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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.

Nafka Mina – Practical Difference

In classical Talmudic study, after exposing the different approaches to a question, one of the most relevant questions asked is whether there is a Nafka Mina between the different approaches. The words Nafka Mina are literally translated from Aramaic to mean “coming out of”. The more common translation for these words is “practical difference”. After analyzing difference conceptual approaches, one must try to detect whether any practical differences come out of these approaches. In the rest of this paper, we will be analyzing different relevant Nafka Minas which arise from our analysis of the different approaches taken to integrate intellectual property into Talmudic Law and analyze how each practical case relates to the different approaches suggested.

Photocopies for a class

The first Nafka Mina we will analyze has already been dealt with by Rabbi Shmuel Wozner and Rabbi Yaakov Blau. The question at hand is to determine whether it is permissible, according to Jewish Law, to photocopy handouts from a book use in a class.
Rabbi Wozner[1] rules that this is permitted. On the other hand, Rabbi Yaakov Blau[2] argues that such an action would be forbidden under Jewish Law. Rabbi Israel Shneider[3] argues that their difference of opinion comes from their adherence to a different approach in integrating the concept of intellectual property into Halacha. Rabbi Wozner, he argues, relies on the principle of Dinei De’Malchuta Dina which implies the application of the current Civil Law. Since in the United States, the copyright act codified the doctrine of “fair use”, photocopying pages for a class would be allowed. However, if we were to take another approach, we might get to the same conclusion as Rabbi Blau.

According to the approaches based on the law of undue competition and the laws of enjoyment, such an action would be permissible since one could easily argue that the person receiving the photocopied handouts would not have bought the book anyways. Therefore, there has been no competition caused by the alleged infringement of intellectual property law and there has been no loss of enjoyment.

According to the approach based on property law, both Rabbi Goldberg’s and Rabbi Bar Ilan’s opinions would be difficult to apply in this general case since both of them seem to require a clear note forbidding photocopying the book. According to Rabbi Goldberg, such a note would ensure the retention of the right to photocopy during the sale. According to Rabbi Bar Ilan, such a note would ensure the sale was recognized as conditional to the agreement that no photocopies would be made from the book. In both cases, while a book without a note would not be protected, many books today are printed with notes warning against the copying of books for both Civil Law and Talmudic Law reasons. Such a note should be enough to make illegal the photocopying of books even for classroom purposes since the clause does not distinguish between different cases. The right of property of the owner of the book either does not include, or is conditional, to the fact he does not photocopy the book and therefore he has no right to make photocopies whatever the reason is.

According to the Custom of the Artists, the custom would not apply in this case since it deals with actions of an individual. Therefore, photocopying pages would be allowed.

According to Rabbinical Legislation, if Rabbi Moshe Sofer[4]’s opinion stands, there is a Takana prohibiting the copying of the books. The question, in this specific case, would be whether the scope of the Takana included photocopying for educational use. It is unlikely that such is the case.

Therefore, most of the approaches seem to suggest that the photocopying of a book for classroom purposes should be allowed. However, according to the approaches based on property law, if there is a note in the book indicating photocopying is not allowed, then it would not be allowed in any case. This is therefore one of the Nafka Minot between the different approaches we have seen.

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[1] Responsa Shevet Halevi, Volume 4, no. 202.

[2] Pitchei Choshen, “Laws of Theft and Fraud,” p. 287, note 27.

[3] Supra at Note 4.

[4] Supra note 45.

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.

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[1] Supra at Note 5.

Custom of the Artists

One of the sources of legal obligations, in Talmudic law, is called “the Custom of the Artists”. The Talmud[1] explains that an agreement between the members of a certain profession can become binding on these members. For example, the artists of a city may agree to divide their days of work between each other. Afterwards, if one was to break this agreement, he could be charged with a fine. The Talmud also explains that if there is an important person living in the city, his approval would be necessary to ratify this agreement.

The Divrei Chaim[2] used this principle in order to attribute the rights of intellectual property. He explained that there was a custom amongst publishers not to copy the work of others. He also explains that this was the original reason for the Haskamot which noted a prohibition on copying works. Since a custom requires the approval of an important person, the Haskamot served as proof of this approval.

The Parashat Mordechai[3] writes that even if this was true, it would not apply in our times. He explained that, in his time, the publishers were against the limitations imposed by intellectual property. Since such a custom must be sourced in the consent of the artists, it cannot exist where the artists are opposed to it.

The Tzemach Tzedek[4] agreed with the Parashat Mordechai and added that for a custom to be established, tacit acceptance is not enough. The artists need to expressly agree to the new custom through an announcement of some sort.

