Monday, August 11, 2014

History and Theory of Copyright Law – part 1

History and Theory of Copyright Law – part 1[1]
What is Copyright? part 10

The earliest copyright laws were written to protect the commercial interests of publishers. [2] They only covered printed works.  The concepts of intellectual property, copyright, and plagiarism prevention are related but not the same.  Copyright[3] is a legal, government sanctioned, monopoly covering the rights such as publication, copying, derivative products, etc.  Copyright has limits defined by law and treaty.  If you break the law you can be sued, fined or sanctioned.  Copyright laws were instituted to encourage the growth and dissemination of knowledge.

Intellectual property is the ownership of the creative efforts of an individual or group.  Intellectual property is owned forever.  When the copyright protection is over, works pass into the public domain and may be freely used, reprinted, and published without violating the law.  However, one can not claim to have written material that was authored by someone else.  Claiming authorship over something that is not yours without proper attribution or quotations, is plagiarism.  Plagiarism is not always illegal.  Plagiarism is morally and professional wrong and you can lose your grade in school, your reputation or your job.  These concepts are frequently confused because the nature of intellectual property has changed over the years and many people think if no one is losing money why is the action wrong.

Before the printing press authors didn’t care too much about intellectual property.  The great writers of the Middle Ages and the Renaissance were happy just to get their ideas spread to the public.  Shakespeare earned his living from producing plays, not publishing the text of the plays.  Even today most authors do not earn their full-time living from their writing.  Many people who write for a living create works for hire with their employer getting full copyright and control over the works.  For example I had a cousin who wrote hundreds of booklets for NASA.  He was not even credited in most of them. My brother earns his living by wiring technical and procedure manuals for clients.  He does not own the copyright to his works.

Graphics, pictures, and kinds of illustrations were not even considered for protection.  Forms of art that had not been invented such as photographs and moving images were not considered with any kind of open ended legal language. Today we have enough have enough imagination to consider forms of art and recordings that have not yet been invented.  In the copyright law it is written concerning what is protected:   “… works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” [4]

There is a publication distributed in synagogues called Business Weekly [5] which has been devoting a weekly column since July 4, 2014 (Parashat Balak) to copyright and patents[6].  Mostly they do not seem to understand the theory, history and practical application of copyright and the nature of intellectual property.  They also do not seem to understand that copyright and patent laws are vastly different in theory and application. This paper will deal with explaining the history and theory of copyright from a Jewish point of view.  I will probably raise more questions than I answer.  Halacha (Jewish law) parallels the history of secular and governmental copyright protection and law as they trace their roots to the beginning of printing.   Both halacha and secular law recognize that one can benefit from the fruits of one’s labor and should have a right to make a return on their investment.  The author’s rights have changed over the years.

Fundamental questions

The very nature of property that one can not hold or see makes the analysis of author or owner rights and copyright a hazy subject of in case law, statutory law,  and  everyday application.  The ease of copying and publishing electronically confuses many people as to what is actually protected.  Copyright protection enables authors to have control over their creations.  Even if the author does not charge for his/her creation, the work is protected and requires permission to copy.

1. Why is copyright protection needed?

2. Does halacha recognize ownership of intellectual property?
            A. What is intellectual property?
            B. Who is the creator of a work?
            C. Who or what is an author?
            D. What is ownership?

3. What are the limits of copyright protection according halacha and secular law?

4. Do the rules of protection differ based the type of work?  Are Torah works protected differently than secular works?  Is there a difference between music, graphic, and printed works?  Are non-published works protected?  Are non-recorded ideas protected?

5. Are governmental copyright laws and the Berne convention and other international treaties binding according to halacha?  If a country has not accepted the international treaty does halacha say we have to respect any commercial rights?

[This is the opening of the problem. This article will only give you  a taste of some of the history.  A more comprehensive history is found in Privilege and property : essays on the history of copyright  (see full citation in the bibliography to be published in later parts.) Some of these questions were covered in my earlier articles, but I will revisit them with a different focus. This article will be continued and published in parts.]

[1] This is the tenth article in my series on copyright.  It is written in response to hearing confusion concerning intellectual property rights and legal protection of copyrights.

[2]  Illustration notes: Image is from the British Library and is free of known copyright restrictions. Source is an illuminated manuscript: Haggadah for Passover (the 'Ashkenazi Haggadah'), German rite with the commentary of Eleazar of Worms. [Ulm?, Germany, circa 1460.]
A man searching for leaven in a cupboard and brushing crumbs with a feather. The miniature is place in the outer margin, next to the initial word at the beginning of the passage, 'On the day preceding the fourteenth [of Nisan] you search for leaven by the light of a lamp'.

[3]  United States Copyright is codified in Title 17 of U.S. Code. (  The Constitution in Article I, Section 8 granted to Congress the power ... “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”  

[4] Title 17 U.S.C. §102a. 

[5] Business Weekly is published by the Business Halacha Institute (BHI) Brooklyn, NY 11230.  Each week they publish a two page sheet, which may be found online at: .  The online web page lists the issues according to the parashat ha-shavuah (weekly Torah portion).   The form of the articles is to pose a question and then the rest of the article is the answer. 

In halacha and in scholarship in general how one composes the question is an important step in getting a correct and useful answer. 

[6] This paper is concerned with copyright law and theory issues. Copyright does not protect any idea, procedure, process, system, method of operation, concept, principle, or discovery; but they may be protected by patents (Title 17 U.S.C. §102b).  Patents are more difficult to obtain and last for a more limited time than copyright.  Patents need to prove originally; copyrighted materials do not need to prove or claim originality. Patents require a filing procedure and review; copyright protection is automatic and filing is optional.

1 comment:

Minnowonsay said...

Thanks for this. It is a good resource and I will know where to look if I want to find out more. We could do with a UK version.