Intellectual Property Law in Halacha - Part 10

August 20, 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 and Part 2 and Part 3, part 4, part 5, part 6, part 7, part 8, part 9. This is now part 10.

Photocopies of old books
A similar question arises with respect to books which are not on sale anymore. Since it is impossible to purchase these books, would it be permissible to photocopy a full copy of the book for personal use?
According to the approach based on Dinei DeMalchuta Dina, we need to defer the question to the law of the country in which the question applies. Such an action would also fall within the realm of the doctrine of fair use. Therefore, since it is legal under the law of the land, it would also be allowed under Talmudic Law.

According to the approach based on undue competition, an important question arises. On the one hand, the book is not for sale at this moment and therefore, such an action would not immediately create competition for the original publisher. However, if the publisher ever decides to start printing copies of the book again, a serious problem arises. In such a case, it is unclear whether or not it would be permissible to continue using those photocopied books.
A similar problem arises according to the approach based on the law of enjoyment. Once again, at the time at which the book is out of print, there is no problem since this falls within the realm of someone who enjoys something without causing any loss to the other. However, once the original publisher decides to print more copies of the book, it is once again unclear whether the copied version of the book can be used.
According to the approach based on property law, the reasoning would be similar to the one applied for the purpose of classroom use. Therefore, if there was a note written in the book forbidding its copying, it would suffice to make is illegal to copy.
The Custom of the Artists would not apply in this case since it deals with the actions of an individual. Also, the Rabbinical Legislation would, even according to Rabbi Moshe Sofer , not apply since it is unlikely that the scope of the original Rabbinical Ban applied to such a case.
Once again, we see that the conclusion reached on this issue varies according to the approach which is taken.

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