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Jewish Law and Copyright
Rabbi Israel Schneider

Jewish Law and Copyright
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 suhject 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!"

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