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. Now, this is part 3.
Undue Competition
After having analyzed the frame of mind of the scholars which dealt with Intellectual Property in Halacha as well as the historical background under which these issues came up, we will now explore the different approaches through which the scholars tried to integrate the rights of intellectual property into Jewish Law.
The first concept used was the one of undue competition. As we have seen, the first person to introduce this concept into the discussion of intellectual property was the Rama, although his approach was not geared directly towards intellectual property. The Talmud in the Tractate of Baba Batra introduces the concept of “Yored LeOmanut Chavero”, which can be paraphrased as undue competition[1]. The Talmud writes that “fishing nets must be kept away from a fish [which has been targeted by another fisherman] the full length of the fish's swim.” Even though the fish should in theory be considered common property, since the fisherman has already targeted them, other fishermen cannot target them because of undue competition. Until the fish is caught by the fisherman, it stays common property and he has no right of property towards the fish. Still, his business is protected under the commercial law of undue competition.
The Rama learned from the discussion in the Talmud that it is forbidden for someone to enter the business of another if he will definitely cause him harm. Through this approach, the Rama concluded that a publisher could not publish the same work as his competitor since it would definitely cause him harm.
This approach has also been taken by the Chatam Sofer in protecting ones right to his own creation:
If the case is so [that limited protection is granted] for printers of other texts [already in the public domain], so much more so for one who created a new entity... for example, the consummate scholar, Rabbi Wolf Heidenheim, who spent countless hours in the editing and translating of the piyutim... and why should others profit from his creativity? It [our case] can be compared to the case of the fisherman who by means of his actions caused the gathering of the fish... [2]
On the issue of the prohibition against taking the fish from competitors, Rabbi Meir, father of Rabbenu Tam explains that the reason for such prohibition is because the original fisherman baited his nets with dead fish and this attracted a lot of fish in the area. Therefore, by taking this fish, the other fishermen would be unfairly taking advantage of the first fisherman’s work.[3] The Chatam Sofer therefore explains that the concept of undue competition in halacha is based on a “labour argument”: one who works for something should be able to enjoy the fruits of his labour and not have it taken away by someone who did not work as much. Therefore, according to this approach, this law can apply to the rights of an author to his creation.
However, this approach is not substantively linked to the concept of intellectual property. This approach falls within the realm of Commercial Law rather than Property Law, and thus falls short of providing the right of property to the author of a book.
This approach also raises a difficulty in today’s world since it only applies when the commercial interest of a person is hurt by someone who opens a similar business in his own town. In the case of the fisherman, the geographic reality was of obvious importance. Some scholars have tried to argue that the whole world can be considered like a single town when it comes to the publishing of books since the commercial interest of the publisher is not limited to a certain town[4]. However, this argument is not coherent with another aspect of the law of undue competition. In Jewish Law, undue competition can only apply when someone comes in from another town and opens the same business which will cause the financial harm. If the whole world can be considered like a single town, how then can someone come from another town and be guilty of undue competition?[5] If the whole world is considered like a single town, the very concept of undue competition becomes irrelevant.
Some have also argued that undue competition cannot apply to holy work since in those cases the emphasis should be to provide the best possible service. The printing of religious texts can be considered one of those holy works[6]. Also, if competition law is used to protect one’s right to publish a certain book, it is unclear whether such a protection can be inherited while property can definitely be inherited.[7]
All these difficulties stem mainly from the fact that the use of competition law is ineffective in giving property rights to an individual. While this law can protect one’s commercial interest, it would not assign him property rights to his creation and he will not have all the benefits provided by property law.
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NOTE: The footnotes are a bit off (especially the "Supras") because I am splitting this essay in many parts, but I will list a full bibliography at the end of the paper.
[1] Babylonian Talmud, Baba Batra, 21b.
[2] Supra note 5 at Choshen Mishpat, no. 79.
[3] Babylonian Talmud, Kiddushin, 59a, Tosfot Commentary.
[4] Rabbi Yaacov MiKarlin, Kehillat Yaacov Responsa, Choshen Mishpat at Siman 2.
[5] Rabbi Chaim Navon, “Copyright Law”, online: VBM.
[6] Tzemach Tzedek Responsa, Yoreh Deah at Siman 195.[7] Supra note 12.
