Primary Sources on Copyright (1450-1900)
Commentary on Nathanson Ruling on Matter of Yoreh De’ah (1860)
Neil W. Netanel
School of Law, University of California at Los Angeles, USA
1. Full title
4. Nathanson’s Ruling
5. Epilogue: Yitzhak Schmelkes
1. Full title
Responsa Shoel u-Meshiv, Part 1, No. 44
Rabbinic ruling holding that authors have a universal, perpetual exclusive right to print and distribute their work. Nathanson’s ruling is the first to adopt such a model of literary property in Jewish law. It drew criticism in a later rabbinic ruling as lacking any support in precedent. Although Nathanson does not expressly state that he is adopting the concept of literary property from secular law, it seems clear that this was the case. Nathanson also sought to preserve a central role for Jewish law in regulating the Hebrew book trade in an era in which rabbinic reprinting bans had lost most of their force because secular authorities had prohibited rabbis from issuing reprinting bans enforceable by excommunication and because Jewish communities were divided across territorial borders. Nathanson’s ruling stands as the primary authority for those present-day rabbis who hold that authors have a property right in their works.
Joseph Saul Nathanson (1808-1875) was rabbi of Lemberg, then the capital of Galicia, a crown land of the Austrian Habsburg Empire and a major center of Jewish printing and cultural life in the nineteenth century. (Lemberg is now Lviv, a city in western Ukraine.) Nathanson was widely regarded as one of the great Talmudic scholars of his generation. He was also a major figure in the printing of books of Jewish learning and liturgy. He was renowned for issuing some 300 haskamot (rabbinic approbations), about one-third of which contained a reprinting ban. Nathanson also authored several works on Jewish law and helped some of his pupils establish publishing houses that specialized in rabbinic literature. He had familiarity with secular copyright law; we find references to the copyright laws of Russia and Austria in his writings.
In 1860 Nathanson gave a groundbreaking ruling in a dispute between rival publishers involving competing editions of Yoreh De’ah, a section of the seminal Jewish law code, the Shulhan Arukh, that served as a key text in nineteenth century academies of rabbinic learning. Abraham Joseph Madpis, the scion of a distinguished family of Jewish book publishers, published part one of Yoreh De’ah in 1858. Madpis’s edition included a number of commentaries and annotations. Among them was Pithei Teshuva, a leading index of rabbinic rulings regarding the Yoreh De’ah, which was authored by Avraham Tzvi Hirsch Eisenstadt (1812-1868) and first published in an edition of Yoreh De’ah printed in Vilna in 1836.
In the meantime, Madpis’s rival, Pinkhas Moshe Balaban, made plans to publish his own edition of Yoreh De’ah, also featuring Eisenstadt’s index. Balaban received a reprinting ban and ruling in his favor from Rabbi Shmuel Valdberg of Zolkiew. Madpis then apparently appealed to Nathanson to rule that he, Madpis, and not Balaban, had the exclusive right to reprint Pitchei Teshuva as part of an edition of Yoreh De’ah. Madpis claimed to have acquired that right from Eisenstadt or Eisenstadt’s assignees.
Eisenstadt’s index and the edition of Yoreh De’ah in which it initially appeared had been published without a rabbinic reprinting ban – and even if a ban had been issued, the ban would most likely have expired by the time Madpis reprinted the work 32 years later. Accordingly, Valdberg ruled that Madpis had no rights in Pithei Teshuva under Jewish law per se. Rather Madpis’s rights in Eisenstadt’s index were limited to whatever rights that Madpis held under secular copyright law – this pursuant to the Jewish law principle “the law of the sovereign is the law,” meaning that rabbinic courts may generally defer to secular law in commercial matters.
4. Nathanson’s Ruling
Nathanson sharply disagreed with Valdberg. He concluded that Madpis had the exclu- sive right to print Pithei Teshuva under Jewish law by virtue of having acquired the author’s exclusive, perpetual right in those works. In so ruling, Nathanson sought to distinguish between an author’s rights in new works and a publisher’s rights in existing works. For Nathanson, although publishers’ rights under rabbinic reprinting bans and the law of wrongful competition are, indeed, subject to the temporal, territorial, and substantive limits that nineteenth-century rabbinic authorities had repeatedly imposed, authors enjoy exclusive rights that are perpetual and enforceable throughout the world.
