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Copyright in Halakha (1)

Rav Chaim Navon






This week's shiur is being sponsored by Mr. and Mrs. Dov Weinstein.






Rav Chaim Navon



Copyright is a set of exclusive rights that regulate the use of a particular expression of an idea or information. The problem of copyright is a relatively new problem. Before the invention of the printing press, the issue of copyright did not exist, because in the absence of the technical ability to mass-produce a work, copyright has no economic value. With the invention of the printing press, the issue erupted and demanded an immediate answer. Authors and especially publishers demanded exclusive rights over the books that they published. In the era of printing, publishing expenses also soared, and in order to ensure for himself a fair profit, a publisher had to be sure that his books would not be copied.


At first, copyright laws related to the content of the work. A publisher would demand exclusive rights over the content of a book, and try to prevent his competitors from republishing it. In the modern period, we are no longer dealing exclusively with copying the content of a work, but also with the wholesale copying of the book in the form that it had been originally published. With photo offsetting it is possible to republish a book precisely as it had been published the first time, at a minimal cost. The situation is even more serious regarding audiotapes and discs containing music, computer programs and the like. Today the ability to copy a work is no longer limited to professionals, and with simple household equipment it is possible to copy books, tapes and discs. We see then that we are dealing with an exceedingly urgent and current issue.


Halakhic authorities have been addressing the question of copyright from the time that it turned into a current issue. In this article we shall try to examine their attitude to authors' rights, and their attempt to formulate clear laws in this new field. As stated above, during the period of Chazal and the Rishonim the issue of copyright was irrelevant, and therefore we would not expect to find explicit rulings in Chazal on the topic, just as we would not expect to find explicit rulings on the prescribed times for prayer on the moon. It fell upon the modern authorities to search the halakhic sources for principles relevant to the new issue under discussion, and to formulate binding rulings based upon them. In this shiur we shall try to clarify the various principles upon which our authorities have based their attitudes towards the issue of authors' rights and copyright law.[1]




            It seems that the first authority to deal at length with the issue of authors' rights and copyright law in its modern sense was the Rema (R. Moshe Isserles) in his Responsa (no. 10). The Rema comes to protect the rights of Maharam Padua, who was a partner in the printing of the Rambam's Mishneh Torah, and to forbid the purchase of a competing edition of the work. The primary basis for the Rema's ruling is the law of encroaching upon another person's livelihood ("yored le-omanut chavero"; Bava Batra 21b). The Rema concludes from the talmudic discussion that a person is forbidden to encroach upon a person's livelihood, when this will cause him definite damage ("bari hezeka"). The Rema argues that for this reason it is forbidden to compete with a publisher and republish the same book that he had published, thus diminishing his profits:


Thus, we see before us that according to our law, the second publisher may not publish it at all, and the aforementioned Gaon could have prevented him…. For in a case where the damage is definite… all agree that the law is in accordance with Rav Huna…. If so, in the case under discussion the damage is also definite, for the second publisher announced that he would sell each volume at one zahuv less than the Gaon's [price]. Who would see this and not come and buy from him? And he can lower the price, because he is among the rich of the land. (Responsa ha-Rema, no. 10).


            This principle appears in countless other responsa and approbations to books.[2] It was the Chatam Sofer in particular who in several of his responsa (Choshen Mishpat, nos. 41, 79) establishes the principles of encroaching upon another person's livelihood and professional trespass (hasagat gevul) as the foundation of authors' rights.


            As was noted by Rav Ezra Batzri, however, even if we take the factor of hasagat gevul into consideration, it is not uniquely connected to the issue of copyright and authors' rights.[3] The concepts of encroachment and trespass do not at all relate to the special rights that a person has to that which he has created. These concepts protect a person's right to practice a vocation without having to suffer from aggressive competition, whether he is a  baker, a construction worker, a businessman or a scribe.


Thus, the attempt to apply the laws of encroaching upon another person's livelihood to the issue of copyright creates certain gaps. The law of encroaching upon another person's livelihood protects the livelihood of people working in the various professions, and moderates competition in the labor market, but nevertheless it permits a certain degree of dynamism and a controlled measure of competition. The criteria of encroachment do not take authors' rights into account, but rather the harm that will come to the first craftsman, versus the livelihood of the second craftsman, and the benefit that free competition will bring to the community of consumers.