The applicability of this concept in our times is still unclear. Rabbi Ezra Batzri[5] writes that since all the publishers follow this custom, it is forbidden to copy the work of another publisher. However, Rabbi Chaim Navon[6] writes that such an approach is flawed for two reasons. He first notes that the objection of the Tzemach Tzedek still stands. It is unclear whether tacit acceptance is enough. Also, in our times, the true problem which needs to be legislated is with respect to the actions of publishers but rather individuals. While publishers mostly follow the principles of intellectual property, individuals don’t. It is unclear whether the “custom of the artists” can apply to individuals. Also, even if it could, its basis is in the consent of the parties involved. In this case, the individuals are definitely not expressing consent since they continue to infringe the principles of intellectual property by copying books, CDs and many other forms of intellectual property.

[1] Babylonian Talmud, Baba Batra, 8b.

[2] Divrei Chaim Responsa, Choshen Mishpat at Siman 56.

[3] Parashat Mordechai, Hoshen Mishpat, Siman 8.

[4] Tzemach Tzedek Responsa, Yoreh Deah, Siman 195.

[5] Supra at Note 22.

[6] Supra at Note 2.

Dinei DeMalchuta – The Law of the Land

All the previous approaches have tried to find concepts within Talmudic Law which can be used to protect the rights of intellectual property. While all these approaches have successfully protected part of those rights, they all had shortcomings. The following approaches differ from the previous ones. Unlike the previous ones, they will use Talmudic concepts which allow the integration of foreign concepts within Talmudic law. These approaches recognize that original Talmudic Law, substantively, does not protect the rights of intellectual property but still believe these rights are to be protected within Jewish Law through concepts which allow for the expansion of Talmudic Law.

The first of those approaches relies on the concept of Dinei Demalchuta Dina – The Law of the Kingdom is the Law. This principle was stated by Shmuel in many different places in the Talmud[1]. According to this principle, the laws enacted by governments are binding on the Jews living on their territory even when they differ from the laws of Torah. This law does not apply to all areas of law. If this was the case, there would be no more relevance to Jewish Law other than mere rituals[2]. For example, the Talmud states[3] that the law of the land does not apply in cases of Issur Veheter (that which is permitted and that which if forbidden- laws pertaining to daily living). Rather, it applies to monetary cases. Rabbi Baruch Ben Yitzchak[4] states in the name of the French Tosafists that this concept only applies to the right of a government to collect taxes. However, the Ramban[5] disagrees and explains that this principle can be applied to all fair legislation from the government. The Shach[6], a commentary on the Shulchan Aruch, rules according to the Ramban. In another place, he explained that the concept of Dinei Demalchuta Dina only applies in cases which are not already covered by Talmudic Law[7].

According to this conclusion, it seems the concept of Dinei Demalchuta Dina could be applied to questions of intellectual property. In fact, Rabbi Yitzchok Schmelkes[8] ruled explicitly that this concept can be applied in the case of intellectual property. Based on this principle, in the end of the 19th century, Rabbi Schmelkes prohibited the copying of original works. Rabbi Ezra Batzri[9] came to the same conclusion. According to this principle, the law of the land would also apply today and every Halachic question on intellectual property could be referred to the law of the land.

This reliance on the law of the land can be used to properly integrate the concept of intellectual property into Jewish Law. However, it is not satisfying to those who believe in the normative nature of Jewish Law and who see in intellectual property something which should be protected in traditional Jewish Law. The use of foreign concepts seems to indicate that incompleteness of Jewish Law[10]. Also, while this is not the subject of this paper, there are some unsolved problems with the use of Dine Demalchuta Dina. For example, it is unclear whether or not such a concept can apply in the State of Israel in which Jews now have sovereignty. While the scope of the protection for intellectual property rights is greater through this approach than any other approach previously seen, its use can be dissatisfying, and in some cases questionable.

[1] Babylonian Talmud, Baba Kama, 113a. and Baba Batra, 54b.and Nedarim, 28a. and Gittin, 20b.

[2] Hershel Shechter, “Dina De’Malchusa Dina” JHCS, Number 1.

[3] Babylonian Talmud, Gittin, 10b.

[4] Sefer HaTerumot. 46:8.

[5] Ibid.

[6] Yoreh Deah at Siman 165:8.

[7] Ibid at 73:39.

[8] Responsa, Yoreh Deah, Volume 2, no. 75.

[9] Supra at Note 22.

[10] Supra at Note 2.