Copyright in Halakha (Part 2)
YHE-HALAKHA: TOPICS IN HALAKHA
This week's shiur is being sponsored by Mr. and Mrs. Harold N. Rosen.
COPYRIGHT IN HALAKHA (PART II)
Rav Chaim Navon
IS THERE SUCH A THING AS AUTHORS' RIGHTS?
In the previous shiur, we surveyed the attempt to regulate the issue of authors' rights based on monetary concepts borrowed from other realms of law. This attempt is exceedingly imaginative and inspired, and in its context even indispensable; but it does not suffice. The enormous intellectual and spiritual efforts made by leading Acharonim to establish authors' rights on existing halakhic principles yielded impressive practical results, but they could not encompass the complex totality of problems arising in this area. This is for a simple reason: It is impossible to regulate the issue of authors' rights, without granting recognition to the fact that an author has rights to the work that he created. We saw the attempts to establish Halakha's attitude to the rights of an author while ignoring these rights, and Halakha's attitude to side issues, e.g., limiting commercial competition, or imposing liability on the copier for the benefit the he derived from the monetary expenditures of the original author. These attempts arouse fundamental dissatisfaction, and also practical problems, some of which were discussed in the previous shiur.
I must admit that my formulation is not entirely fair. I started with the assumption that Halakha must deal with the issue of authors' rights based on the recognition that authors do in fact have rights, and based on this assumption I demonstrated that Halakha's success in this mission is only partial. It is, however, possible to disagree with my assumption. One may certainly come and argue that indeed Halakha does not recognize the special rights that an author has to his work, and that it denies these rights on fundamental grounds and based on ethical considerations. If this is true, the discussion regarding authors' rights does in fact exhaust itself in the application of the laws governing competition and benefit, as in any other realm. It may be argued that Halakha does not relate to authors' rights in a comprehensive manner for the simple reason that it does not recognize these rights. Indeed, there is a modern authority who has argued that all talk about authors' rights is an outright mistake, born from "the manners of the nations of the world."
It should be clarified that we are dealing here not with a halakhic issue, but with an issue relating to values, a "meta-halakhic" issue if you wish. When a particular right is not protected by Halakha, it may be argued that this disregard is intentional, and that Halakha ignores the particular right because in truth it does not recognize it as a value. Alternatively, it may be proposed that this does not reflect any fundamental reservation, but rather a time-related problem. In this way we suggest that Halakha's ignoring of the issue of authors' rights is based on the fact that when Halakha was fashioned by Chazal, the notion of authors' rights was irrelevant.
This is not a general, fundamental issue, but rather a local one that must be discussed anew regarding every case in which it arises. In our case, we must discuss whether or not from a moral perspective the Torah recognizes the right of an author or artist to enjoy the fruits of his creation. As a standard to answer this question, let us use the attitude of Acharonim to this issue: Do they aspire to anchor authors' rights in Halakha, or do they see the very concept of authors' rights as "the manners of the nations of the world" that are not binding upon us.
In my humble opinion, the overwhelming majority of the responsa of the Acharonim paint an unequivocal picture: Our halakhic authorities assumed as obvious that from a moral perspective a writer or artist enjoys rights to his work, and they toiled to anchor this right in Halakha. As we have explained, this mission is very difficult, because it must encompass the entirety of the ramifications of authors' rights within a framework in which the basic concept of authors' rights does not exist. An overwhelming majority of the responsa, however, clearly reflect a strong motivation to bestow binding halakhic force upon authors' rights.
As a clear example of this attitude, let us bring the words of Rav Yosef Shaul Nathansohn, author of Responsa Sho'el u-Meishiv:
Without a doubt, regarding a new book that an author publishes and he merits that his words appear in the world, it is obvious that he retains a right to it forever. Surely without this, if they print or renew something, another person is not permitted to do this without his consent. Surely it is known that Rav Avram Yaakov from Harovtshov who did calculations with a machine, received payment all his life from the government in Warsaw. Should our perfect Torah not be like their vain talk? This is something that reason rejects. And it is a daily occurrence that one who publishes a book, he and his representatives have a right to it. (Responsa Sho'el u-Meishiv, mahadura kama, I, no. 44)
The Sho'el u-Meishiv sees as obvious that an author enjoys rights to his work. Striking, however, is the absence of a clear and solid halakhic rationale. The Sho'el u-Meishiv's arguments belong to the moral realm: A comparison to the laws of the nations – "Should our perfect Torah not be like their vain talk?" - and reliance on moral instinct and human reason – "This is something that reason rejects." What stands out here is the tension between the clear moral recognition of authors' rights and the meager expression that these rights find in Halakha as it has come down to us.
