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Shabbat Parashat Ki Tavo 5774

P'ninat Mishpat: Intellectual Property Rights Revisited

(based around Shoel UMeishiv I:I 44)

[In Parashat Eikev, we saw the analysis of the Beit Yitzchak (Shmelkes) on the question of copyright on books on Torah subjects. Rav Shmelkes was uncertain if halacha forbids reprinting without permission where the law of the land and the bans of great rabbis do not preclude it. We will see that Rav Nathanson, Rav Shmlekes’ predecessor as Rabbi of L’vov, had a stronger belief in the innate nature of intellectual property law. One of the fascinating things about the responsum is that the Shoel U’Meishiv cites no outright classical sources on the matter and did not feel a need to give an exact halachic framework of the rights. The responsum is a critique of the ruling of the rabbi who sent him the question, Rav Shmuel Waldberg.]


The question about which you ask for my input refers to a dispute about the publishing of the Yoreh Deah section of Shulchan Aruch with the commentaries of the Pri Megadim, Chavot Da’at, and Pitchei Teshuva. You ruled that the first publisher cannot prevent the second publisher from reprinting old commentaries. Regarding the new Pitchei Teshuva, you said it is forbidden only if the author received authority from the government to publish, in which case dina d’mlachut (the law of the land) applies. The first publisher claims to have bought the rights from the author, but you said that the author cannot sell more rights than he has, and the fact that he published the book the first time (1836) without writing that it is forbidden to republish means that the author no longer has authority.

What you wrote does not make sense. An author who publishes a certain amount of books because he does not know how much demand there will be certainly maintains the sole rights to republish. Even regarding technical inventions, for example, Reb Avram Yaakov of Harovshuv received payments throughout his life from the Kaiser in Warsaw for the machine he invented. Could our words of Torah be of lesser value than the machine? [Ed. note- It is not clear why the concept of teaching Torah for free does not weaken the comparison]. It is clear that authors have can keep their rights for as long as they want, including for future generations, just that most authors want others to strive to publicize their works after they have succeeded in selling off that which they originally published. The Pitchei Teshuva did an important service that many are in need of – collecting many different opinions – and he can keep his rights or sell them.

The fact that the Pitchei Teshuva did not write a ban on the reprinting of his sefer is due to the fact that the Russian government does not allow such bans, and applying for their authorization runs the risk of falling prey to the censor. Even the idea of limiting the rights to within one country is wrong, as that distinction applies only to publishers of classical seforim, not those whose authors are alive.

Those who give proper approbations to seforim do not need to invoke bans. It is more than enough to remind people of what the Torah says – that one should not be masig g’vul (encroach upon others’ property). [He continued to discuss anecdotes about several publications.]  
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