COPYRIGHTING BOOKS

QUESTION:

Is it right, according to Jewish legal tradition, to photostat or Xerox and sell books that have been published by other publishers? (Asked by Bernard Scharistein, KTAV Publishing House, New York.)

ANSWER:

WHAT CAN PROPERLY be called copyright to a publisher was in the form of Haskamos printed by the rabbi of the city or the district. These Haskamos actually began with the age of printing when, you might say, publishing in the modern sense began. How it started is not quite clear. Ludwig Blau, in a brief but important statement in the old Jewish Quarterly Review, 1898, page 175, believes that it started with the Pope. (By the way, Eisenstein, in the Ozar Yisroel, has a fine article on the subject of Haskama, but gives a wrong reference at the end of the article, i.e., JQR, 1897; it should be 1898.)

The purpose of the Haskama was twofold. The first was to give an author permission to print. This was to avoid the danger of unworthy books being broadcast. This type of Haskama, therefore, was equivalent to the Catholic imprimatur, i.e., that the books deserve printing.

The second purpose of the Haskama was to protect the publisher against his book being pirated by other printers. Usually the rabbi or rabbis forbade any other printer to reprint the book for ten years from the date of the original publication. Sometimes it was for three years and occasionally for more than ten years, but ten years was the usual period of protection to a publisher. In other words, this second purpose of the Haskama was not imprimatur, but actually copyright.

Generally Haskamos for an important or an expensive book were given by three or four rabbis. Wolf Heidenheim (1757-1832) who made and published the first scientific edition of the Machzor and its Piutim (the well known Roedelheim Machzor) received copyright {Haskamos) from the rabbis of Amsterdam, Rotterdam, London and Frankfurt. In spite of these Haskamos, a publisher in Vienna announced that he would republish this Machzor together with Heidenheim’s commentary. Whereupon Phineas Halevi Horowitz, the Chief Rabbi of Frankfurt, issued a proclamation addressed not only to the pirating publisher, but to the entire Jewish community everywhere. This proclamation in Hebrew and Judeo-German is published at the back of the 1832 edition of Heidenheim’s Machzor and reads in part as follows:

Warning to our brethren of the house of Israel to keep their hands away from the Machzorim being printed in Vienna … It is commanded in the name of our rabbi that a man has declared in open print that he will reprint the Machzorim of Wolf Heidenheim, to protect which our rabbi had given an Haskama and Cherem, that they are not to be republished (by any other publisher) for twenty-five years . . . and therefore the rabbi now proclaims that no one small republish these Machzorim and also that no man shall subscribe for them, and also (this in large type) whoever shall buy them shall be subject to the anathema (Cherem) and be punished as was Achan (who violated the Cherem proclaimed by Joshua, Chapter 9).

From this proclamation published by one of the leading rabbinical authorities of the early nineteenth century, it would seem that the sin of violating the copyright Cherem applies even to the people who buy (and presumably read) the pirated book.

The great outburst of responsa on the question of copyright Haskama occurred at the beginning of the nineteenth century with regard to the Talmud printed in Slavita. The publishers in Slavita received a Haskama for ten years. Before the ten years were over, other publishers in Vilna and Grodno started to publish the Talmud. The Vilna and Grodno publishers justified their right to publish, even though the ten years’ copyright of Slavita was not yet over, by arguing that the Slavita publisher had sold out his entire stock and, therefore, although the ten years had not passed, the purpose of the Haskama was fulfilled, his investment and his labor were amply repaid.

Of all the responsa on this cause celebre, the clearest is that by Moses Sofer, in his responsa Choshen Mishpot 41, in which he gives clearly the reason for protecting a publisher; namely, that if he were not protected, he would never invest his money and labor, and thus the study of the Torah would be more difficult for lack of availability of books.

Now the question might be asked: While it is clear that a second publisher is forbidden to republish during the lifetime of the first publisher’s Haskama, suppose, however, the first publisher published without a Haskama; is there any prohibition to a second publisher to republish? The answer must be “yes,” it would be forbidden, if not legally, at least morally. The rabbinical Haskama did not create the rights of the first publisher; it merely recognized them. Therefore the money and labor invested by the first publisher gives him an inherent right to be protected against piracy, even if he has no formal Haskama.

But, alas, the rabbis did not have the powers of the state to punish legally the infringement of copyright. They made up for their lack of enforcing power by very stern language of threat (of Divine punishment). Unfortunately, that did not always help. Books were often pirated whether they had Haskama or not.

It is certainly morally wrong to destroy the invest-ment in money, time and labor of a publisher by pirating his book. The rabbis attempted to prevent this sin by their Haskamos, but were not always successful.

Two further questions, nowadays, are involved in this matter. One: Would the following be considered an infringement of the Jewish ethics governing copyrights? Suppose a school Xeroxes a book, not for the purpose of selling the Xerox copies (which would obviously be a violation of the copyright) but merely for the purpose of use by the students in the school. Since the Xeroxed books are not sold, is this action to be deemed unethical? The second question involved is whether the laws of the state governing copyrights, have any validity in Jewish law according to the principle of dina d’malchusa dina (“the law of the government is deemed valid by Jewish law”).

