Monday, August 25, 2014

History and Theory of Copyright Law – part 2

History and Theory of Copyright Law – part 2[1]

In the August 11 article I posed several fundamental questions and problems concerning the history of copyright. This continuation has proved harder to write that I imagined a couple of weeks ago.  Authors and creators are entitled to protection of their intellectual property, but this was no always the case.  Before printing no one cared about laws to prevent coping.  Most of the copying was done by monks or other religious personnel.  Until the 18th century intellectual property was not protected very well.  The concept of intellectual property evolved in the 18th and 19th century.  This evolution included changing the protection of publishers’ investment to the protection of the creators’ creative output.  Copyright law allows a limited monopoly for exclusive rights to sell, publish, perform, translate, derive, record, etc. works that are fixed in a tangible form[2].


The first fundamental question concerns what is creation?

Ideas are the sparks of creation. Progress, change and prosperity resulting from novel ideas are the actions that led to every routine and breakthrough idea.  Ideals based on needs are what caused humans to use fire, wear clothes, and raise plants for food.  Progress in all forms relies on communications and the recording of experience. [3] 

Origin stories try to explain how ideas began. The origin stories work fine for literature, but in the history of law and society origins are complicated. The stories have many parts and it is sometimes hard to determine what causes what.  The origin story is more like a theory that explains some of what we see in today’s law.   

Creation is the first act for a work to come into existence.  The only creation that was created without being based on anything previous is the creation of the world.  The creation of the world after the first moment is self-perpetuating creativity from within. The movement of every atom and molecule is part of this perpetual creation.  As soon as God created people, they become partners in renewing and perfecting creation. Giving humans a soul and the power of language is a set of powerful tools for man to become an author and creator. Human creative activity mirrors Devine creation. This partnership has implications on creations that become copyrightable works. 

The model creation story is in the book of Genesis. God said, “Let there be light” and there was light.[4] God created the world in six days then rested on the seventh.  Every weekday people are creating and on the Shabbat they rest from work.   Creative activity is what is not performed on the Shabbat.  That is fine for resting from work, but only gives a narrow view on creative work that is copyrightable.  One classification of forbidden work is creation such as writing and sewing.[5] Writing is using a tool such as a pen to put letters and words on blank paper (or its equivalent).  Sewing is the act of taking pieces that are initially useless and creating something new and valuable.   However, the exchange of ideas and learning happens every day including Shabbat and holidays.  The spreading of ideas, while it may be something new or creative does not satisfy the requirements of copyright or the legal limits of forbidden Shabbat work.  Wisdom and understanding were parts of the ten things that God needed to create the universe.[6] Creative activity is connected to wisdom.

Ideas that are never put in tangible form are not created.  A casual conversation among friends is not created. In order for the entity to be a “work” it must have a point of creation.   Only a recording or written documentation of the conversation has a moment of creation. National copyright laws are the descendants of state[7] and local statues and common law. The legal tradition in the United States and the United Kingdom (and its Commonwealth and former colonies including Israel) is public interest oriented.  This philosophy is clearly stated in Article I section 8 of the constitution, “To promote the Progress of Science and useful Arts.“ In France and Germany the laws are “author-centric” protecting the intellectual property or “natural rights” of the creator.  Since the creation of international copyright treaties, these two basic philosophies of protection have needed some reconciliation.  The term of copyright based on the life-time of the creator is based on the French-German model.  The lack of a requirement to use a copyright symbol or include a claim[8] in the current law is European in origin.[9]

Creativity is fluid.  It begins internally and develops to the point when it can be expressed in a tangible form such as a sentence, picture or audio-visual recording.  For the creative mind, the effort to push this creative juice out of the subconscious and into the world is a force that can not be fully explained or controlled.  The creative effort is hard work that must be continuously revised.  Sometimes the work takes over and the author or artist who becomes just a recorder of the process.  The creative forces of the soul push thought into words or visuals.  This creative force implies that financial reward is not the only motivator of creativity.

An ontological study in the nature of reality puts some context to the law within the culture of the origin and how that influences the law today.  This helps to explain how the law should develop. Creation for literature and science is the act of taking what is known and coming up with a new idea or what of expression.  In the world of realia creation is the act of taking pieces and putting them together in a way that makes the whole more valuable than the parts.

Property rights

The next fundamental question concerns what is a property right?  If a creator invests his/her time, wisdom, and energy into a creation, does the creator have property rights over the creation?

