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.
Technological advancements have constantly challenged the relevance of legal systems to the modern world. With each technological advancement come new legal problems which had not been addressed by previous generations of legislators and legal scholars. For this reason, legal systems are in constant evolution. However, it is not always simple to bring in previously foreign concepts into an already existing legal system without sacrificing its coherence.
With the invention of the printing press, people now had the possibility of copying works in big numbers. This new reality introduced the question of intellectual property in all major legal system. Each legal system had to grapple with the difficulty of introducing this new and previously non existing legal concept. This was especially hard in areas governed by the codified system of Civil Law in which judges can only play a minor role to assist the evolution of the law and new concepts are only introduced through new legislation. If this reality proved difficult for such systems, then, a fortiori, one could expect it to be even more difficult for the normative system of Talmudic Law where the law is considered divine. Can a new concept be introduced into a divine set of rules? Is it possible for human beings to legislate a completely foreign concept into normative Talmudic law?
This work will deal primarily with the various attempts at introducing the concept of intellectual property within the framework of Talmudic Law. We will analyze the legal positions of different authorities on the subjects and the different approaches each took to integrate this subject into Talmudic Law as well as the practical differences which arise from their choice of approach.
Conflicting Perspectives on Legal Innovations
In order to properly understand the reasoning of the various scholars, we must first define their frame of mind properly participate in their thought process. There are two ways one can interpret the silence of Halacha to the concept of intellectual property. On the one hand, one can argue that the reason for this omission is simply the produce of the time period in which these issues arise. Since intellectual property was mostly irrelevant until the appearance of tools which facilitate copying, one can argue that it was simply not necessary for Halacha to discuss such issues before that time. According to this approach, it is quite possible that Talmudic Law would have integrated the concept of intellectual property if it was relevant in the time of the Talmud. On the other hand, some might argue that the urge to integrate intellectual property into Halacha is simply through the influence of other legal systems, based on non-Jewish values, and does not have its place in the normative system of Jewish Law. By omitting intellectual property, Halacha was purposely giving the message that such principle is not important in the eyes of Jewish Law.
Both of these approaches were taken by the various sages which grappled with the issue of intellectual property. The first approach was, for example, adopted by Rabbi Shaoul Netanzon in his responsa “Shoel U’Meshiv” in which he writes:
It is obvious that when an author prints a new book and merits that his words are accepted by the world, he has rights to it forever. Regardless, if you print something new or develop a new technique, someone else is not permitted to use it without permission. And it is known that Rabbi Abraham Jacob of Harobshob, who performed arithmetic with a machine all his life received compensation from the Kierow (government) in Warsaw. And our complete Torah should not be like their meaningless conversations, and this is a matter that the intellect rejects, and it is a regular occurrence that the printer of a composition retains the rights.[1]
These comments of Rabbi Shaoul Netanzon are not legal in nature but rather philosophical. Yet, they have strong legal ramifications. To him, it is unthinkable that Halacha would not be able to give the rights of intellectual property since this would be an immoral position and such a position cannot be espoused by Jewish Law. Therefore, his approach will lead him towards finding a way to coherently integrate this concept into the system of Jewish Law.
While most of the Jewish scholars have taken Rabbi Netanzon’s approach[2], some have approached the issue of intellectual property as a foreign concept which should not be integrated into Jewish Law. Rabbi Shmuel David Munk argued that intellectual property was nothing more than an error committed by the nations which came from the “politeness of the gentile nations”[3]. He saw no value in integrating such concepts in Jewish Law and even saw it as an attempt to change Jewish Law to match the warped moral values of the non-Jewish world. This approach is based on a strict interpretation of Jewish Law and a disdain for legal activism and evolution. This very conservative approach would lead those who espouse this view to refuse to introduce any new concept into the Halachic framework, including intellectual property.
Therefore, there are two distinct conceptual approaches to the modern question of intellectual property which have direct legal consequences. Rabbi Munk’s approach would lead to a hasty conclusion against the integration of intellectual property in Jewish Law. Since most scholars have followed Rabbi Netanzon’s approach, our analysis will be based on his approach.
[1] Rabbi Shaoul Neanzon, Shoel U’Meshiv, Volume 1, at Siman 40.
[2] Rabbi Chaim Navon, “Copyright Law”, online: VBM
[3] Rabbi Shmuel David Munk, Peat Sade’ha Responsa, at Siman 158.
