Wednesday, June 27, 2007

The Bible and Copyright

In a post a week ago, entitled “Christians and the Copyright Laws, Claude Mariottini,
a Professor at Northern Baptist Seminary in Illinois, discussed whether scripture provides the basis for a principled position on copyright, including this comment: “The tenth commandment is clear: ‘You shall not covet anything that belongs to your neighbor’ (Exodus 20:17).’ A song written by a Christian musician is his property and under current laws it is protected under intellectual property rights. To take by stealth what belongs to another person is theft. Christians should respect the rights and property of another Christian.”

The Biblical text cites is merely paraphrased (and the numbering of the passage in Christian numbering is frequently given as 20:14, not 20:17). The original Hebrew is found in Sefer Shemot (“Book of Names”), Parsha Yitro (Yitro is Moses’ father-in-law, known to Christians as Jethro, and who in this section recommends that Moses appoint judges rather than wear himself by being the sole “decider”):






לֹא תַחְמֹד, בֵּית רֵעֶךָ; {ס} לֹא-תַחְמֹד אֵשֶׁת רֵעֶךָ, וְעַבְדּוֹ וַאֲמָתוֹ וְשׁוֹרוֹ וַחֲמֹרוֹ, וְכֹל, אֲשֶׁר לְרֵעֶךָ






One translation of the original is: “Do not cover your neighbor’s house. Do not cover your neighbor’s wife, his slave, his maid, his ox, his donkey, or anything else that belongs to your neighbor.” Works of authorship aren’t in the list (or in the later, repetition of the commandments in Sefer Devarim (“Book of Words”) – Deuteronomy).

In Judaism, a different source is looked to adress copyright issues, hassagut gevul ("infringement of boundary"), a form of trespass originally, and found in Sefer Devarim, Parsha Shoftim (19:14), which admonishes: “Do not move back the boundary of your neighbor.” See generally, The Principles of Jewish Law 344–345 (Menachem Elon ed., 1975, Encyclopedia Judaica, Jerusalem) and earlier post here for a quote from Elon). Elon also refers to a later recognition “of a full legal right in respect of one's own spiritual creation.” Id. at 346. See also Adin Steinsaltz, The Essential Talmud 78–79 (1992) (discussing copyrights granted by various European communities in the mid-18th century for the printing of the Talmud and disputes that arose).


My former colleague at Cardozo, Rabbi David Bleich, has written that in the very early rabbinic literature, the issue discussed was attribution of authorship rather than proprietary rights in the words spoken (it was an oral tradition at the time). See David Bleich, 2 Contemporary Halakhic Problems 121-131 (1983). Thus, in the Mishnah Pirkei Avot (6:6), it is declared that one who repeats wisdom in the name of its expositor brings salvation to the world. The Tosefta (Baba Kamma 7:3), far from condemning use of other’s words without their permission as “theft” regards it as meritorious, so long as credit is given.


Those interested in how ancient Islam dealt with these issues should read Amir Khoury, "Anicent and Islamic Sources of Intellectual Prioperty Protection in the Middle East," 43 Idea 151(2003).

8 comments:

Rebecca Tushnet said...

Thanks for this. I'm always interested in the Jewish/halakhic perspective.

Dr. Claude Mariottini said...

William,

Thank you for your insights on Jewish perspectives on copyright. I will link your post to my blog. It is important for readers of my post to gain a different perspective on this issue.

Claude Mariottini

William Patry said...

Thank you Dr. Mariottini for your post, which inspired me.

Anonymous said...

I think Dr. Mariottini looks to the wrong text, and instead should look at the issue of copyright from the New Testament, which is the foundational text for Christianity.

I've never thought to look at copyright from this perspective, I think the starting point is Jesus's directive to do unto others as you would have others do unto you. I would not want someone to pass off my work as theirs, so I wouldn't do it. However, I would want someone to grant permission fairly freely for my reasonable use in another work, with attribution.

zohar efroni said...

As in the Anglo-American tradition, copyright in Jewish law has begun (already in the late Fifteenth Century in Italy) as protection to publishers against the release of rival editions. A useful discussion to the point by Nachum Rakover (in Hebrew) is available here: http://www.daat.co.il/mishpat-ivri/skirot/137-2.html

The analogy to trespass (“hasagat gvul”) was needed in order to justify the severe social-legal sanction of “herem” (excommunication) declared on buyers of rival, non-approved editions. The shift from publishers’ protection to authors’ protection - famously marked in the Anglo-American tradition by the Statute of Anne of 1709/10 - was quite problematic. One probable reason is that knowledge and wisdom (especially in the religious sense) were not supposed to become tokens for monetary bargain for exchange: See, Mishley (Proverbs) 23:23. (The English translation I’ve found reads: “Buy the truth and do not sell it; get wisdom, discipline and understanding”)

From the perspective of authors’ protection, Jewish law considered it much more important to accredit the author (and in copyright parlance: the right of attribution). Poor citations practice and omitting the name of the author was analogized not to trespass, but to theft (“gezel”). This is an interesting difference. Apparently, violation of the authors’ moral interests was considered more serious a matter than “merely” safeguarding print monopoly, securing the investments of printers and publishers.

William Patry said...

Thanks, Zohar. Rashi has an interesting commentary on the passage from Parsha Shoftim quoted in the posting that ties together hasagut gevul to gezel ("theft"). After quoting "Lo tasig gevul" (Don't move [back] the boundary), he asks (I'll give an English translation here):

"The word means the same as "They have retreated rearward [Yeshayah, 42:17]. When one moves the boundary marke rearward, into his neighbor's property, in order to increase his own. But doesn't it say "Do Not Steal." ["Lo tigazol," Vaikyra, 19:13]. Why then does the Torah say "Do Not Move back ...?" This teaches that somene who overturns his neighbor's boundary vioaltes two negative commandments."

MohanJjoseph said...

Thank you, Patry.
Mohan Joseph

Timothy Phillips said...

My starting-point for religious discussion of copyright would be the tradition of the open book, Proverbs 9.1-6.