On 26 June 2011, JMB, Factor & Co. Israel’s International Patent Attorneys, together with Yad HaRav Herzog, a non-profit organization that publishes the Talmudic Encyclopaedia and variant texts of the Talmud from manuscripts and first editions, co-hosted a full day conference on Intellectual Property in Jewish Law.
The program featured a star-studded cast of leading IP scholars, authorities on Jewish Law and academics specializing in Hebraic Law and Jewish History.
Knesset Member Isaac Herzog spoke about his grandfather, the late Chief Rabbi Itzhak Isaac Herzog’s multifaceted legacy, and Rabbi Professor Israel Steinberg, Director of Yad HaRav Herzog, Israel Prize Laureate and world authority on medical ethics welcomed the participants.
In the first session, chaired by Rabbi David Fuld, Rabbinic Judge Zalman Nechemia Goldberg, the Former President of Israel’s Supreme Rabbinic Court, known by his acronym haGarzan, (the machete), due to the sharpness of his intellect, argued that the basis for payment for use of a creation in Jewish Law is simply that one should pay where on benefits from another’s toil. Developing the possibility of conditioning a sale discussed in Talmudic literature, he went on to suggest that this contractual relationship was similar to software licenses and provided a traditional Jewish equivalent to modern copyright. Another former President of the Supreme Rabbinic Court, Rav Shlomo Daichowski addressed the issue of ownership of intangibles from a different perspective and also paid tribute to Rabbi Uri Dasberg, tragically killed in a car crash, and in whose memory the event was dedicated.
Rabbi Professor Yehiel Kaplan of Haifa University respectfully showed the inadequacy of the former approaches for addressing the complexities of modern IP issues, and Rabbi Yisrael Rozen, the head of the Tzomet Institute, a non-profit, public research institute dedicated to seamlessly merging Hallachic Judaism with Modern Life, went on to suggest that rather than creating a new Hallachic wheel, the Rabbinic leadership should recognize Knesset legislation on civil issues such as intellectual property, as religiously binding civil ordinances (takanot) rather than recreating the wheel.
In the plenum on comparative law, Dr Roman Cholij, a UK Trademark Attorney with doctorates from both the Vatican and from Oxford University spoke about IP in Canon Law and alluded to the story of the Irish St. Columba (521-597 CE). When visiting his former teacher St. Finnen of Clonard, Columba copied a beautifully illustrated psalter. Finnen asked that the copy Columba made, be returned to him, and when Columba refused, Finnen took his case to King Dermott.
Prof. Amir Khourie of Tel Aviv University eloquently discussed intellectual property in Islamic countries and in the context of Sharaya, Islamic law.
Rabbi Prof. Gershon Bacon, a historian from Bar Ilan University traced the roots of intellectual property back to the Bible, citing Jeremiah 23:30 where the prophet curses false prophets who plagiarized him. He went on to show that from the earliest times, the rabbis were careful to acknowledge the authorship of ideas. which is an acknowledgment of moral rights.
Copyright per se became an issue with printing, and developed in Jewish law to protect publishers and to guarantee a return on investment by providing a limited monopoly, typically 20 years, by a ban published at the front of the book, that threatens exclusion from the community to copiers. He presented an Italian example of this type of ban from 1620, nearly a century earlier than the statute of Anne (1709).
Rabbi Prof. Nachum Rakover, an Israel Prize laureate, who published a book on Copyright in Jewish Law (Hebrew) about 20 years ago, developed this theme further, but argued that from its earliest days the purpose of such bans was to encourage the creation and dissemination of knowledge by compensating publishers and authors, rather than to create private wealth.
Leading US Copyright Authority, Prof. David Nimmer, and Prof. Neil Netanel, both from UCLA, lectured using material from their forthcoming book: Copyright in Jewish Law from Maimonides to Microsoft. They demonstrated that rabbinic decisions on copyright through the ages have been influenced by the corresponding secular law.
Although the program was heavily focused on copyright, other types of IP were also discussed. I gave a brief overview of patents offering solutions to challenges in various areas of Jewish law, including ritual slaughter, correct reading of the Five Books of Moses with the cantillation via projection of notes and vowels onto the parchment of the Torah scroll, technologies for enabling usage of electrical appliances on the Sabbath and high density burial solutions for better usage of land. I also discussed trademark controversies of Jewish interest and showed how the Rabbinic Court of the Orthodox Union in the US uses trademark law to prevent foods from being illicitly passed off as Kosher and how the various parties in the Bobov Hassidic leadership inheritance struggle tried to use trademark applications filed with the USPTO and the Israel Patent Office to strengthen their positions.
Rabbi Prof. Steven Resnikoff of De Paul University discussed how Jewish law relates to various controversial areas of patenting such as the gene patent controversy in the US. He noted that the challengers of Myriad’s patents for breast cancer transmitting genes were represented pro bono by members of Yeshiva University’s Cardozo Law School. He related briefly to patenting brain stem cell research, which is controversial in Europe and in the US due to moral issues. However, in contrast to the Catholic approach which sees life as commencing with conception, in Jewish Law, life is generally considered as starting with tissue formation some 40 days later, so the issue is generally considered less problematic by the rabbis.
Prof. Jeremy Phillips concluded the rather full program by discussing trade secrets in the Talmud. The event attracted some 200 participants including lawyers, patent attorneys, Rabbis and academics.
I take this opportunity to thank the staff of Yad HaRav Herzog, of JMB, Factor & Co., the speakers and the participants for maing this happen. We particularly thank Rabbi Dr David Fuld for his support and Chaim Falk who put me in touch with Yad HaRav Herzog and did some fundraising, We note that his late father, Prof. Zeev Falk published an earlier paper on IP in Jewish Law in 1946.
The event was held in memory of Rabbi Uri Dasberg who was tragically killed in a car crash a month earlier. Back in 1996, Rabbi Dasberg’s daughter Effie and husband Yaron were murdered by Arab terrorists in a drive by shooting. Rabbi Dasberg adopted and brought up his orphaned grandchildren. Rabbi Dasberg was well-known for his work editing the Halakhic journal Tchumim, the Talmudic Encyclopedia and the mainstream Shabbat b’Shabbato weekly Torah pamphlet widely distributed in Synagogues across Israel.
In his memory and sorely missing his help, I will endeavour to upload transcripts and videos of the lectures in Hebrew and English, and photos of the event onto the Internet shortly and to publish the conference proceedings as a book. Articles and other contributions from the participants of the event and other interested parties will be considered for inclusion.