Hebrew poems praised the art which republished the mahzor arguing that ‘enables one man to write with many the Heidenheim edition had sold out. pens’ (Abrams, 1993). Rabbi Mordecai Benet supported the Realizing that economic conditions Dirhenport publishers, on the basis that were changing, the rabbis set out to the herem only had binding force in the create halachic decisions that would area of jurisdiction of the rabbi that reward investments made in printing. issued it, and the law of the land did They were afraid that as there was now not forbid republication. Heidenheim an alternative to hand written scrolls won on the basis that he needed to sell for study purposes, unless they multiple editions to repay his intervened to offer protection to investment in the annotations (Herzog, printers and publishers, Torah study 1965). texts might disappear altogether. R. Joseph Saul Nathansohn (d.1875) ANOTHER PENNY A counter argument was put by R. said ‘Jewish law, even in the absence FOR YOUR Schmelkes of Przemysl: ‘Everyone of an express herem, lays down that it retains the right to study and teach. is unlawful to reprint an original work THOUGHTS Why should another not be able to without permission, for the creation of benefit his fellow men and print and the author’s mind is his property.’ He sell cheaply?’ When Rabbi Meir may have been influenced in his Katzenellenbogen published an opinion by emerging patent law in Ruth Soetendorp improved edition of Maimonides’ contemporary Poland. The rabbis code, a non-Jewish publisher printed debated the geographic scope of a In MANNA 86 (Winter 2005) the same work and sold it at a lower herem within a haskamah on the basis Professor Ruth Soetendorp began price. Rabbi Katzenellenbogen that a publisher often distributed books a groundbreaking exploration of appealed to Rabbi Moses Isserles of to many communities. In practice, it Judaism and intellectual property Krakow to intervene. This he did by was rare for infringements to result in law. This article concludes her publishing a herem, excommunication excommunication, as rabbis soon study, with its focus on the impact order, forbidding Jews to purchase recognized that monetary damages of the invention of the printing from the non-Jewish publisher until the were a more logical sanction. press. Katzenellenbogen version had sold out. The rabbis made clear that a Interestingly, the herem was imposed publisher owned no proprietary rights N A 1923 ENGLISH COPYRIGHT on purchasers rather than on the in the intellectual content of their work case1 Lord Atkinson commented printer. Rabbi Isserles’ ruling was because the intellectual content was Ithat an infringer of copyright innovative but impractical. It is part of the public domain, (Babylonian ‘disobeyed the injunction “Thou shalt nowadays easier, and more Talmud Ketubbot 106a). Jewish law not steal”’. In the 1988 House of Lords economically beneficial, to enforce a did not permit an author to sell the decision in CBS Songs v Amstrad2, a copyright infringement against a fruits of his intellect, although an case in which the record industry publisher rather than a purchaser. author was entitled to compensation attempted to prevent Amstrad A publisher would get a written for the labour invested in preparing the marketing tape to tape recorders, Lord statement from a local rabbi and place work. The rabbis held that a publisher Templeman dismissed that comment. it in the front of each copy, warning may receive compensation for the work ‘My Lords, these considerations cannot that any person infringing the work involved in editing or annotating a enhance the rights of owners of would be subject to a herem. These manuscript because book readers in copyright or extend the ambit of haskamot have their modern equivalent Talmud times were paid. The rabbis infringement… [intellectual property in the copyright notices found in the recognized the need to protect a rights] are defined by Parliament, not front of any book, like the copyright publisher’s investment in the labour of by the clergy or the judiciary.’ notice in the front of any ArtScroll editing and annotating. The intellectual There is no direct Talmudic publication. Secular copyright notices content of responsa, compilations of reference to copyright. For centuries, do not always refer to civil action or rabbinic questions and answers, was Torah debate had formed the core of criminal persecution. In England, original, but because they were always study, and there were inhibitions about failure to alert the public to copyright written in connection with text which committing the oral law to writing. in a work may prejudice an was in the public domain, or published Whatever was written down was done infringement claim for damages. in the context of Torah study texts, in privacy and preserved as a ‘secret’ The enforceability of rabbinic law they were not protected. scroll. There was no concept of an was based on the accepted doctrine that The nineteenth century rabbis would author’s original work being protected, the territorial area of jurisdiction of have been aware of secular develop- because that would have been in any one rabbi was severely limited. ments in international intellectual conflict with the teaching that ‘the This was tested in the nineteenth property law3. On the basis of the rivalry of scholars increases learning’ century Roedelheim mahzor case. Talmudic