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. Now, this is part 7.
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.