But, of course, Nathanson’s purported distinction between publishers and authors quickly breaks down. Under Nathanson’s blueprint, authors’ rights are fully assignable to publishers. Indeed it was a publisher, Madpis, who sought to enforce the author’s rights in the dispute in which Nathanson issued his ruling. Consequently, Nathanson, in fact, propounded a vast new, perpetual exclusive right that could be enforced not only by authors, but by publishers and anyone else who has acquired the right anywhere in the world. Henceforth, publishers could squelch rival editions by taking assignment of the author’s exclusive, perpetual rights. Publishers would no longer need to rely on rabbinic reprinting bans, with all their attendant limitations.
According to Nathanson, indeed, rabbinic reprinting bans are merely a mechanism for the author to declare that he waives his perpetual right and that anyone who wishes may reprint the work following the expiration of the period of exclusivity set out in the ban. Under Nathanson’s logic, if a book is published without a rabbinic reprinting ban, the author and his assigns enjoy a perpetual, exclusive right to print it. It is only when a book is published with a reprinting ban that the author’s exclusivity expires with the ban.
The Jewish law basis for Nathanson’s enunciation of authors’ rights is far from a paradigm of clarity. He cites no Talmudic proof text or rabbinic precedent for such a ruling and, given the weight of rabbinic authority that preceded him, it seems unlikely that he could have found any. Rather, Nathanson presents the author’s perpetual right simply as a self-evident, obvious proposition. As he puts it:
[I]f an author prints a new book and he merits that his words are received all around the world, he obviously has a perpetual right [to his work], because in any case if one prints or invents some type of craft, another person is not allowed to do so without his consent. And it is known that Rabbi Abraham Jacob of Harobshob, who invented a machine to do arithmetic, received throughout his life payment from the government in Warsaw; and “Shall not our perfect Torah be no less than their idle chatter?” This is something that common sense rejects, and it is a daily occurrence that one who prints a work, he and those empowered by him, retain the rights.
For Nathanson, it seems, because secular law recognizes that inventors and authors have exclusive rights, and because “our Torah,” the source of Jewish law, is perfect (and complete), Jewish law must also recognize such exclusive rights. It could not be otherwise.
In the absence of rabbinic authority to support his position, Nathanson most likely came to his understanding that authors “obviously” have a property right in their works by drawing upon the secular copyright laws with which he was familiar. In the decades preceding Nathanson’s ruling, the view that authors enjoy a natural property right in their creations had come to dominate European copyright law and thought. Indeed, the Austrian Law for the Protection of Literary and Artistic Property of 1846—to which Nathanson later refers in his ruling and in some of his haskamot—expressly affirmed, in both its title and statutory text, that literary and artistic creations are the “property” of their author. Further, the Austrian Law vested the rights and property in the author, not the publisher, giving the author the “exclusive right of disposing of his work as he wishes” and the prerogative to “transfer this right to others wholly or partly.” As such, the Austrian Law followed on the Prussian Statute to Protect the Property in Works of Scholarship and the Arts against Reprint and Reproduction of 1837, the Russian Copyright Law of 1828 and Decree of 1830, and the French Literary and Artistic Property Act of 1793, all of which replaced book privileges with a modern copyright law vesting a “property right” in the author.
To be certain, in contrast to Nathanson’s assertion of a perpetual property right as a matter of Jewish law, these secular copyright laws imposed durational limits on the author’s exclusive rights. Under the Austrian Law, for example, the duration of the copyright term for printed works was the life of the author, plus 30 years. And as Nathanson expressly noted in the introduction to a book he coauthored, first published in Vilna in 1839, his rights under the Russian copyright law of that time lasted for the life of the author plus 25 years (although in 1857 the copyright term in Russia was lengthened to the life of author plus 50 years).
Nevertheless, Nathanson likely took inspiration from the secular copyright laws’ conceptual and doctrinal embrace of authors’ rights of literary property when he propounded a universal, perpetual, and transferable property right for authors under Jewish law. Legal transplantation commonly involves the modification of foreign legal concepts as they are incorporated into a new legal regime. Nathanson, it appears, creatively adapted the concept of literary property to comport with the framework of Jewish law. In Jewish law, property rights are perpetual and universal. There is no mechanism for devising a property right that is limited in time, except, perhaps, through rabbinic regulation, which would have no effect outside the territory where the rabbinic regulator has jurisdiction.
