purchaser who copies the tape without the
consent of the seller has committed an act of theft, and, as such, is
obliged to make restitution to the owner of the reproduction rights of the
tape -- namely, the seller.29
Rabbi Goldberg writes, though, that this approach has
two major limitations. Firstly, this line of reasoning is valid only if it
is specifically stipulated that the sale is of a limited nature, with all
rights of copying retained by the seller. If, however, the seller merely
states that reproduction or copying of the work is prohibited, without
specifying that the scope of the sale is limited, it follows that one who
copies without consent is not guilty of theft and is not liable to make
restitution to the owner. Secondly, this approach protects only against the
primary reproduction of an original work. However, once a reproduction has
been made, the new copy certainly cannot be construed as belonging
partially to the seller. Consequently, one who copies a copy is certainly
not guilty of theft, and by the same token, not liable to make restitution.
Rabbi Goldberg does concede, however, that even in these two situations,
grounds for copyright protection may be found in the other principles which
have already been discussed.
Minor Alterations
Rabbi Joseph Shaul Nathanson was asked whether one who
reproduces an original work, but makes minor additions or deletions, is in
violation of the copyright legislation.30 He responded that the
argument to permit such a practice is "laughable," and
consequently, one who attempts to bypass the copyright restrictions by
making insignificant changes is still in violation of the halacha. To
permit the circumvention of the copyright laws by insignificant alterations
of the original material, he claims, would render these safeguards
ineffective and defeat the purpose of the enactment.
Photocopied Handouts
Rabbi Shmuel Wozner addresses the issue whether a
teacher is permitted to photostat one article or essay, out of an entire
publication, for classroom Ose.31 He rules that the copyright
restrictions would not apply in this case. Although Rabbi Nathanson's
extended definition of the copyright concept includes reproductions of an
entire work, with but minor changes, it does not include the copying of a
mere fraction of a publication. Consequently, a teacher who uses these
photostated handouts is not in infringement of the author's rights. He does
add, however, that the copies should not be circulated to the public but
rather used only within the classroom setting. Rabbi Wozner comments that
the teacher who uses photocopied material for classroom usage is not only
well within his legal rights, but, in addition, has performed a mitzvah by
sparing the students the additional expense of purchasing books
unnecessarily!
Sometimes it may happen that one Posek's
"Mitzvah" is another Posek's "Aveirah". Rabbi Yaakov
Blau questions Rabbi Wozner's conclusion and advances that opinion that
although a teacher would be permitted to copy an article for personal use,
it would be prohibited to copy an article for classroom distribution.32 In the opinion of this writer, this dispute might hinge upon the
aforementioned grounds for halachic protection of copyright. If the
halachic legitimacy of copyright is based upon the statutory protection
provided by civil law, it stands to reason that any exclusions which might
exist in the civil law provisions will, similarly, be recognized by halacha
as valid. Since the Copyright Act codifies the so-called "doctrine of
fair use" as a limitation on the rights of copyright holders, then
halacha too will award the public this benefit. If, however, there exists
an independent halachic interdiction against the pirating of literary
creation, then, it can be argued, this prohibition extends beyond the reach
of the civil law.
Conclusion
Based on the above, it is clear that sufficient halachic
grounds exist to protect an author's proprietary interest in his work.
Indeed, Rabbi Moshe Feinstein 33 rules unequivocally that one is prohibited to copy a Torah (cassette) tape
without the explicit consent of its creator. From the phrasing of the
responsum, it cannot be determined which line of reasoning was employed by
Rabbi Feinstein. He adds, however that one who illegally copies a tape has
committed a form of theft.
Obviously, this essay does not claim to be a
comprehensive study of all the ramifications of copyright law within the
context of halacha. Nevertheless, it may serve as a guideline to the many
questions which still require definitive rulings.
Footnotes:
-
Responsa Chatam Safer, Choenen Mishpat,
no. 41.
Rabbi Moshe Isserles, Responsa, no.
10
Encyclopedia Pachad Yitzchak Vol. 10.
p. 157b, Takanot She'nitkinu.
Techumin, Vol. 6 (5745), p. 179.
Responsa Chatam Sofer, Vol. 6, no.
57.
Responsa Parashat Mordechai, Choshen
Mishpat, nos. 7 and 8.
Responsa Chatam Sofer, Choshen Mishpat no. 79; Volume 6 no. 59.
Encyclopedia Judaica, Vol. 7 p. 1454.
While a great portion of these "haskamot" were written for
original works, nevertheless, many were issued for books already in the
public domain.
Nodah B'Yehuda, Volume 2, Choshen
Mishpat no. 24
Bava Kamma 20a
Techumin, Volume 6, (5745), pp.
195-197
Cited by Tosafot, Ketubot 98b.
Ibid.
Responaa Chatam Sofer, Choshen Mishpat no. 41; ibid no. 79; ibid no. 89; Volume 6, no. 57.
Bava Batra, 21b.
Defined there as one Parasang (appx.
2 1/2 miles).
Cited by Tosafot, Kiddushin, 59a.
It is interesting to note that Rabbi
Sofer's analogy was later employed by a twentieth century author.
"What happens to a poet when he poaches upon a novelist's
preserves...." (Virginin Wool[).
Responsa, Yoreh Deah, Volume 2, no.
75.
Mar Shmuel's principle, cited in Nedarim 28a.
The responsum was written in Przemysl, a
city in Galicia (Austrian Poland).
Sefer HaTerumot. 46:8.
Cited in Sefer HaTerumot, ibid.
Yoreh Deah, 165:8.
See Journal of Halacha and Contemporary
Society, Vol. 1 no. 1, pp. 122-125, for Rabbi Hershel Schachter's
treatment of the subject. In addition to the source material cited there,
see Shiurei Halacha Rabbi Yosef Yehuda Leib Block, p. 57. It seems
to this writer that copyright legislation meets the criterion developed by
Rabbi Block for the applicability of halachic legitimacy for "Dina
De'Malchuta Dina".
Techumin, Volume 6, (5745), pp.
181-182.
Ibid. pp. 185-207.
Bava Metziah, 34a.
See, however, Techumin, Volume 7,
(5746). pp. 360-380, for debate between Rabbi Nechemia Zalman Goldberg and
Rabbi Naftali Bar-han about validity of sale with seller's retention of
intagibles.
Responsa Shoel U'Meshiv, Mahadura Kamma, 1, no. 44.
Responsa Shevet Halevi, Volume 4,
no. 202.
Pitchei Choshen, "Laws of Theft
and Fraud," p. 287, note 27.
-
Responsa Iggerot Moshe, Orach Chayim, Vol. 4, no. 40 sec. 19.
Sources: Reprinted with permission from Jewish Law Articles; Original Source: Journal of Halacha and
Contemporary Society, Vol. XXI |