Indeed, R. Mordekhai Banet, in Responsa Parashat Mordekhai (Choshen Mishpat, no. 7), rejects the Rema's view in his responsa, and notes some of the weak points in the attempt to apply the laws of hasagat gevul to authors' rights. I shall discuss here one of his strictures. According to the plain sense of the talmudic passage and major codes, the laws of encroachment only permit a craftsman to restrain a fellow craftsman from setting up a competing business, if the latter resides in another town and wishes to encroach upon the territory of the former and set up his business in his town. R. Mordekhai Banet notes that a craftsman cannot impose any restraints upon a fellow craftsman residing in a different town and not encroaching upon his territory. How then can one publisher forbid publishers living in a different town from engaging in their craft? It may be added that in general a craftsman can also not limit the rights of a fellow townsman from competing against him in the same craft.[4]


            The clash between the personal interests of the first craftsman, on the one hand, and the interests of the competing craftsman and the public interest, on the other, finds resolution in a delicate balance that expresses itself in various limitations, but not in a sweeping prohibition. The limitations of place of residence, which are very relevant in regular cases of encroachment, seem to be foreign and inappropriate when dealing with authors' rights.


            Some have tried to argue that when dealing with authors' rights, we should not consider geographical limitations, but rather we should apply the laws of encroachment even when the competitors live in the same town, etc., for in the case under discussion the commercial competition is not limited to the boundaries of the city in which the publisher operates, and the entire region is regarded as a single city for this purpose.[5] On the face of it, this argument should be rejected, for if the entire region is regarded as one city regarding book publishing, surely the law is that the members of a particular city cannot prevent each other from engaging in economic activity based on the claim of encroachment. The laws of encroachment only apply to outsiders who wish to come and establish a business in a particular city. This being the case, if we define the entire region as a single city for the purpose of book publishing, there would be no basis for invoking the prohibition of encroachment in this context.


            Be this as it may, it would seem that even if we accept the proposed answer, we still haven't resolved the problems arising from the application of the laws of encroachment to the matter at hand. For example, there are those who have emphasized that the prohibitions of trespass and encroachment do not apply to "heavenly matters" (melekhet shamayim), and so they cannot be applied to the printing of religious books.[6] Another problem relates to the ability to pass down the rights to a work as an inheritance, for it is difficult to give this validity based on the concept of encroachment.


            The halakhic tools provided by the law of encroachment only partially answer the problems posed by the issue of authors' rights. The law of encroachment does not recognize the uniqueness of the case under discussion, and relates to an author or publisher, as it does to any other business, which is only entitled to protection against destructive competition. The laws of encroachment do not at all relate to the unique rights of a creator to his creation.




            Many authorities have tried to discuss authors' rights in the context of the laws imposing liability for benefit derived from another person's property. According to accepted Halakha, in a case where "this one benefits, but this one does not lose out" ("zeh neheneh ve-zeh lo chaser") the one who benefits is exempt from payment, but if "this one benefits, and this one loses out" ("zeh neheneh ve-zeh chaser"), the one who benefits is obligated to pay. That is to say, if a person benefits from another person's property, he only has to pay for that benefit if the owner of the property suffered a loss because the other person used it.


            The Noda bi-Yehuda introduced this legal principle into the discussion of the issue of authors' rights. The Noda bi-Yehuda (mahadura tinyana, Choshen Mishpat 24) discusses a person who hired a publisher to print a certain book, and that printer saved the typeset that he had prepared for that person in order to print part of the same book for his own benefit:


It would seen that he is obligated to pay him for his share… for here too he causes him a great loss, for had Shimon not printed these books, they would not be readily available, and buyers would jump on Reuven's books… But now that Shimon printed them, these books are readily available and cheap, and buyers who would buy from Reuven are not so easily found. And since he caused Reuven a loss with this, we roll onto him all that he benefited, according to his share, from the typesetting. (Noda bi-Yehuda, mahadura tinyana, Choshen Mishpat, no. 24)


            The Noda bi-Yehuda rules that the publisher is liable, because of "zeh neheneh ve-ze chaser," i.e., because he benefited at the other person's expense: the publisher benefited from the fact that he saved himself the expense of setting the type, and the other person suffered a loss because he had paid for the typesetting, and now less people will buy his books, owing to the competition. For this reason, the Noda bi-Yehuda obligates the publisher to pay his part of the expenses of the original typesetting.


