Lesson # 284 • Theft of Intellectual Property
We are living in times where there are new intellectual ideas coming to the forefront almost every moment. Does halacha endeavor to keep up with this speedy advancement and to protect the inventors and developers of such new ideas?
Halacha recognizes theft of intellectual property, such as copyrights, patents, music cassettes, the work of artists, musicians, composers, or teachers, recorded lectures and concerts, and all other types of endeavors where an author, musician performer, writer, inventor, or any other person has contributed his intellect to create a work.
As stated in the Ethics of the Fathers (6:6) “Whoever repeats a thing in the name of the one who said it brings redemption to the world, as it is said: “and Esther said to the king in the name of Mordechai” (Esther 2:22). Conversely, the protection afforded by the law of the land will govern, since the laws of the land are generally not in conflict with halacha in this area. Most countries have laws protecting intellectual property and many countries belong to international conventions in these areas. Such laws are part of halacha, especially when they afford protection to authors of Torah works. Halacha recognizes that authors have the right to protection; their works cannot be republished.
However, while this protection was generally held to protect the author for the time that the first edition of the work was still being sold, there is also minority authority that the protection lasted for a reasonable time, such as the author’s lifetime and that of his heirs. This was especially so if the author did not live to have his work published and it was the heirs who published it. Most of the cases dealing with authors were about Torah publications and books. The author would be able to obtain from a prominent rabbi a ban in the book’s approbation which would usually state that the ban was in effect until the first edition was sold out or for a specific number of years. It was generally held that the failure to publish such ban with the work enabled anyone to copy the work. The ban was generally universal during that period. The purpose of the ban was to promote the publication of Torah works; without the ban, publishers would be reluctant to invest money in the publication. However, to make the ban permanent might stifle the dissemination of Torah. Halacha in each case sought to find an equitable solution between the rights of the author and his publisher and the rights of the publics to obtain Torah at the cheapest possible cost; the copier would have a much smaller investment since the type was already set and there were no royalties to the author. There are decisions in certain European communities that issued permanent edicts protecting the rights of the author and his publisher. Also one may not take the permission of the owner of a book or manuscript dealing with Torah subjects with the intent to return it after he studied the contents or made notes therefrom; the study of Torah, no matter how important, cannot be seen as giving one permission to take something that is not his. In such case he is guilty of both stealing and robbery.
There are instances where the author in publishing his work granted permission to anyone who wanted to reproduce the work to do so; in some instances the permission was granted to reproduce the work without any changes whatsoever. There is an instance where the work stated it could be reproduced, but that such person would've to donate a certain amount of money to libraries and yeshivas.
In the area of photocopying from books and other publications, halacha to a great extent also follows the law of the land. Halacha sees photocopying as stealing someone else’s product. This applies when the photocopier sells photocopies or else distributes them to students in large amounts so that the sale of the work is reduced. Even if there is not any payment made for the copies, they are still prohibited since the copier used it for the purpose of the reader not having to purchase the original, resulting in reduced sales of the work. Thus schools should not buy one copy and have photocopies made for all of the students. The restrictions against photocopying are sometimes included in the work itself, and if there is photocopying, the photocopier has violated the implied agreement with the author that he entered into when he bought the work. There is recent authority holding that if one does photocopy from a work to an extent that the author and/or publisher is deprived of income, the copier should compensate them or be in violation of the laws of stealing. The copier must make a self-appraisal whether he is guilt of stealing. Did he cause a loss to the author by photocopying and by not buying the book?
The question of copying also arises in copying of tapes of music and the like. There is authority that tapes cannot be copied without consent of the publisher and to do so is the equivalent of stealing. Thus if a lecturer states at the outset that he doe not want his lecture taped, then it is prohibited to tape the lecture. The lecturer may feel that he has not developed the subject matter sufficiently for it to be taped. If the lecturer does not make such a condition, then if he lecture is taped, there is authority that such tape may not be copied for others.
Regarding patents, the law of the land is to be followed as stated above. This is usually dispositive of the question of patent infringement. Halacha also recognizes that infringement is a tort that has remedies. There is the theft of an idea and there is also confusion in the public’s mind regarding the article. The confusion may arise if the infringer palms off the infringing article as being made by the inventor and it may damage the inventor’s reputation if the infringing article is inferior in quality to the infringed article. The infringer may have to pay the inventor and/or patent holder a share in the cost of development and registering the article infringed. There will also be an injunction issued by Beth Din to cease the infringement; Beth Din can also assess money damages.
The entire field of stealth of intellectual ideas in halacha is in a state of development, as it is in other fields of intellectual property, and the rabbis and Beth Dins of various communities are aware of the fast changes that are taking place in these areas. More often the rabbis are aware of these changes and recognize that creative ideas must be protected and those who steal such ideas are robbers.
[Ed. note: Similar issues are discussed concerning copying computer software.
The subject matter of this lesson is more fully discussed in volume IX chapters 348 of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: firstname.lastname@example.org and via website: www.israelbooks.com and at local Judaica bookstores. Questions to email@example.com