After having analyzed the frame of mind of the scholars which dealt with Intellectual Property in Halacha as well as the historical background under which these issues came up, we will now explore the different approaches through which the scholars tried to integrate the rights of intellectual property into Jewish Law.
The first concept used was the one of undue competition. As we have seen, the first person to introduce this concept into the discussion of intellectual property was the Rama, although his approach was not geared directly towards intellectual property. The Talmud in the Tractate of Baba Batra introduces the concept of “Yored LeOmanut Chavero”, which can be paraphrased as undue competition[1]. The Talmud writes that “fishing nets must be kept away from a fish [which has been targeted by another fisherman] the full length of the fish's swim.” Even though the fish should in theory be considered common property, since the fisherman has already targeted them, other fishermen cannot target them because of undue competition. Until the fish is caught by the fisherman, it stays common property and he has no right of property towards the fish. Still, his business is protected under the commercial law of undue competition.
The Rama learned from the discussion in the Talmud that it is forbidden for someone to enter the business of another if he will definitely cause him harm. Through this approach, the Rama concluded that a publisher could not publish the same work as his competitor since it would definitely cause him harm.
This approach has also been taken by the Chatam Sofer in protecting ones right to his own creation:
If the case is so [that limited protection is granted] for printers of other texts [already in the public domain], so much more so for one who created a new entity... for example, the consummate scholar, Rabbi Wolf Heidenheim, who spent countless hours in the editing and translating of the piyutim... and why should others profit from his creativity? It [our case] can be compared to the case of the fisherman who by means of his actions caused the gathering of the fish... [2]
On the issue of the prohibition against taking the fish from competitors, Rabbi Meir, father of Rabbenu Tam explains that the reason for such prohibition is because the original fisherman baited his nets with dead fish and this attracted a lot of fish in the area. Therefore, by taking this fish, the other fishermen would be unfairly taking advantage of the first fisherman’s work.[3] The Chatam Sofer therefore explains that the concept of undue competition in halacha is based on a “labour argument”: one who works for something should be able to enjoy the fruits of his labour and not have it taken away by someone who did not work as much. Therefore, according to this approach, this law can apply to the rights of an author to his creation.
However, this approach is not substantively linked to the concept of intellectual property. This approach falls within the realm of Commercial Law rather than Property Law, and thus falls short of providing the right of property to the author of a book.
This approach also raises a difficulty in today’s world since it only applies when the commercial interest of a person is hurt by someone who opens a similar business in his own town. In the case of the fisherman, the geographic reality was of obvious importance. Some scholars have tried to argue that the whole world can be considered like a single town when it comes to the publishing of books since the commercial interest of the publisher is not limited to a certain town[4]. However, this argument is not coherent with another aspect of the law of undue competition. In Jewish Law, undue competition can only apply when someone comes in from another town and opens the same business which will cause the financial harm. If the whole world can be considered like a single town, how then can someone come from another town and be guilty of undue competition?[5] If the whole world is considered like a single town, the very concept of undue competition becomes irrelevant.
Some have also argued that undue competition cannot apply to holy work since in those cases the emphasis should be to provide the best possible service. The printing of religious texts can be considered one of those holy works[6]. Also, if competition law is used to protect one’s right to publish a certain book, it is unclear whether such a protection can be inherited while property can definitely be inherited.[7]
All these difficulties stem mainly from the fact that the use of competition law is ineffective in giving property rights to an individual. While this law can protect one’s commercial interest, it would not assign him property rights to his creation and he will not have all the benefits provided by property law.
---------------------------------
NOTE: The footnotes are a bit off (especially the "Supras") because I am splitting this essay in many parts, but I will list a full bibliography at the end of the paper.
[1] Babylonian Talmud, Baba Batra, 21b.
[2] Supra note 5 at Choshen Mishpat, no. 79.
[3] Babylonian Talmud, Kiddushin, 59a, Tosfot Commentary.
[4] Rabbi Yaacov MiKarlin, Kehillat Yaacov Responsa, Choshen Mishpat at Siman 2.
[5] Rabbi Chaim Navon, “Copyright Law”, online: VBM
[6] Tzemach Tzedek Responsa, Yoreh Deah at Siman 195.
