Intellectual Property and the Dead Sea Scrolls*

Home , Amir Drori, Hershel Shanks, Robert Eisenman

INTELLECTUAL PROPERTY AND THE DEAD SEA SCROLLS*

TIMOTHY H. LIM University of Edinburgh

On 30 August 2000, the Supreme Court of Israel, comprised of Chief Justice Aharon Barak, Justice Ya®acov TŸrkel and Justice Dorit Beinish, sitting as the Appellate Court for Civil Appeals, handed down its decision in the appeal of Elisha Qimron v. Hershel Shanks, Robert Eisenman, James M. Robinson and Biblical Archaeology Society (hereafter: Qimron v. Shanks et al. ). It af rmed the decision of Justice Dalia Dorner in her ruling for Qimron as the then-Judge of the District Court of Jerusalem. Subsequently, a petition for rehearing of the appeal was led and later withdrawn by Robert EisenmanÕs lawyer. Hershel Shanks has paid the amount, including court costs, in full. Of cially, the case is over. But the rami cations of this controversial decision are only begin- ning to be recognized. This short article will 1) brie y outline the background to the case, 2) discuss the main points of both the original judgment and the appeal decision, and 3) offer some personal re ections on how this case will affect the way we work as Qumran scholars. What I will say in 1) and 2) have to be taken in the context of recent events and the original judgment and the appeal decision. Now that both opinions of the Israeli courts are available in English translations, 1 I would suggest that all of us read them in full rather than depend upon summaries, including the present one.

*Originally presented at the International Organization for Qumran Studies, Basel, Switzerland, 7 August 2001. Thanks to Prof. Florentino Garc’a Mart’nez for the invi- tation and the British Academy, the Faculty Group of Arts, Divinity and Music of the University of Edinburgh and the Senate of New College, Edinburgh, for nancial sup- port. Many thanks to Hector MacQueen, David Nimmer, Hershel Shanks, and Michael Birnhack for comments on earlier drafts of the paper. 1 Published in On Scrolls, Artefacts and Intellectual Property (eds T.H. Lim, H.L. MacQueen, and C.M. Carmichael; JSPSup 38; She f eld: Shef eld Academic Press, 2001) 26–62 and 233–59.

©Koninklijke Brill NV, Leiden, 2002 Dead Sea Discoveries 9, 2 Also available online – www.brill.nl 188 TIMOTHY H. LIM

The translation of the Judgment (ÒOpinionÓ in American legal parlance) by Dalia Dorner is authorized, done by me with help on legal termi- nology both in Hebrew and in English from Michael Birnhack of the Faculty of Law, University of Haifa, and my colleague Hector MacQueen, Dean of the Faculty of Law at the University of Edinburgh. The translation has already been used as the basis of Justice DornerÕs own lec- ture at the Haifa Conference in Spring 2001. I say this not to draw attention to my own work, but to note that I am aware of several dif- ferent versions of this Judgment —two in Hebrew and an uno f cial English translation of the draft version which was used during the trial. The draft version has been heavily edited in the o f cial publication (see, e.g., §§7 and 10) and Justice Dorner has vetted my English translation and given her approval. It is this authorized English translation that I refer to when I speak of DornerÕs Judgment (hereafter: Judgment).

Background The case is known to most of us, since many of us lived through it as interested spectators, witnesses, or litigants. For the bene t of those unaware or uncertain of the details of the background, let me brie y rehearse its history. On 14 January 1992, Qimron brought a suit in the District Court of Jerusalem against Shanks, Eisenman, Robinson and Biblical Archaeology Society (hereafter: BAS) for infringement of copyright, material and moral, in the publication of A Facsimile of the Dead Sea Scrolls. Prepared with an Introduction and Index by Robert H. Eisenman and James M. Robinson (Washington, DC: Biblical Archaeology Society, 1991) (Dorner, Judgment §14). The action was taken because included in the pub- lisherÕs Foreword, written by Shanks, was the transcription of the working copy of the composite text 2 of MMT. Although already published by Zdzislaw Kapera of Krakow in the December 1990 issue of his journal, The Qumran Chronicle , Shanks had republished the 120- line text without QimronÕs permission and without mentioning his name. Qimron did not sue Kapera, but instead sought the intervention of Amir Drori, then-Director of the Israel Antiquities Authority, who sent

2 Hebrew: . But note the Supreme Court decision calls it Òthe Deciphered TextÓ ( ).