Jewish Business Ethics: 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 halakhah 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
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 halakhah is in accordance with the Ramban.
A note of caution is certainly in order: the issue of interaction between halakhah and civil law is complex. Indeed, there are times when the civil law, in conflict with the halakhah, 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.
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.
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 halakhah. 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.
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 halakhah as valid. Since the Copyright Act codifies the so-called "doctrine of fair use" as a limitation on the rights of copyright holders, then halakhah 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.
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 halakhah. Nevertheless, it may serve as a guideline to the many questions which still require definitive rulings.
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
Techumin, Volume 6, (5745), pp. 195-197
Cited by Tosafot, Ketubot 98b.
Responaa Chatam Sofer, Choshen Mishpat no. 41; ibid no. 79; ibid no. 89; Volume 6, no. 57.
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).
Cited in Sefer HaTerumot, ibid.
See Journal of halakhah 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.
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 halakhah and Contemporary Society, Vol. XXI