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Shabbat Parashat Eikev 5774

P'ninat Mishpat: How to Protect Copyright of Torah Books

(based around Beit Yitzchak (Shmelkes), Choshen Mishpat 80)

[While intellectual property rights is a contemporary “hot topic”, the matter has been discussed for centuries, including in the following responsum. We have shared some applications of our opinion on the matter with the public in Living the Halachic Process, vol. II, J-1 and in Techumin, vol. XXXII, p. 233. The responsum was written to Rav Feivel Schreir of Brodshin. The only published book of his that I have found is an annotated edition of Ezer Mikodesh on Hilchot Gittin.]

 

You assume in your letter that you can obviously forbid the reprinting of books you have published and sold, but the matter requires much contemplation. It is true that the great rabbi of Lvov [Rav Shmelkes would, years later, hold that position] writes (Shoel U’meishiv I:1:54) that an author’s original Torah thoughts are his and are protected from copying even if his work does not have haskamot and charamot. [Many seforim were introduced with letters of approbation that not only praised the book/author but also declared the prohibition to steal his rights.] However, I have written in Beit Yitzchak (Yoreh Deah II;75) that when one has already taught and sold his books, we should assume he gave over his Torah broadly. Chazal tell us that Moshe was generous with his Torah, and this is the assumed approach. That is why authors procure haskamot to forbid others to reprint, for without one, there is no prohibition.

You are incorrect in assuming that if a publisher added something to an existing book, no one else may publish it in the same manner and that if non-Jews enforce such rules for their books, we certainly should. To the contrary, Torah is not supposed to be used for profit. Even if it is permitted to take money for teaching Torah on topics of a Rabbinical origin (see Rama, Yoreh Deah 246), that is only to be paid for effort or for refraining from engaging in other work. Permission to receive money does not mean that one creates a prohibition on others. Even regarding non-Jews, I am aware that they forbid reprinting only if the government licensed the original work.

Although those who printed the Tzelach (R. Y. Landau’s 18th century masterpiece) received permission from his son, that was only to be on the safe side. The works of Rav Yaakov of Lissa were reprinted many times without his sons’ permission, which allowed them to be sold at a low price.

The law of the land does apply to this matter. The Chatam Sofer (Choshen Mishpat 44) says that on a matter that benefits a group of professionals, the law of the land is binding, and this applies to authors. However, the law of the land in your place does not preclude those who live in a different country to reprint. On the other hand, there may be international cooperation on intellectual property rights. While I did not see a haskama in your book, I do not want to take a stand, as it is possible that there is a Torah law or a minhag to protect your rights.

You have asked me to forbid publishers in Warsaw from printing until they come to a din Torah here. However, the place of adjudication follows the defendant. While it is not clear who the defendant is (he who wants to publish or to prevent it), but it is likely that the one who initiates beit din’s intervention is the plaintiff. Therefore, I cannot force the Warsaw publisher to come here.

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