Tzipiyah.com

Rabbinical Legislation

According to Talmudic Law, Rabbis have the power to legislate what is known as Takanot. As we have seen, there have been many bans against copying published by rabbis at the preface of books, in the Haskamot. Some have suggested that these bans can be seen as a new legislation enacted by the rabbis to protect rights of intellectual property. However, it is important to note that the formulation of those bans were not in the language of legislations but rather as a warning towards those who would decide to copy these books. For this reason, as we have seen, most people interpret these bans as expressing a warning against already existing prohibitions linked to copying. Also, even if these bans were to be rabbinic legislations, there is no reason to believe they have any legal effect other than to the book in which they are written.

Rabbi Moshe Sofer[1] writes that there is a prohibition which predates the bans, but needed to be reaffirmed in each new book since each publication has different properties. By reaffirming the prohibition in the Haskamot, the rabbis were ensuring that this legislation would apply to these specific books.

However, even through the wider approach of Rabbi Sofer, such a rabbinic legislation would not apply in cases which differed from the original intent of the prohibition. Therefore, it is unclear if it would be valid in cases not dealing with the publication of books. The limitation of this approach is due to the fact that the rabbinical authorities have not yet created a full system of protection of intellectual property rights. Rather, this approach uses a single ban in order to try and recreate a full and complex area of law.

——————————————————

[1] Supra at Note 5.