B. Matthews[10] discusses opinions on bother sides of the issue as to whether or not an author has any ownership or property rights to their work.  Property rights are a matter of law and the state can define and limit ownership rights.  For example when the state has an interest the rights are more limited that when there is no interest.  The state has little interest in what you do with your clothes.  Once a shirt is bought you may wear it, wash it, sell it, rent it, or destroy it and the state won’t limit you.  However, for buildings the state will have many laws or regulations concerning building codes, housing codes, contract law, zoning regulations, etc.  The state wants to protect the residents from issues such as unsafe buildings or uncontrolled development.  The author has a right to benefit from his creative activity.  Monetary reward is only one of the types of rewards the author receives.

In per-commercial societies there was little need for complicated properly laws. The laws of contracts, torts, and damages developed to govern property rights.  If someone thinks he has been “wronged,” then he can demand justice in the form of legal actions such a law suit or legal sanctions.  The law has developed a way to allow people to defend their property in a way that society benefits.  The law prevents vengeance and chaos. The law also facilitates central planning.   In some places individuals can not own land.  They only own property rights to things that can be made, built or controlled (i.e. animals).  Humans could not own or control invisible or intangible property.   In Jewish law an owner has to take possession of the property either with a contract, exchange or money, moving the property or occupying the property.  None of these apply to intangible property. 

In ancient Greece, medieval Europe, and during the Renaissance, playwrights, poets, and other authors earned their living from performances or public readings. Booksellers in ancient Rome did not pay the authors.  Authors did not think this was a problem until the invention of the printing press.  Preparing a book and editing the text for the early printed editions was a job for an expert. Printers were also the publishers.  Since they made a substantial investment in time and money, the publishers wanted protection from pirated copies.  The city of Venice issued the first copyright in 1469 for the works of Cicero. The period was five years. That began the legal protection of intellectual property.


The third fundamental question concerns who is an author.

Authorship is not always clear.  If a person writes a poem or novel by himself and signs the works, there is little question as to who is the creator and author. What happens when two people collaborate and write under one pseudonym? The authors’ real names may to unknown.  Who is credited as the creator?  What is the creative work of an editor who brings together the work of many authors?

Commodities, i.e. physical objects, are made from raw materials.  Intellectual content and creativity is based on prior knowledge and wisdom. Since knowledge is both the input and output, one must give proper attribution to the source.  Attribution is established in the Torah when the author (Divine or human) of a statement is identified.  In Talmudic times failure to credit a Torah insight to its source was an issue.  In Avot 6:6 is listed ways of acquiring Torah knowledge.  One of the ways is to repeat an idea in the name of the one who wrote it.  This refers to the Book of Esther 2:22 where Esther reported an incident to the king in the name of Mordecai.  The implication is that one gets reward not only for the original teaching but also when a student spreads the learning from a teacher.  This learning from the previous teachers is the same as “standing on the shoulders of giants.”[11]

Before printing the transmission of knowledge was primarily oral. That is the reason the Mishnah and Talmud are part of the oral law or tradition.  Even in a scholarly society, the benefit for producing novel content was not monetary gain.  Harsh words were used for those who used Torah to earn a living.  Most rabbis of the Talmud had occupations to earn a living.

Even in today’s society we have scholars, academics, lawyers, and even business people who share their knowledge via speeches and writings without direct compensation.  Sharing knowledge may be for reasons that help the person advance his/her career or reputation, but it is not to earn a living from the endeavor.  Contrast this to a business model where the audience is directly paying for the knowledge (or entertainment) of the oral, recorded, or written word.

The Talmud does not have a penalty or any way to enforce a person’s right to his words.  A person could listen to a lecture and teach the thoughts later.  Thus a creator of knowledge has a right to ownership of the creation.

The earliest copyright laws protected only published, written works such as books, periodicals, and pamphlets.  Pre-publication manuscripts and graphic works were not protected.  Later art was added.  When photography was invented at first it was not considered art, but was eventually protected.  The earliest moving pictures were protected by making prints of the frames and sending them to the Copyright Office.  Eventually the law was changed to include protection of moving images. The lawmakers seem to never take into account creative works that were not extant when the law was written.

