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 reproduction 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 (i.e. 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 debates. 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.
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:
Ay lo nisgor hadelet be'ad madpisim acherim im ken mi peti yichnos atzmo be'saffek hefsed kama alafim vetitbatel melechet had'fus chas ve'chalila ve'tafug Torah al ken le'takanat kol Yisrael u'leharim keren hatorah hinhigu kadmoneinu...
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!8
Ze nehene ve'ze chaser
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.
Kan mechasro harbe she'harei im lo haya Shimon madpis sfarim halalu hevu sh'chichei ve'kaftzi zabinei al sfarav shel Reuven... ve'achshav shemadpis Shimon yihyu sdarim halalu sh'chichei u'bezol velo yimatzu kol kach be'revach konim sheyiknu meReuven ve'keivan shegorem hefsed le'Reuven baze megalgelin alav kol ma shenehene kefi chelko misidur ha'otiyot.
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 dispute 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 unequivocally 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
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:
Ve'im ken besh'erei madpisim, kol she'ken bemi shehotzi davar chadash... u'kegon hachacham hashalem moreinu harav Volf Heidenhiemer sheyichye, kila kama z'manim behagahat hapiyutim u'letargemam bil'shon Ashkenaz... velama yehene ba'me shehotzi hu vh"l ke'tzad dagim... she'hu hatzayad garam kibutz hadagim...
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 translating 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: Marchikim metzudat hadag min hadag kimlo ritzat hadag. "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 fishermen 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.
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'Malchuta 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.
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 obligated 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.
Sometimes it may happen that one Posek's "Mitzvah" is another Posek's "Aveira". 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.
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.
1. Responsa Chatam Sofer, Choshen Mishpat no. 41
2. Rabbi Moshe Isserles, Responsa, no. 10.
3. Encyclopedia Pachad Yitzchak Vol. 10. P. 157b, Takanot She'nitkinu.
4. Techumin, Vol. 6 (5745), p. 179.
5. Responsa Chatam Sofer, Vol.6, no.57.
6. Responsa Parashat Mordechai, Choshen Mishpat, nos. 7 and 8.
7. Responsa Chatam Sofer, Choshen Mishpat no. 79; Volume 6 no. 59.
8. 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.
9. Nodah B'Yehudah Volume 2, Choshen Mishpat no. 24.
10. Bava Kama 20a.
11. Techumin, Volume 6, (5745), pp. 195-197.
12. Cited by Tosafot, Ketubot 98b.
14. Responsa Chatam Sofer, Choshen Mishpat no. 41; ibid no. 70; ibid no. 89; Volume 6, no. 57.
15. Bava Batra 21b.
16. Defined there as one Parasang (appx. 2 1/2 miles).
17. Cited by Tosafot, Kiddushin, 59a.
18. It is interesting to note that Rabbi Sofer's analogy was later employed by twentieth century author. "What happens to a poet when he poaches upon a novelist's preserves..." (Virginia Woolf).
19. Responsa, Yoreh Deah, Volume 2, no. 75.
20. Mar Shmuel's principle, cited in Nedarim 28a.
21. The responsum was written in Przemysl, a city in Galicia (Austrian Poland).
22. Sefer HaTerumot. 46:8.
23. Cited in Sefer HaTerumot, ibid.
24. Yoreh Deah, 165:8.
25. 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".
26. Techumin, Volume 6, (5745), pp. 181-182.
27. Ibid. pp. 185-207.
28. Bava Metiziah 34a.
29. See, however, Techumin, Volume 7, (5746), pp. 360-380, for debate between Rabbi Nechemia Zalman Goldberg and Rabbi Naftali Bar-Ilan about validity of sale with seller's retention of intangibles.
30. Responsa Shoel U'Meshiv, Mahadura Kama, 1, no. 44.
31. Responsa Shevet Halevi, Volume 4, no. 202.
32. Pitchei Choshen, "laws of Theft and Fraud," p. 287, note 27.
33. Responsa Iggerot Moshe, Orach Chayim, Vol. 4, no. 40 sec.19.