Copyright in Jewish Law – a book review

The Hebrew title of the book is titled creator’s rights (or privileges) in Jewish Law, using the term Zechuyot haYotzer. The English version renders the term as copyright. Although the book focuses on copyright issues, it does also relate, albeit briefly, to patents, trademarks and to the moral right of an author to be recognized as such. All these are referred to as copyright. This is somewhat confusing as they are different types of intellectual property that serve different purposes, protect different types of subject matter and for different time periods. Thus the term intellectual property right or IPR would perhaps be a more useful term.

The book raises more questions than answers. In the forward the book defines copyright as the restriction against duplicating an idea or an object. It is however axiomatic to secular copyright law that ideas per se are not protectable, but rather they need to be fixed in some manner, and objects are usually protected by design rights or patents.

The introduction and overview explain that the majority of Rabbinic authorities consider ownership over intangibles as being of Biblical origin. However no reference to chapter and verse is made. There are other authorities, termed the minority view, that base the prohibition on copying on secular law, custom of upstanding citizens or encroaching (confusingly referred to in the text as infringing) the livelihood of others. By understanding the majority view as natural law or inherent rights and the minority view as utilitarian law designed to promote progress, the so-called majority position is not far from that of civil law systems such as those of France and Germany, and the minority position is similar to the common law approach of the Britain and the USA.

There are a number of factual errors regarding civil law. Copyright does not require a formal act of registration, and there is no need to label material as copyright, but the book seems unaware of these facts. The current volume, despite being published this year, is out of date. The period of copyright for printed material is stated as being life + 50 years (se e.g. 1:59, quoting the Encyclopedia Britannica) whereas it is generally, for example, life + 70 years in Europe, the US and numerous other jurisdictions. Civil Law provides for copyright material to enter the public domain after a set period. The book takes the position that in halacha, a work never enters the public domain. From the acknowledgements, it seems that the book was apparently translated by one couple and edited by a third person. It is thus not clear whether the author, the translator or the editor is responsible for choices of words in the English book.

The flyleaf from the publisher implies that this work is the first systematic treatise on the subject. There are, however, a number of works published over the past couple of decades, in Hebrew or English, that cover Intellectual Property in Jewish Law, whether from the perspective of Mishpat Ivri, i.e. an attempt to distill principles of Jewish Civil Law from the Rabbinic literature for use by the Israel Courts, or that of Halacha, i.e. practical guidance for observant Jewish believers.

The first chapter relates to publisher’s rights and this section is about ten times as long as the section on author’s rights. It seems that the halachic responsa from the early period of printing were mostly concerned with guaranteeing a return on investment, making classical works available and advancing knowledge than in compensating authors for their toils. Also, the earlier sources generally don’t provide commercial rights for authors in Torah related works.

The book does find moral rights of authors to be cited in classical Jewish sources, such as the Ethics of the Fathers, and ideas should be attributed.

Many copyright laws have some fair use exceptions. These are notably broad in the US and in the Israel Copyright Law 2007, I would have been grateful for a comprehensive detailed treatment of a halachic position on this.

Despite the book having been published in 2010, the author seems unaware of the new Israel Copyright Law legislated in 2007 and the American Digital Millennium Copyright Act. We suspect that most potential readers are based in Israel or the US, and these provide a more practical guide to what is and is not allowed in various jurisdictions.

A 1996 law under which the State of Israel was to apply a tax to blank cassettes to compensate creators of material copied onto those cassettes is referred to a number of times as the basis for allowing Israeli songs to be copied for private use. However, this law was never implemented and the subsequent TRIPS agreement of the WTO, which was accepted in Israel, stipulates a basic level of copyright protection for films and songs and supersedes it. Finally, cassettes are no longer in use, having been replaced by optical and flash memory technologies, so the discussion is largely irrelevant.

The term majority and minority opinion are used throughout, regardless of who the minority opinion is. Thus, widely respected, significant halachic authorities such as Rabbi S.Z. Auerbach, are related to in the same manner as the author of a recent work, “Not All Rights Are Reserved”, whose position on some practical aspect of copyright are analogous, in my opinion, to ritual immersion whilst holding a dead rat.

There are some statements in parentheses that are not attributed to other authorities. I am not sure if they reflect the musings of the author or the translator/editor/publisher. Some of these are clearly wrong. A glaring example is the case of international copyright treaties, where according to the author, an infringing act simultaneously infringes the law in each country that is signatory to a treaty. This is not how international copyright treaties work, which simply address enforcing rights in one jurisdiction for material created elsewhere.

It will be noted that copying some creations may, of course, infringe the rights of more than one creator in more than one jurisdiction. Although according to the author, there is no copyright in translations, in simple photographs or in type-setting, this is not, in fact, the case.

Paragraph 5:3, found in the chapter on copyright states:

The classification of a “new invention” is conferred by experts in the field who verify whether the item is, in fact, original.

The statement is not referenced so seems to be a novella of the author. Whilst correct, is nevertheless misleading and problematic. If the term new invention refers to patentable inventions, it implies that the criterion of examination is novelty. Modern patent protection requires non-obviousness or an inventive step, not merely originality. It is also available for methods and processes not just for items. If by “new invention”, the author intends “registered design protection”, the statement is more accurate, at least as far as Israel and the US are concerned, where designs are examined. In Europe, for example, such designs may simply be registered, and there is also non-registered design protection. The originality is only an issue on litigation and then there is no need for an expert, a judge will make the determination of whether the design registration should have issued, i.e. whether the design is indeed an original creation. The statement appears in a chapter entitled copyright that relates largely to copyright issues. Copyright is not examined unless litigated. Copyright is generally not available for items other than works of art such as sculptures. The original contribution required for copyright protection is very low, and there is no classification of copyright material.

