ASSEMBLING A SCHOOL PRAYERBOOK

QUESTION:

Our congregation is planning to assemble a prayerbook for a children’s service for the High Holidays. The congregation is not in a financial position to buy a sufficient number of children’s prayerbooks which have already been published. It is therefore planning to collect prayers from various sources and mimeograph them as a prayerbook for the use of the children for the holidays. Does this violate Jewish copyright laws (haskamoth)! (Asked by Rabbi Sheldon Ezring, Temple Sholom, New Milford, Connecticut.)

ANSWER:

WHAT IS PLANNED here is to collect prayers from various books and thus assemble a prayerbook for children which will be mimeographed and made available for the young people’s High Holiday services. The question is asked on the basis of the responsum on copyright in Contemporary Reform Responsa, pp. 245 ff., and it amounts to this: Are the authors of the books from which these prayers are to be culled being treated unjustly, since they are deprived of possible profits which they would have if, for example, a hundred books were bought?

The Jewish laws of copyright h askama) did not apply equally to all types of books. While there is no explicit distinction in the legal literature (as far as I know) between one type of book and another as to the right to have a haskama, nevertheless in practice there is such a distinction. Only such books about which the authors could properly claim that they were the product of their own mind would get a haskama. For example, if a man publishes a book of Chiddushim on certain Talmudic themes or, let us say, a book of responsa to questions that had been asked him, or a new arrangement of Jewish law in the form of a code, all such books can be properly described as the product of the author’s mind for which he has the right to be financially protected (generally for ten years). Even if the book that is published may be considered to be in the public domain, such as the Talmud, it may receive a haskama. The printing firm in Slavita was given copyright by the rabbis for ten years. And the great dispute that followed the attempt of publishers in Vilna to publish an edition of the Talmud before the ten years were up indicates that there was a special reason for this copyright, although the Talmud is public Jewish property. It was the fact that a vast expense was incurred in the publishing of the Talmud, and it was for this that the publisher deserved to be protected. Unless a publisher got protection after so large an expenditure, then neither he nor other publishers would be likely to publish the Talmud, and the Jewish community would be seriously hampered in its studies. This is the argument made by Moses Sofer in his responsa, Choshen Mishpot #41.

However, even for such original books which have had and deserve copyright (haskama), it has now become a widespread practice for Orthodox rabbis to have these books (by older authors) reproduced by photo-process. This reproduction is not necessarily or at all for the use of their own schools or yeshivos, but simply for public sale. Such photographing and selling of books of older authors is now a regular, modern business procedure by rabbis unrelated to the older authors. They are simply reproducing these older books for personal profit. Evidently, whatever haskamoth the older books had are now deemed to be expired.

So in the case of your congregation’s intention, some consideration must be given to the age of the books from which the material is to be taken. If the book is, let us say, ten years old or more (which is the usual duration of a haskama copyright), we may assume that the author has received his due profit, and we may then freely make a mimeograph of some of the material in it. For this there is ample precedent in the actual practice of many contemporary Orthodox rabbis.

A prayerbook, however, is in a different status from other books, such as Chiddushim or responsa. As far as I know, a prayerbook never received a haskama preventing other publishers from publishing the prayerbook before the date had passed. There is only one exception of which I know in which a prayerbook had a haskama, and that haskama was issued by the premier Talmudic authority, Phineas Halevi Horowitz of Frankfurt (1731-1805). This haskama was given to protect the Machzorim edited by Wolf Heidenheim. But actually it was not given for the prayers themselves—which are, as we might say, in the public domain—but for the remarkably useful commentary made by Heidenheim, explaining the meaning and the sources of the phrases used in the Piyyutim . That commentary was the personal creation of Wolf Heidenheim and fully merited copyright protection. But even so, other publishers in Sulzbach and Vienna felt that they were entitled to publish these Machzorim , even with the commentary of Heidenheim. Whether or not these publishers are to be deemed “pirates” revolves around the question of their right to republish the commentary itself, but if they had published a prayerbook without the commentary, there is no question at all that they had the full right to do so.

As a matter of historical fact, most of the prayerbooks (especially the earlier ones) published in New York for the American Jewish public were simply reprints of prayerbooks printed in Warsaw, Vilna, etc., brought to America by the immigrants. No one, as far as I know, ever raised any objection to this complete republication.

However, if the congregation would be collecting original comments on the history of the prayerbook or some special commentary on the prayerbook, there will be a question whether or not permission of the author or publisher should be asked for. But as for the traditional Hebrew prayers themselves, they belong to all of Israel. So does the large literature of Judeo-German and Yiddish prayers in the Techinos and similar works. These were written by various authors in comparatively recent centuries. Such books of private devotion were never protected by a “copyright.” They have been reprinted at will many times. In fact, almost from the very beginning of this devotional literature (Techinos), there is never a statement of authorship. Clearly, the author of the prayers wrote them with the hope that they would be used by all of Israel.

However, it must be understood that the situation is different with regard to non-Orthodox prayerbooks. These contain new materials, original prayers, creative reworking of older prayers, and often a radical rearrangement of the liturgical structure. Such prayerbooks are to a large extent the product of its author, be it an individual or the committee of a parent organization. As such the prayerbook may well be copyrighted, or even if not formally copyrighted, may justly be considered the property of the author. Therefore, while the intention of the congregation is a worthy one, it being a mitzvah to train children in prayer (b. Succah 47a, Yore Deah 245:5), nevertheless the congregation must not violate the copyright laws and may not reprint parts of a modern prayerbook without express permission of the author who wrote it or the organization to whom it belongs.