The French Literary and Artistic Property Act, Paris (1793)[12]  Established that authors, composers of music, painters, engravers, shall have their works protected for the lifetime of the creator and for a period of ten years after their death. The law narrowly defined limits by listing the types of works that are protected.  Realia and art works such as sculpture and models, buildings, and artistic media not invented at the time are missing.

On February 16, 2012 I heard Professor Roberta Kwall[13], of DePaul University School of Law give a lecture entitled, “Jewish Process Thought and Copyright Policy” [14]She examined a case, Chapman Kelley v. Chicago Park District[15] through the lens of a law professor and Jewish process theology.   The lecture covered many aspects of creation from the position of the Bible and Jewish tradition and how they relate to the case and copyright.  Some aspects of library collections and cataloging cover situations that the law has yet to address.  Professor Kwall said many times in the lecture that VARA (The Visual Artists Rights Act of 1990, Title 17 U.S.C. §106a) was too narrowly written to cover all aspects of visual art.[16]  The Seventh Circuit Court held that Kelley’s work was not protected under the copyright law. 


The state has an interest in protecting intellectual property so that people are encouraged to create and spread new ideas. Since the arts and sciences need to advance to make a better society, dynamic creativity never ends. Society needs to encourage creative energies and their application so that society is entertained, learns and advances.  Creators have the right to benefit from their time, creative energy and monetary investment.  The right to copyright protection begins after the work is created.  Opportunities to get reward for their creations benefit the creator, the publisher and society. 

The study of copyright never ends because of the dynamic nature of creativity. This story will be continued in further articles.


Many of the ideas expressed in this article are not precisely cited because they come from multiple sources and synthesized into this document.  One should also refer to my other articles on copyright published in this blog.  Below are some of the books and articles used in the preparation of this article

Bracha, Oren. Owning ideas: a history of Anglo-American intellectual property : a  thesis presented  to Harvard Law School, Graduate Program.   Cambridge, Massachusetts : Harvard Law School , June 2005.  Retrieved from:

Matthews, Brander. “The Evolution of Copyright” in: Political Science Quarterly, Vol. 5, No. 4 (Dec., 1890), pp. 583-602. Retrievable from Jstor  Stable URL:

Burleson, Ken  "Learning from Copyright's Failure to Build its Future," in Indiana Law Journal: Vol. 89:3, (2014) Article 6. Available at:

Cass, Ronald A. and Keith N. Hylton.  Laws of creation: property rights in the world of ideas.  Cambridge, Massachusetts: Harvard University Press, 2013.

The construction of authorship : textual appropriation in law and literature / edited by Marth Woodmanse and Peter Jaszi.  Durham, NC : Duke University Press, 1994.

Foucault, Michel. “What is an author?”   In:Textualstrategies.perspectivesinpost structuralistcriticism / edited by Josué Harari.NewYork:CornellUniversityPress. Translation of:  "Qu'est-ce qu'un auteur?”  

Hazan, Victor. “The Origins of Copyright Law in Ancient Jewish Law.”  18 Bulletin of the Copyright Society of the U.S.A 1970-1971 p. 23-28.

Katz, Jacob.  Exclusiveness and tolerance : studies in Jewish-Gentile relations in medieval and modern times.  New York : Schocken Books, 1961.

Katz, Jacob.  Out of the ghetto : the social background of Jewish emancipation, 1770-1870. Cambridge, Mass. : Harvard University Press, 1973.

Kwall, Roberta Rosenthal.  “Copyright issues in online courses: ownership, authorship and conflict,” In  Santa  Clara high technology law journal 18 :1 (2001).

Kwall, Roberta Rosenthal. “The Lessons of Living Gardens and Jewish Process Theology for Authorship and Moral Rights” In:Vanderbilt Journal of Entertainment & Technology Law, Volume 14:4 (May 2012) ; DePaul Legal Studies Research Paper No. 2012-05. Available at SSRN:

Marcus, Jacob R. The Jew in the medieval world : a source book 315-1791. New York : Atheneum, 1977.

Netanel, Neil Weinstock. “Maharam of Padua v. Giustiniani: the sixteenth-century origins of the Jewish law of copyright.”  Houston Law Review, Vol. 44, 2007. UCLA School of Law Research Paper No. 07-34. Available online from:

Netanel, Neil Weinstock. and David Nimmer. “Is copyright property? : the debate in Jewish law”  in Theoretical inquires in law, vol. 12:1 (2011) UCLA School of Law Research Paper No. 10-12 . Available online from:

Nimmer, David. “In the shadow of the emperor : the Hatam Sofer’s copyright rulings (December 3, 2009), in The Torah u-Madda Journal, 2009; UCLA School of Law Research Paper No. 09-33. Available online:

Patry, William. “The Bible and Copyright,”  2007.