Amongst other material, Chapter 11 relates to trademarks and rules that infringement is forbidden because of Civil law. The unfortunately common problem of philanthropic organizations using confusingly similar names is addressed. Another point of interest that is covered is a ruling that the heir of a Chassidic dynasty does not automatically inherit the name of the group even if the original members now follow him. However the development in Bobov where one faction has filed a series of trademarks for Bobov, Admor from Bobov, etc. in both the USPTO and in the Israel Patent Office is not discussed.

At the beginning of Chapter 12, entitled “Imitating Creativity” there is the following paragraph:

 Important Note A distinction is made between copying an innovative idea or creation, and copying a style of workmanship; a patent is given for an original idea, whilst a style, which is a unique shaping or enhancement of a product is not considered a creation nor an independent idea unless it is very unique and original, and therefore, it is not, and cannot possess a copyright over it.

This type of muddle, is, unfortunately, symptomatic of the book. Patents are not given for original ideas, only for articles and methods – indeed ideas per se cannot be protected, only their expressions. The author is apparently unfamiliar with registered designs (in the US, design patents). In some countries such as Europe, and under the doctrine of unjust enrichment in Israel, there are also unregistered design rights. There protect unique shaping and enhancements of products. Unique implies one of a kind, and so there are no degrees of uniqueness. Copyright does not require something to be very unique or original. A small degree of creativeness is sufficient.

When discussing products created using pirated software, the author draws a distinction between graphic products and text products. The use of graphic products created with pirated software, according to Rabbi Elyashiv, is forbidden (7:6); according to the author this is the majority opinion. In contrast regarding text products created with pirated software, the author maintains it is apparently permissible to use according to all opinions (7:7). There is no explanation given for the basis of this distinction.

There is a fascinating discussion in the Talmud of an instance where a rabbi promised to respect a trade secret for a medical cure and then, on learning the secret, went back on his word and published it for the common good. Surprisingly, this is cited as a practical halachic ruling, derived from the Talmud directly 12:27. To this blogger, it is not clear that the story is meant to be taken as guidance for normative behavior, and could be considered anecdotal (aggada).  Somewhat disturbingly, the author goes on to rule that one cannot divulge a trade secret even in life and death situations.

It was interesting to learn that in 1519, i.e. well before the Statute of Anne of 1709, the semiautonomous Jewish community of Europe instituted a 10 year exclusion right against republishing a book. See 2:3.

Another treat was details of where pseudoepigraphy, where a work is falsely attributable to an earlier author, is considered acceptable in Jewish law. Unfortunately, the conclusion I draw from this is that not only where something is stated as being Biblical, but even where it is attributed to a Rabbi of generations past, one cannot take such statements seriously unless fully referenced. For this reviewer, the theory that Shimon Bar Yochai authored the Zohar is no longer tenable.

Copying software, videos and the like are discussed in detail. Some opinions cited are more authoritative than others. In Jewish law, apparently photographs and vocal recordings are considered not protected, but the author makes it clear that civil copyright law is binding 17:17. The sources of rulings are not given in the main text, but generally appear in the footnotes.

Responsa are generally specific practical rulings that issue in a given set of circumstances at a specific time and place, against a particular political backdrop. A good example of this is the prohibition or otherwise of competing with an edition of a Jewish religious text published by a non-Jew. Such cases are fascinating from a scholarly perspective, but the book does not provide enough details for this purpose. In terms of how to act in the modern world, the value of such rulings is strictly limited.

Confusingly, the book considers applying different words to a known melody is forbidden as long as there is civil copyright in the melody. This implies that after that period, it is permitted to sing different words to the tune. Singing the words of a song to the original tune is, however, apparently never permitted, which is most confusing. (It also does not square with common practice such as singing Dror Yikra or Adon Olam (famous Shabbat hymns) to Ron Eliran’s Sharm el Sheikh or to one of the Beachboy’s hits). The big controversy worldwide involves downloading music from the Internet. However digital music files are not discussed within the book.

Relating to a 1996 law concerning cassettes is not the same, not least because analogue copies are of a lower quality, whereas digital files may be identical to the original. Punitive fines are not discussed. Restitution appears to be the generally prescribed method of making amends. This is clearly adequate for basically moral people who respect the property rights of others, but may occasionally err.

A legal system that provides protection from the less moral may need punitive fines and not just restitution. Furthermore, the types of restitution suggested in the book, is sometimes a little eccentric. For example, if someone subscribes to a listing of flats available for rent / purchase, where there is a contractual obligation not to disseminate the information, the restitution suggested, apparently by the author, is to pay a second subscription from when the first, voided subscription was taken out. This links the fine to the length of subscription. I’d have thought a daily or weekly subscription for every person with whom the information was shared would be more appropriate.

At the end of the book, some rulings of contemporary halachic authorities are given. The range of authorities chosen is somewhat sectarian Ashkenazi of the Lithuanian school. Since the subject matter relates to moral and property rights and should be equally binding on religious Jews of different persuasions, I would have preferred a presentation of the views of a wider selection of leading figures of different flavours, at least including Sephardic authorities, halachically observant academics and jurists and Centrist Orthodox Rabbis.

We found the present volume disappointing. Nevertheless, we applaud the author and publisher on the initiative. There is certainly a need for an up to date work on Intellectual Property in Halachah / Mishpat Ivri. Note: Professor Jeremy Phillips has also reviewed the book. See: http://the1709blog.blogspot.com/2010/03/copyright-in-jewish-law.html

 Copyright in Jewish Law, by Rabbi Nachum Menashe Weisfish published by Feldheim 2010. ISBN 978-1-59826-442-5

Feedback on this review would be extremely welcome.



Categories: book review, Copyright, Intellectual Property, Israel Copyright

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