In a larger context, R. Shimon Shkop speaks about the notion of spiritual property, incidentally to his discussion regarding a person's liability for damages caused by a pit ("bor"):
Just as in matters that are advantageous to a person, it is agreed according to the laws of the Torah and the laws of the nations that whosoever invents something new in the world, he is its owner for anything advantageous to him, so too the Torah calls a person who prepares a hazard by the name "owner of the pit" or "owner of the fire," and imposes liability on the owner of the hazard. (Chiddushei Rav Shimon Shkop, beginning of Bava Kama)
Rav Shimon innocently writes that "it is agreed according to the laws of the Torah and the laws of the nations that whosoever invents something new in the world, he is its owner for anything advantageous to him." Is this true? Halakha does not directly relate to such rights, nor does it fully recognize their practical ramifications. At the very least, however, we can learn from Rav Shimon's incidental comment about his moral inclination and ethical outlook. Rav Shimon clearly understands that from a moral perspective, we cannot ignore the rights of an author or artist or inventor to the work that he created.
We shall examine below the possibility of recognizing authors' rights as halakhically binding in a direct manner, without relying on other concepts, and without resorting to roundabout methods. We shall examine three such mechanisms discussed by the Acharonim: dina de-malkhuta dina ("the law of the land is the law"), professional convention among authors and artists, and rabbinic enactment. These are three mechanisms that allow for the addition of new arrangements to Halakha.
We shall briefly examine the three aforementioned mechanisms, before we discuss each one in detail. Let us first discuss the idea of dina de-malkhuta. When we rely on dina de-malkhuta, we remove the issue under discussion from the realm of Halakha's authority, and recognize the law of the land with respect to the matter. In practical terms, this may provide an appropriate solution. As a matter of principle, however, when we recognize dina de-malkhuta not as something forced upon us from the outside, but as a desirable solution that helps us deal with situations that cannot be resolved from within based on halakhic sources – turning to the law of the land raises a serious ideological problem. In such a situation, we believe in a certain solution from an ethical perspective, but we are unable to give it fitting halakhic expression, and therefore we hang ourselves on the non-Jewish legislator that he should solve our problems. This poses a serious and dangerous challenge to the authority of Halakha as a living Torah that should direct and provide order to the entirety of our lives.
There may be some who view such an arrangement as positive, Halakha contenting itself with managing only specific aspects of our lives, and leaving the rest to the state. It seems to me that such a standpoint dangerously narrows the role and status of Halakha. Moreover, I am doubtful that this viewpoint has a foundation in the history of Halakha. Our Sages always tried to establish Halakha's position on all aspects of life. We do not find, for example, that Chazal intentionally ignored the laws of acquisition, transferring them to the authority and treatment of the governmental authorities. A situation in which we rely on dina de-malkhuta in order to anchor a moral value that is fully accepted in Halakha is exceedingly problematic from an ethical as well as an educational perspective.
Reliance on the professional convention among writers and artists is less problematic, because it does not transfer authority in this realm to an alternative institution, but merely bestows binding force on the common commercial practice. Here too, however, we relinquish the authority to establish binding halakhic rules that spring from the world of Halakha, and content ourselves with giving a seal of approval to the way that the world is being run without Halakha.
The third mechanism that we will examine is rabbinic enactment. Our Sages instituted many different ordinances across the generations. Sometimes we are dealing with local ordinances that relate to very specific circumstances. But sometimes Chazal instituted ordinances that brought whole new realms of law into existence, and introduced entirely new concepts into the world of Halakha. Thus, for example, the Gemara records a disagreement whether the lien on a debtor's property is by Torah law or by rabbinic enactment (Bava Batra 175b). According to the view that such a lien is only by rabbinic enactment, it was our Sages who innovated the institution of lien. The Rishonim disagree according to this approach whether or not there is any situation in which a lien takes force even by Torah law. According to the Tosafot, the view that a lien is by rabbinic decree maintains that a lien is never by Torah law. According to this understanding, our Sages created a halakhic concept ex nihilo, and in its wake they established an entirely new realm of Halakha, the centrality of which in the world of Choshen Mishpat is known to every student of Jewish law.
