Intellectual Property Law in Halacha - Part 2

April 14, 2008 · Filed Under Halachic Discussion ·

This is a long essay I wrote that might be of interest to you. It analyzes the place of Intellectual Property (and Copyright Law) in Halacha and ends with a discussion of relevant questions such as Downloading Music and Burning CDs. I will be posting it part by part. It’s quite long but will be rewarding to those who follow it. This was Part 1. Now, this is part 2.

History of Intellectual Property in Jewish Law

The first appearance of principles related to intellectual property came in the form of Rabbanic Approbations (Haskamot). These Haskamot served two purposes. First, they served as a “seal of approval” as to the validity of the person’s work. Second, they would serve as a ban against publishing another version of this work.[1] According to Rabbi Moshe Sofer (Chatam Sofer)[2], the first ban which served as a prototype to all future bans was written by Rabbi Moshe Isserlis (the Rama)[3]. The issue at stake was that after a certain edition of the Mishnei Torah, a work by Maimonides, came out from a first publisher, a second publisher brought out an edition which was priced much lower. The Rama argued that this went against the principles of undue competition, taking an approach to the protection of intellectual property rights which we will be analyzing in details further on. This was the haskama which started a wave of haskamot for the works of different authors.

The Chatam Sofer[4] argues that although the Rama mentioned the concept of undue competition as the reason for the ban, the real reason is that if publishing was not controlled, many publishers would retire from this business since it would not be profitable and this would hurt the publishing of religious texts. The bans were thus, in his opinion, used as a protection for the study of Torah. We can see clearly from the Chatam Sofer’s argument that, although these haskamot were later used as a source of rights for intellectual property in Halacha, the intent of the Rabbis at this time was not to grant rights to authors but rather to encourage the publishing of religious texts. This, however, helped paint the historical background through which the rabbis started discussing the integration of intellectual property into halacha.

NOTE: The footnotes are a bit off (especially the “Supras”) because I am splitting this essay in many parts, but I will list a full bibliography at the end of the paper.
[1] Rabbi Israel Shneider, “Jewish Law and Copyright” (1991) JHCS No. XXI.

[2] Rabbi Moshe Sofer, Responsa Chatam Sofer, Choshen Mishpat no. 41.

[3] Rabbi Moshe Isserles, Responsa, no. 10.

[4] Supra note 5 at Vol.6, no.57.

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