            It is important to mention that this obligation is also not connected specifically to authors' rights. The plaintiff in this case does not base his claim on his rights to his work, but rather on the money that he invested from which another person benefited. Similarly, the defendant is not asked to return the profits that he had earned, but only to share the expenses of the typesetting, from which he had derived benefit.


            The Divrei Malkiel (III, no. 157) discusses a clear case of impairment of authors' rights:


Regarding the matter about which you wanted to know my opinion, with respect to a certain person who found a way to produce sweet smelling water, and he acquired a license for this from the medical board in Warsaw, and it is obvious that this required considerable toil and expense… And now a person living sixteen miles from him printed labels similar to those of the first person, and he also made the same water, and attached labels to it on which was written the name of the first person.


            We are dealing here with the case of a person who invented a certain commercial product, and also toiled to acquire a license to manufacture it, and then another person came and copied the first person's product and impersonated him, exploiting the license that he had received and his good reputation. The Divrei Malkiel notes a basic limitation on using the principle of "this one benefits and this one suffers a loss." In order to obligate the person who benefited to pay compensation, he must enjoy direct benefit from the article belonging to the other person:


On the face of it we can distinguish that there he benefits from the other person's property itself, but in our case he derives no benefit whatsoever from the other person's property. For the piece of paper that the government sent to inform him that he had been granted a license rests in its place. Only that it causes benefit to the other person, for because he prints labels that bear the name of the first person, he is not prevented from engaging in this business, and because the quality of the first person's merchandise is already well-known.


Later, however, the Divrei Mikhael rejects this understanding. In his conclusion, he argues that liability does not depend on direct benefit, and that indirect benefit suffices, and therefore in the case under discussion, the person who benefited can be obligated to pay, because he indirectly benefited from the governmental license belonging to the other person. It would seem, however, that even he requires a particular object that belongs to the first person, and from which the benefit is derived. The fact that first person invented the product does not suffice to give him rights to its production and distribution. His only grounds for suing the second person is that the latter indirectly benefited from the license owned by the first person, plus the fact that the second person's benefit caused the first person a loss. Without a doubt we are dealing with a very difficult line of reasoning: the second person is liable not for copying the first person's invention, and not for exploiting his reputation, but rather for indirectly benefiting from a certain document found in the first person's possession.


The Divrei Malkiel discusses liability for benefit, and notes another weak point in relying these laws to protect authors' rights. According to this approach, the most that we can do is obligate the second person to share the expenses incurred by the first person, but we cannot forbid him to copy the first person's work! In the case of the Noda bi-Yehuda we can forbid the second person from using the typeset belonging to the first person without his consent. But in a case where there is no direct benefit from a particular object, but only indirect benefit from the document granting a license, we cannot forbid the second person to derive indirect benefit. Even though an indirect relationship to an object belonging to another person suffices to obligate the other person to pay for the benefit that he derives from it, it does not suffice to allow the first person to forbid this benefit to the other person.


In the end the Divrei Malkiel concludes that at most the first person is permitted to publicize the fact that the products are not his, even if the government will punish the second person as a result. According to the Halakha, however, the first person has no right to prevent the second person from copying his products. The first person can merely demand that the second person share in his expenses.


As stated, the Divrei Malkiel assumes that a person can only become liable for the benefit that he derived when that benefit is derived (even indirectly) from an object belonging to another person. This understanding seriously limits the ability to use this principle with respect to authors' rights. It is, for example, doubtful whether one who copies a computer program from the internet can be regarded as deriving benefit from an article that belongs to the program's creator. To this we must add the second limitation that he presents, which is connected to the first. When there is no direct benefit from the article belonging to its creator, the creator cannot forbid its being copied, but only demand partial compensation for his expenses.