This may also be the situation regarding authors' rights, that a rabbinic enactment introduced the idea of authors' rights into the world of Halakha, and allowed for the creation of a system of clear rules to regulate this issue, rules that have halakhic force and are fashioned in accordance with Halakha's outlook on the world. We shall see below that some authorities have sided with this understanding.
It is important to emphasize that this approach does not impair Halakha's authority in any way. Our Sages of every generation recognized the fact that changing circumstances necessitate the development of new halakhic responses to deal with these changes. Sometimes it suffices to draw from the fundamental sources of Halakha, but sometimes developments are so drastic that in order to properly deal with the new phenomena, new halakhic concepts must be introduced. We are not dealing here with changing existing Halakha, which is exceedingly problematic both halakhically and conceptually, but rather with an addition to the existing Halakha. As we well know, throughout the generations our Sages have added layers of fences and ordinances to the basic core of Torah law. Therefore there are Acharonim who have unhesitatingly spoken about rabbinic enactments regarding the issue of authors' rights as well.
DINA DE-MALKHUTA DINA
Almost every source dealing with the issue of authors' rights mentions the principle of dina de-malkhuta as a basis. There seems to be a consensus that we are dealing with an area that falls under the jurisdiction of the civil authorities, both because we are dealing with a clearly monetary issue, and because Halakha has not crystallized its own attitude on the matter. The Acharonim invoke the rule of dina de-malkhuta dina in different and sometimes opposite directions, depending on the law of the land that was in force in their country. In our time there are clear national and international laws that regulate authors' rights, and relying on them allows us to establish orderly rules in this area. Earlier, we noted the acute problem that is raised when Halakha relinquishes an important realm to the civil authorities. If we are not troubled by this problem, the solution of dina de-malkhuta should suffice (of course, taking into account the general limitations of dina de-malkhuta – e.g., the problem of invoking it under Jewish rule in Eretz Israel).
Among the Acharonim who relate to the right enjoyed by a publisher that bars others from republishing a book that he had published for a fixed period of time, some argue that this right is anchored in a convention that is generally accepted in the publishing community. That is to say, the publishers themselves have agreed to accept the rights of each publisher and not to breach them. The Gemara in Bava Batra (7b) is the source for the halakhic force of such a convention:
The townspeople are also at liberty to fix weights and measures, prices, and wages, and to inflict penalties for the infringement of their rules. (Bava Batra 8b)
In the continuation (9a), the Gemara establishes that based on this principle, members of a particular profession may divide the days of the week among themselves, agreeing that whoever violates the agreement and works on a day that was not assigned to him will be charged a penalty. The Gemara also establishes that if there is an "important person" in the city, any such arrangement requires his consent.
As stated above, there are those who wish to rely on the halakhic principle of professional conventions in order to give authors' rights halakhic force. Thus, for example, writes R. Chayyim of Zanz, who adds that for this reason the book needs an approbation from a halakhic authority, for such conventions require the consent of an "important person."
There are, however, several serious halakhic problems with relying on professional conventions. The Parashat Mordekhai writes (Choshen Mishpat, no. 8) in response to the Chatam Sofer, that the halakhic authorities who maintain that publishers enjoy rights to the books they publish base their position on professional conventions. According to him, these authorities understand that presumably all publishers are in favor of this convention, and this is a case of members of a particular profession who stipulate rules among themselves. He adds, however, that in his day one can no longer rely on this professional convention, because there are many non-Jewish or non-ethical publishers, and therefore even the ethical ones are not in favor of such a convention, because in practice only they will be bound by its limitations. Moreover, the publishers of his day have explicitly voiced their opposition to it.
The Tzemach Tzedek (Yoreh De'a, no. 195) also argues that there is no agreement among the publishers that recognizes the rights of a particular publisher to the works he publishes, for they would not be in favor of such a convention. He also adds a more fundamental argument: According to him, silent agreement does not suffice, and in order to give force to a professional convention the members of that profession must explicitly declare that they accept the convention.