Privilege and property : essays on the history of copyright / edited by Ronan Deazley, Martin Kretschmer, and Lionel Bently.  Cambridge, U.K. : Open Book Publishers, 2010.  See

Silbey,  Jessica M., “The mythical beginnings of intellectual property” Suffolk University Law School Faculty Publications. Paper 48, Jan. 2008.  Retrieved from:
Part of: Nellco Legal Scholarship Repository. Sufflok University Law School Faculty Publications.

Silverstein, Arthur  Jay. “Copyright in Jewish Law “ in Tradition, Spring 1974. 14:3  pages 28-36.  Online available from:

Ungar, Daniel. “Copyright enforcement by praise and curse: the Colourful development of Jewish intellectual property (March 1, 2011). In Intellectual property quarterly, issue 01, 2011. Available online from:: or

Yen, Alfred C.  “The interdisciplinary future of copyright theory.” In: The construction of authorship. pages 159-173.

Zanotti, Lauren.  “TextSummary ofMichelFoucault’sWhatisanAuthor?”  DepartmentofEnglish,UniversityofBerne, October 2008.

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

[2] The other areas of intellectual property that are protected by patent law, trademark registration, and trade secrets are beyond the scope of this discussion.  The bar to earn a patent is much higher than copyright protection.  Patent applicants have to prove, creativity and originality.  Copyright holders do not need to prove anything be granted protection.

[4] Genesis 1:2.

[5] The classifications of work that are forbidden on Shabbat are derived from the labors needed to create the Tabernacle.  Some labors such as planting crops, cooking, and dying cloth have no connection to the types of creation that are protected by copyright.

[6] Examine Talmud Hagggah 12a : In the section that Rav Zutra bar Toviah talks about the ten things that God did to create the world one the sixth is:  “By wisdom and understanding,” for it is written (Proverbs 3:19): The Lord by wisdom founded the earth; and by understanding established the heavens.  העשרה דברים נברא העולם בחכמה ובתבונה.

[7] Here I mean the individual states that became the United States. In other parts of this article “state” is a governmental entity that can enact laws and statutes.  That includes cities, counties, states and countries.

[8] Before 1976 the U.S law required the copyright sign © or the word “copyright” for protection.  Examples of the requirement are: © 1975 or copyright 1975.  Many works lost their copyright protection because they failed to include this claim. 

[9] For more on the history of copyright see: Privilege and property : essays on the history of copyright / edited by Ronan Deazley, Martin Kretschmer, and Lionel Bently.  Cambridge, U.K. : Open Book Publishers, 2010.  See for more information about this book.

[10] Matthews, Brander. “Evolution of copyright.”

[11] See the Kol Safran blog entry of February 1, 2012 : “Shoulders of Giants?”  footnote 1 for a discussion on the source of this phrase.

[12] The text and English translation may  be found in:

[13] She is the Raymond Niro Professor of Intellectual Property Law and the co-director DePaul’s Center for Jewish Law & Judaic Studies.

[14] See the bibliography for the reference to the article based on the lecture.

[15] Legal citation for case: 635 F.3d 290 (7th Cir. 2011, cert. denied, 132 S.Ct. 380 (2011). The case can also be located using Google Scholar because they index court cases.

The case dealt with the landscape job that Chapman Kelley created in Grant Park of Chicago. The works is described in the case as, “two enormous elliptical flower beds … featuring a variety of native wild flowers.”  It was promoted as “living art.”  Until 2004 Kelley and a group pf volunteers tended the garden, cut and planted as needed. In 2004 the Chicago Park District modified the garden, reducing it to half of the original size.

[16] There was a bill introduced on December 15, 2011 Congress H.R.3688,  Equity for Visual Artists Act of 2011, that would have required a 7% royalty to be paid on sales of art abject sold by auction houses for more than $10,000. Part of the royalty would go to the artists and part an artists’ entity that would distribute the money to museums.  The bill proposed to exempt art from copyright procedures. The bill seemed to recognize some aspects of intellectual property beyond what is copyright protected for books and other printed works.  The bill was never passed into law.

 Tags :  #copyright #talmud

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