Rav Zalman Nechemya Goldberg paved a new path, arguing that it is possible to obligate a person to pay for benefit that he derived, even if he did not derive benefit even indirectly from an object belonging to another person. It suffices if he derives benefit from the fact that the other person had spent money.[7] In light of this understanding, he explains that in the case discussed by the Noda bi-Yehuda, the letters themselves do not belong to the first person, but nevertheless the second person is obligated to pay, because he benefited from the fact that the first person spent money to set the type:


… A person who benefits from money spent by another person, but not from the money itself, but rather that owing to the money that was spent benefit reached Shimon, he is obligated to pay. (ibid. p. 195)


            This revolutionary approach greatly expands the possibility to impose compensatory payments based on authors' rights. Rav Z.N. Goldberg's novel approach allows a person to sue for compensation even in a case where the copier did not derive direct benefit from something belonging to the original creator.[8]


            We saw above that the Divrei Malkiel set another serious limitation: He argued that we cannot forbid a person lekhatchila to copy another person's work, and that we can only obligate the copier to share the other person's expenses. Rav Z.N. Goldberg disagrees with this assertion as well. He writes that in any event it is forbidden lekhatchila to copy a cassette if the seller said or wrote that he does not permit copies to be made, because it is forbidden lekhatchila to do something without the original owner's permission (ibid. p. 205).[9] This is a novel idea that I have not found anywhere in the writings of the Rishonim or the Acharonim. It is also difficult to understand the rationale. Rav Goldberg explicitly relates to a case where the original owner sold the article with a full sale, unconditionally and without retaining any rights for himself. It is difficult to understand what right the seller retains with respect to an article that he has already sold to another person.


            If we accept Rav Goldberg's novel view, this considerably expands the possibility of effectively using the laws of benefit for the protection of authors' rights. There is, however, a fundamental lack of correspondence between these two realms, which remains even after all the expansions. Similar to our argument above regarding the laws of encroachment, the obligation to compensate for benefit derived is not connected in any fundamental manner to the rights that an author has to his work. The author's claim against the copier is not based on the rights that the author has to his work, but rather on the benefit that the copier derived from the author's financial investment, benefit that also diminishes the author's profits. According to all views, then, the author can at most sue the copier to share in his monetary expenses in the process of creating his work, for they constitute the monetary benefit derived by the copier. This is the money that the copier saved by not creating his own original work. But the author is not entitled to sue the copier for profits that he derived from the original author's work.


            In this shiur we surveyed the various attempts to clarify Halakha's stand on the issue of authors' rights, based on other halakhic realms in the context of monetary law. In the next shiur we shall deal with attempts to bestow direct and independent halakhic force to authors' rights, without having to build on concepts borrowed from other realms.


(Translated by David Strauss)


[1] Prof. Nachum Rakover, in his book dealing with this issue (Zekhut Yotzerim bi-Mekorot ha-Yehudiyyim, Jerusalem 5751) distinguishes between monetary rights and moral rights (pp. 14-15). A moral right is the right of an author or artist that his name should appear on the work, and his right to prevent alterations of his work. In this article, we shall limit the discussion to monetary rights, namely, the right of an author or artist to enjoy the fruits of his creation.

[2] Rakover (above, note 1), p. 130.

[3] Rav Ezra Batzri, "Zekhut Yotzerim," Techumin 6 (5745), p. 179.

[4] See Responsa Chavat Yair, no. 42; Responsa Chatam Sofer, V (Choshen Mishpat),no. 61.

[5] So writes R. Yaakov of Karlin in his Responsa Kehilat Ya'akov, Choshen Mishpat, no. 2. So also writes R. Avraham bar A.G., that all countries are like one city regarding book publishing (Rakover, above, note 1, pp. 187-188).

[6] See, for example, Responsa Tzemach Tzedek, Yoreh De'a, no. 195.

[7] Rav Zalman Nechemia Goldberg, "Ha'ataka mi-Kaseta le-Lo Reshut ha-Be'alim," Techumin 6 (5745).

[8] Rav Goldberg hangs this understanding on a disagreement among the Rishonim and the Posekim.

[9] Rav Goldberg also writes that if the seller explicitly stated that he is not selling the right to copy the cassette, but rather he retains that right for himself, and the buyer copied the cassette, the latter is regarded as a thief, and it is very possible that he is liable to pay as a thief (p. 207). Such a case, however, is exceedingly rare.

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