In our generation as well, certain authorities wish to rely on professional convention. Thus, for example, argues Rav Ezra Batzri:
This has the force of a convention of professionals who have enacted regulations among themselves… Since all book dealers act today in a certain manner, and this has become a clear and fixed custom, one is forbidden to violate this custom according to all opinions. ("Zekhut Yotzerim," Techumin 6 , p. 181)
The attempt to rely on professional custom raises a fundamental halakhic problem that requires clarification, namely, the question whether a fixed custom suffices or whether an explicit declaration is necessary. Beyond this, however, there seems to be additional problem in our generation. It is doubtful whether in our generation we can rely on professional convention in order to regulate the issue of authors' rights. Even if we assume that most of the professionals working in the realms under discussion respect the rights of their colleagues, this is clearly not the case regarding private individuals. A large part of the current problems in the realm of authors' rights arises precisely in the clash between private individuals and authors. Unfortunately, the common practice in this area is to treat authors' rights lightly. Relying on custom would essentially give a seal of approval to the current situation. When the common practice is unbecoming, we cannot draw from it halakhic force for norms that we deem unworthy.
In many cases the Sages pronounced a ban on anyone who impairs the rights of a publisher. Approbations to books often mention a ban pronounced on anyone who republishes the book within a fixed period of time. It should be noted that we seem to be dealing here with a personal ban, that is to say, with a direct and focused threat to a particular person, and not with a civil enactment that establishes the law that should apply in the situation.
Responsa Tzemach Tzedek (Yoreh De'a, no. 195) suggests that perhaps a monetary ordinance was enacted regarding this issue based on the principle of hefker bet din hefker, the court's authority to declare property ownerless. But he rejects this suggestion, arguing that for this purpose we need "a court that is authorized to declare property ownerless, like the court of Rav Ami and Rav Asi," that is to say, a court with special authority. In any event, even according to his initial understanding, we are dealing with a local enactment, which must be enacted anew for every case, and not with a general ordinance that can resolve the fundamental problem.
There are, however, those who understand that we are dealing here with a general and all-encompassing rule. The Chatam Sofer in several of his responsa (Choshen Mishpat, nos. 41, 79) refers to "an ancient ban" placed on someone who republishes a book without permission: "The decree is ancient, by all the Geonim on all people, even at sea… but here it must be renewed for each publisher, because not all cases are the same" (no. 41).
It must be admitted that even if we accept the broad position of the Chatam Sofer, we have still not reached a full system of laws regulating authors' rights. First of all, we must discuss the force and significance of the ban about which he speaks. But beyond that, even according to the Chatam Sofer, we are dealing with a ban that relates to the republishing of books when that causes a loss to the original publisher. It is impossible to derive from this ancient ban attitudes toward the complex system of laws governing authors' rights, as it exists today.
In this shiur we have examined several different attitudes toward authors' rights in Halakha. We have not dealt with all the details of the laws governing authors' rights in practice, but rather we have focused on the general question of the source of the halakhic force of authors' rights. We saw that the great majority of authorities dealing with this issue tried to anchor authors' rights in Halakha and guarantee the rights of an author to his work. All of them, however, encountered a difficult problem: the notion of "authors' rights" was never discussed in the Gemara or by the Rishonim. Chazal and the Rishonim do not appear to have recognized the special rights that an author or artist has to his work.
Our halakhic authorities adopted two main approaches in their treatment of this issue. Some tried to base authors' rights on other halakhic principles, especially upon the laws of encroachment and the laws of benefit derived from another person's property. With their sharpness and creativity, these authorities succeeded in covering some of the cases of authors' rights with these principles. However, the fundamental lack of correspondence between the question under discussion and the halakhic principles taken from entirely different realms, made it impossible to reach the full goal of encompassing the entirety of authors' rights and anchoring it in Halakha.
Other authorities chose a different approach, trying to recognize the notion of authors' rights in all its senses, by adding another layer to Halakha: by way of dina de-malkhuta dina, professional convention, or rabbinic enactment. Relying on professional convention, and especially on dina de-malkhuta dina, achieves the desired goal, but at the steep price of relying on an external source, and relinquishing the authority to establish appropriate rules of conduct based on Halakha and the teachings of its Sages. Relying on rabbinic enactment does not raise this problem, but it is doubtful whether such an enactment actually exists.