dictum dina d’malchuta dina (Babylonian Talmud Baba Batra 21 b). Wolf Heidenheim published a revised – the law of the land is the law – they The spread of printing in the text of an annotated mahzor in a began to argue for recognition that the sixteenth century changed things German version, bearing a rabbinic labour involved in authoring an origi- radically. Printing equipment was haskamah banning unauthorized nal work was entitled to reward. In the expensive to purchase, and only a print publication for twenty-five years – the Diaspora, contemporary observant run of many volumes would recoup the general length of ban was between ten communities can choose to use the investment. The Jewish printer was and twenty-five years. Publishers in secular courts to resolve disputes seen as the ‘performer of holy work’. Dirhenport ignored the herem and which would, in the nineteenth cen- tury, have been brought to a rabbi or a The museum is claiming $100,000 in Canavan gene. Subsequently the doctor beit din. In 2002 the U.S. 2nd Circuit respect of irreparable damage.7 The US and his hospital acquired a patent for Court of Appeals heard a dispute be- Patent and Trademark office has applications of the gene, and used their tween Merkos L’Inyonei Chi and Otsar recently refused to register The patent to prohibit Canavan testing Sifrei Lubavitch4. Merkos claimed that Kabbalah Centre’s application to without payment of a licence fee. The Otsar’s new version of the prayer book trademark the term ‘Kabbalah Red families sued the patent owners. In violated Merkos’ copyright by slav- String’ on the grounds that the group’s 2003 a settlement was agreed whereby ishly copying the Merkos English application ‘merely describes the royalty-based genetic testing by certain translation of the prayers. goods/services.’ licensed laboratories will continue In Israel there is also a choice Rabbis do not appear to have been alongside royalty-free research by between consulting a beit din or using drawn into the debate concerning institutions, doctors, and scientists the Israeli national court. Israeli state patentable inventions. Herzog suggests searching for a cure12. legislation conforms with international that this is because Jews were not Rabbis continue to explore the standards set by the Agreement on permitted to join the mediaeval trade possibilities of applying halachic Trade Related Intellectual Property guilds. Nevertheless, Jews have always concepts to modern intellectual Rights (TRIPS) and the Patent Co- been inventive. The Jewish property dilemmas. Hasagat ha g’vul operation Treaty. In 2000 the Israeli Encyclopaedia refers to the thirteenth (the prohibition against moving a courts were required to decide whether century invention by Jacob ben Machir boundary stone, as in Deuteronomy Quimron, the academic scholar who ibn Tibbon of the ‘quadrans judaicus’, 19:14) underpins rabbinic intellectual ‘filled in the gaps’ between the the navigational tool that contributed property thinking. Whilst there have fragments of dead sea scrolls found at significantly to Spanish exploration of been disputes as to whether the Q’mran, was entitled to copyright in the New World. principal of dina d’malchuta dina his work. If his work were a true The Talmudic argument in support applies to all secular law, reproduction of the original missing of recouping an investment could contemporary conclusions are that words, how could it qualify for equally be applied to patented copyright legislation which promotes copyright protection? inventions where the twenty year social justice and fairness should be The court decided the intellectual monopoly can be justified because of recognized by Torah law as binding. skill and labour invested in his work the money invested in research and Nonetheless, differences of opinion was sufficient to qualify it as original development. For some inventions, continue. Google ‘rabbi+napster’ and in copyright terms. Copyright gave such as the Kosherlamp™that you will find several examples of Quimron control as to who could facilitates night reading over Shabbat, rabbinic debate concerning whether access work, which meant, in effect, a it is important the invention be certified downloading is or is not theft. Rabbi monopoly over the use of the halachically acceptable, as well as Schneider writes: ‘Sometimes it may ‘completed’ scrolls5. This decision patented to ensure the inventor reaps happen that one posek’s (authority’s) illustrates the difficulties encountered his reward. mitzvah is another posek’s aveirah when one person’s individual Patent databases are respected (sin).’ intellectual property right gives him a sources of technological information. On the subject of photocopying monopoly that limits another person’s A quick search of the European Patent material for a class, one twentieth freedom of use. Database ‘espacenet’ 8 using ‘Jewish’ century rabbi thought it acceptable for There is little rabbinic discourse on or ‘Kosher’ will yield a number of a teacher to photocopy an article for trade marks or branding, even though inventions. These range from the her own use, but not for classroom ‘trade marks’ in the form of special quirky like a prayer shawl that can be distribution. Whilst another suggests shapes denoting origin for the worn as a scarf with the tzitzit – fringes that a teacher who makes copies for the shewbread were known in temple times – conveniently folded away9 to the students is performing the mitzvah of (Herzog, 1965). This is not to say that quirkier, such as a mechanism for part- saving the students expense.13 Jewish symbols do not make attractive printing a Torah scroll allowing for a Rabbi Nechemia Zalman Goldberg14 trade marks. That was the thinking sofer to complete the lettering to ensure suggests ‘shiur’ or retention could behind a Canadian messianic Christian its kashrut10. Patent documents give provide an opportunity for the owner group, Chosen People Ministries, Inc, insights into a range of problems facing of an intellectual property right to who chose to register a menorah as its the Jewish community, from the design retain the right whilst giving others a trade mark. The registration was of pens to hold cattle for shechitah, to a licence to work the right, in exchange successfully challenged by the method of projecting the cantillation for royalties. He makes an analogy Canadian Jewish Congress on the marks onto a Torah scroll to facilitate with the seller of sheep who retains a grounds that no organization should be chanting in public11. right over the shearings and offspring able to monopolize the menorah. It Patents won’t be granted for (Schneider, 1997). Rabbi J. D. Bleich15 would have been ironic if the discoveries of what exists in nature, sees a distinction between tangible registration had been upheld. Jewish which includes genes or gene objects that can be the subject of theft, organizations would have been barred sequences. But patents can be granted and intangibles that cannot. Taking an from using or adopting the menorah, for inventions that disclose an animal that has been sacrificed is theft, which has always been associated with industrial application of a gene smelling the pleasing aroma of the Jewish culture, as a mark.6 sequence. Canavan disease results in ketoret (accompanying spices) used in Sheer chutzpah can be an element of brain degeneration, and occurs most the temple is not (ayn meila ba- some actions. The anticipated Jewish frequently in Ashkenazi Jewish re’ach).16 Halacha has long been able Rock & Roll Hall of Fame virtual families. Affected Jewish families to address the concept of trading in museum website is being challenged organized tissue sample donations to a things that are not yet in being, making by the Rock and Roll Hall of Fame doctor who, in 1993, concluded the it possible to convey ownership Museum for infringing their trademark. research necessary to identify the (kinyan) in anticipated crops, or futures, for example. A similar rule Sources and References applies to copyright in future works, Israel Abrams, Jewish Life in the Middle Ages, making it possible to pay book royalty Jewish Publication Society, New York, 1993, ISBN: 827605420. advances. Isaac Herzog, The Main Institutions of Jewish Rabbinic law comprises a treasury Law, Vol 1 The Law of Property, Soncino of wisdom accumulated from learned Press, London, 1965 teachers through the ages. No doubt it Israel Schneider, Jewish Law & Copyright © 1997-2003 available online http:// will continue to be adaptable and www.jlaw.com/Articles/copyright1.html applicable to intellectual property Arthur Jay Silverstein, ‘Copyright in Jewish disputes the future
Jaw’, EDAH 1974, available at http:// www.edah.org/backend/document/silverstein/ RUTH SOETENDORP is the first holder of silverstein2.html the Chair in Intellectual Property Management Mathew I Kozinets in Journal of International at Bournemouth University. Her Jewish Law and Policy, 1983, University of California education began at the Welwyn Garden City 1 Macmillan & Co Ltd v K & J Cooper (1923) Hebrew Congregation cheder, and continues LR 51 Ind App 109 at 118 through her partnership with Rabbi David 2 CBS Songs Ltd and others v Amstrad Soetendorp, and includes being founder Consumer Electronics plc and another 1988 facilitator of the Bournemouth Jewish Women’s 2 All ER 484 Study Group and Bournemouth Limmud. 3 Paris Convention for the Protection of Industrial Property 1883, The Berne Convention for the Protection of Literary and Artistic Works 1986, The Madrid Agreement for the International Registration of Marks, 1891 4 Merkos v Otsar U.S. 2nd Circuit Court of Appeals 2002 5 Eisenman v Qimron In the Supreme Court, sitting as a Court of Appeals C.A. 2790/93, 2811/935[1]http://lawatch.haifa.ac.il/heb/ month/dead_sea.htm 6 Canadian Jewish Congress (Applicant) v Chosen People Ministries, Inc and the Registrar of Trade-Marks (Respondents) t-3- 00 2002 FCT 613 7 cnn.com report February 9, 2005 8 Espacenet European Patent Office database: ep.espacenet.com 9 U.S. Patent no 2,051,274 (1936) http:// ep.espacenet.com 10 U.S. Patent application 20020116410 (2002) http://www.uspto.gov/patft/index.html 11 U.S. Patent application 20040257301 (2004) http://www.uspto.gov/patft/index.html 12 The Canavan Foundation, http:// www.canavanfoundation.org/news/09- 03_miami.php 13 Copyright Designs & Patents Act 1988 covers acts permitted with regard to copyright works, and the Copyright Licensing Association manages licences for copying for educational purposes. 14 Cited in Rabbi Israel Schneider, Jewish Law & Copyright, http://www.jlaw.com/Articles/ copyright1.html 15 J. D. Bleich Contemporary Halachic Problems, Vol 2, KTAV 16 Cited in report of Rabbi Zev Reichman’s lecture ‘Would a ‘Beit-din close Napster down?’ http://www.ou.org/torah/articles/ napster.htm