Nathanson’s ruling also appears to be an effort to maintain the centrality of Jewish law in matters relating to the trade in books of Jewish learning and liturgy in the face of the dramatic decline in Jewish communal autonomy and rabbinic authority that had been in the late eighteenth century. Nathanson emphasizes in his ruling that in Russia, where Eisenstadt’s index was first published, the government has forbidding rabbis from issuing reprinting bans enforceable by the threat of excommunication, the sole effective means for rabbinic enforcement of such bans. As a result, reprinting bans have come to be framed as mere requests, not enforceable rabbinic commands.
Further, following the demise of the Council for Four Lands and the Partition of Poland, the center of the Jewish world was now divided by national boundaries and faced severe restrictions on shipments of books across those boundaries. Rabbinic authorities had acquiesced in that reality by holding that rabbinic reprinting bans do not have effect across territorial borders, thus enabling local publishers to reprint books that could not be imported in any event. Yet, in recognizing authors’ universal property right, Nathanson devised a mechanism by which authors could assign exclusive rights to reprint their works other countries.’
5. Epilogue: Yitzhak Schmelkes
Yitzhak Schmelkes (1828-1906) was the head of the rabbinic court of Przemysl, in Austrian Galicia, in the late nineteenth century. A native of Lemberg, Schmelkes had been a student of Nathanson’s. But Schmelkes authored two influential responsa that were sharply critical of Nathanson’s recognition of perpetual author’s rights.
Schmelkes held that an author’s heirs have the exclusive right to publish their father’s as yet unpublished manuscript. Indeed, Schmelkes posited, even if the author printed the book in his lifetime but has yet to sell his first printing, it is forbidden for another person to reprint the book and thus cause economic loss to the author’s heirs.
In sharp contrast to Nathanson, however, Schmelkes’s recognition of an exclusive right in the author’s heirs is limited to the right to print manuscripts and reprint books that have not yet been sold. But if the author has already sold his books, the situation is entirely different in Schmelkes’s view. When copies of an author’s book have been printed and sold, the author has already made his views public. Other people are then freely entitled to learn from and teach them. In Schmelkes’s view, moreover, once the author has sold his books, the rabbinic principle of “the jealousy of scholars increases wisdom” dictates that another may bring benefit to the people of his generation by printing and selling more books with the same content, but for a cheaper price. Once the author has recovered his initial investment, competition in publishing the book enhances the dissemination of Jewish learning.
As to Nathanson’s holding that authors have a property right under Jewish law, Schmelkes stated: “With all due respect …, I see no proof for this opinion.” To the contrary, once an author has sold his first printing, he must share his knowledge freely rather than attempting to profit from it. “For the Torah is compared to water, from which one may draw freely without charge.”
Schmelkes did recognize that authors and their heirs may have rights under secular copyright law that rabbinic courts must respect. He states that “under the Jewish law principle of ‘the law of the sovereign is the law,” even when the secular law runs contrary to the Torah [i.e., the fundamentals of Jewish law], we must defer to secular in commercial matters unless doing so would impose an economic loss.”
In sum, both Nathanson and Schmelkes looked to secular copyright law for a means by which authors and publishers of books of Jewish learning could have recourse to rabbinic authorities for protections against reprinting. Yet, the two rabbinic authorities took diametrically opposed positions on the role of secular copyright law in that endeavor. Nathanson rejected Shmuel Valdberg’s earlier ruling that, in the absence of an enforceable reprinting ban, an author and his assigns have rights only under secular copyright law. Instead, Nathanson took inspiration from secular copyright’s recognition of an author’s right of literary property and incorporated that principle into Jewish law. In contrast, Schmelkes gave recognition to secular copyright law without incorporating it into Jewish law per se. For him, the right to prevent reprinting even after the author had sold his initial print run lay only in secular law. And it was only by virtue of the Jewish law principle, the law of the sovereign is the law (together with the associated custom of respecting secular copyright law), that Jewish law would accord protection against such reprinting.
This commentary draws heavily on the much fuller discussion in Netanel, N., From Maimonides to Microsoft: The Jewish Law of Copyright Since the Birth of Print (New York: Oxford University Press, 2016), pp. 215-235.