The desired solution of the problem of authors' rights in Halakha seems to lie in the establishment of new and binding rabbinic enactments, that would encompass the entirety of the laws of authors' rights, and discuss them based on halakhic and moral principles. Such enactments would raise the prestige of Halakha and allow it to control a broad and important realm that today in great measure has slipped away from its hold. It may very well be that we cannot enact such enactments today. But if this is the case, we should at least know to hope for the day when God will "restore our judges as at first, and our counselors as at the beginning," and they will restore to Halakha its splendor and might, as in days of old and as in former years.
(Translated by David Strauss)
 Rav Shmuel David Munk, Responsa Pe'at Sadekha, no. 158, cited by Prof. Nachum Rakover, Zekhut Yotzerim bi-Mekorot ha-Yehudiyyim, Jerusalem 5751, p. 91.
 The reference is to a Jewish mathematician who invented a calculating machine, and was awarded a fixed annual stipend from the Russian treasury (Rakover, above, note 1, p. 251, note 6).
 This argument, which brings a proof from the laws of the nations - "Should our perfect Torah not be like their vain talk?" – rests on the assumption that we are dealing here with righteous and moral laws, for we certainly don't want to learn flawed laws from the other nations.
 Though subject to the various limitations regarding the application of the principle of dina de-malkhuta dina.
 This is similar to the model proposed by the Ran regarding the division of judiciary authority (Derashot ha-Ran, homily 11). Rav Isaac Herzog sharply criticized this model. See his book, Techuka le-Yisrael al pi ha-Torah, II, pp. 76-77.
 See Tosafot, Bava Batra 175b, s.v. davar, and Rashba, Gittin 50b, s.v. amar.
 Another example, though less clear, is the law of garmi, according to the position of the Ritzba (Bava Batra 22b, s.v. zot).
 The Gemara in Gittin 10a proves that the rule of dina de-malkhuta dina does not apply to matters of ritual prohibitions and permissions, but only to monetary issues.
 The Shakh rules that the rule of dina de-malkhuta dina does not apply when there is a binding halakhic ruling on the matter (Choshen Misphat 73, no.39).
 Responsa Divrei Chayyim, Choshen Misphat, no. 56.
 Prof. Nachum Rakover expanded on this issue in several books: "Ha-Haskamot li-Sefarim ki-Yesod li-Zekhut ha-Yotzerim," Sidrat Mechkarim u-Sekirot be-Mishpat ha-Ivri, 11, Jerusalem 5731; Zekhut ha-Yotzerim bi-Mekorot ha-Yehudiyim, Jerusalem 5751, pp. 123-443.
 Therefore, the Sages generally tried to explain that the ban is based on one of the principles mentioned above that anchors the publisher's rights in Halakha.
 Of course, when our Sages will, speedily and in our days, discuss the enactment of these ordinances, they will have to consider additional factors, some of which have not been mentioned here. Thus, for example, Rav Naftali Bar-Ilan notes that a person should be allowed to copy a book when it is clear that he would not have purchased it otherwise, because of the principle that "we compel in the instance of midat sedom" (Rav N. bar-Ilan, "Ha'atakat Sefarim o Kasetot," Techumin 7 , p. 367). Similarly, as was noted by the Tzitz Eliezer (vol. XVIII, no. 80), it is doubtful that in such a case the copier could be called "one who derives benefit" in the economic sense of the term.
 It is fitting here to cite the words of my revered teacher, HaRav Aharon Lichtenstein, shelita, at the end of the collection of his shiurim on the Ramban's Kuntrus Dinei de-Garmi. HaRav Lichtenstein mentions there the need in our day to add enactments dealing with indirect damages: "The desire lies before us, the authority exists, and the eyes are lifted up in waiting. If the great halakhic authorities manage to enact ordinances in the area under discussion, they will succeed in sealing a serious social breach, and at the same time they will succeed in raising the prestige of the Torah" (Shiurei ha-Rav Aharon Lichtenstein, Dina de-Garmi, Alon Shevut, 5760, p. 200).