First, the question of whether Xeroxing not for sale is to be deemed a violation of Jewish ethics governing copyrights: Of course, the old Haskamos speak only of the prohibition of printing (D ‘fuss) for a period generally of ten years, in order to protect the original publisher and to encourage men to go into the publishing business so that books be available for students. Now, if a second publisher would plan to pirate the book, he must set up type and buy the paper, etc. Since he must go to considerable expense, then the fact that there is a rabbinical copyright prohibiting the piracy, this would-be pirate was often discouraged and gave up his plans. But now with the modern method of Xeroxing, a book can be so easily copied (without setting type, etc.) that the whole process of book piracy has become very tempting.

To answer the question whether such Xeroxing is to be deemed “piracy,” one can only judge by the intent of the law (i.e., the ethics implied in the Haskamos) . The Haskama was clearly for the purpose of protecting the original publisher, to give him a chance to make an adequate profit, so that people would find it worth their while to enter into the publishing business, and thus books would be available for students. Judging by the basic purpose of the copyright, this Xeroxing certainly is a violation. If, for example, a large school is involved and three hundred copies have been Xeroxed, the author and the publisher have certainly been subjected to considerable potential loss. Three hundred fewer copies are sold. This surely is a violation of the intent of the Haskamos.

Of course, the situation involved could be still more definitely answered if there were a law against Xeroxing large numbers of a book without permission of the publisher. It may well be that the copyright laws have not yet taken cognizance of the modern easy way to book piracy. But let us say that a bill will be introduced in Congress and a law passed preventing largescale copying of a book without permission of the publisher or the author. One is inclined to think that such laws already exist because many of the copyright statements back of the title page prohibit the copying of the book or parts of it by any method without permission. The question which concerns us is whether these laws, those already in existence and those that will be passed governing Xerox copying, are to be deemed valid in Jewish law by the principle of dina d’malchusa dina (first enunciated by R. Samuel in Gittin 10b).

The validity in Jewish law of the principle of dina d’malchusa dina is subject to certain definite restrictions. First of all, it never applies to ritual or spiritual laws. If, for example, a government would prohibit shechita (as, indeed, had frequently happened) we are not bound to accept that government decree, but should resist it as much as possible. The government decree is valid in Jewish law only in civil law, matters of money, contracts, etc. So in general it would apply to the financial rights of the publisher and author to be prevented from unfair piracy.

But it is important to note that even though in general the principle of dina d’malchusa dina applies to civil law, certain rabbinical authorities have restricted its applicability even further. Some authorities say that it applies only in civil matters of public concern such as taxes, the roads, law and order, etc., but does not apply to the private sector even in civil matters. Thus, according to this opinion, a private debt between two people would be governed by Jewish law and not by public law, since it is not a matter of public concern.

But this restricting of the principle to civil laws in the public domain is contraverted by great authorities as, for example, Solomon Ben Adret, the great rabbi of Spain in the thirteenth century. He discusses this matter in his responsa (Volume II, #356) and says that the secular government has the right (i.e., according to Jewish law) to pass laws, not only in the public sector, but even in the private sector “in order that the people should not come into quarrels and bitter disputes.” In other words, Rashba anticipates the purpose of law as given in the prologue of the Constitution of the United States, “to insure domestic tranquility.” This opinion of the great Spanish rabbi is echoed by the great Ashkenazic scholar, Solomon Luria. In his Yam Shel Shlomo (Baba Kamma 6:14) he says that if the government did not pass laws governing private debts, etc., general social chaos would ensue. And, in fact, the various decisions of Isserles in the Shulchan Aruch reflect this point of view, namely, that the laws apply even in private civil matters. See Isserles, Choshen Mishpot, 3:4, 68:1, 74:7, 162:1, etc.

The situation is, therefore, clear. The ethics of the Jewish copyright Haskama means to protect the author and the publisher, and thus encourage them to continue their work. The technique of the pirate republishing is immaterial. If by any technique the pub Usher and the author are deprived of the sale of hundreds of copies, the intent of the Haskama is definitely violated. Furthermore, if the public law prevents, or will in the future prevent, such unauthorized republication, even if the results are used in a school and not for sale, then that public law will be applicable in Jewish life by the principle of dina d’malchusa dina. This piracy cannot be deemed a purely private matter be tween individuals, with regard to which some authorities believe the law of dina d’malchusa does not apply. It is certainly a matter of public order and decency and, besides, most of the later authorities agree that even if this situation be deemed a private one involving two individuals, nevertheless, the law of dina applies.

I suppose it would not be considered worthwhile discussing the action of one poor scholar who copies a book just once for his own use, as to whether this would be prohibited. But there is no question that large-scale copying for the use of a school, for example, is definitely against Jewish religious ethics for the reasons mentioned above.