Friday, September 19, 2014

Shannah Tovah 5775

This is the time of year when we celebrate a new year. We spend a month preparing by adding a psalm to the evening a morning services and hear the shofar every non-Shabbat morning.  This leads us to the solemn mood of the actual days of Rosh Hashana.  They are days of prayer, reflection, thanks, and appreciation of family, friends, and community.  Rosh Hashana is the birthday of the world.  The day is universal. Rosh Hashana is a fall holiday always on Tishri 1.

Before 1752 the date of the new year in the western world had several dates, January 1, March 1, March 15, March 25,  September 22, December 25, and Easter. March 25 (for the spring solstice) and Easter are close in time to the Jewish month of Nissan, which is the first of months according to the Torah.

January 1 was the beginning of the civil year in Ancient Rome beginning about 153 BCE.  It was the date the year tenure of the consuls began.  Julius Caesar introduced a solar based calendar called the Julian calendar in 46 BCE.  He decreed the new year started on January 1.  This date became consistent in the Roman world.

In the middle ages celebrations of the new year were considered pagan and unchristian.  The new year date was not consistent.   In 1582 when Pope Gregory introduced calendar reforms to correct discrepancies between the calendar date and the solar date.  10 days need to be added to the calendar.  This meant the date in England was not the same as the rest of Europe.  The Julian calendar was 11.5 minutes less than the solar year.  The Gregorian calendar differs from the solar year by 11 seconds per year. The Jewish calendar is a lunar-solar year that is corrected by adding seven leap years within a 19 year cycle. This makes the dates seem to late or early compared to the civil years,  but with the cycle the holidays always occur within correct seasons.

On September 2, 1752 British subjects including the U.S. Colonies went to bed and woke up on September 14.  The days were added to the calendar to put England into sync with those countries using the Gregorian calendar.  Russia adopted the Gregorian calendar in 1918 after the revolution.

The early Christians celebrated their new year with reflecting on past mistakes and resolving to improve, echoing their Jewish roots.  In ancient times and continuing to modern China noise and fireworks are used.  This is custom is believed to bring good luck by scaring away evil spirits.  In the United States new year is a time for parties and celebrations, football, parades, and the Times Square gathering.

I wish you a Shana Tovah, a good year full of good things and events.  May you, your family and friends, be showered by haKodesh Barechu with Gezunt (health), Parnassah (income) , Yiddishe Nachat (pride from your children and families), wisdom, and may you have the honor and respect that you deserve.  May all your Tefillot (prayers) be answered for the good and may we only share in Simachot (happy occasions) and support each other in times of need.

May we be zoche (deserving) to experience peace in our personal lives, peace in our communities, peace in Israel, and peace in the entire world for the coming year.  We should pray for peace, prosperity, and justice for all for now and forever.

Ketiva v'chatima tovah! May you be inscribed for a good year, a sweet year!  May God bless us and keep us, shine his face on us,  and send us a happy and good year for us and all those we know.

Spread the good wishes to all your friends, family, and contacts.

Comments:  Sept 21, 2014

After receiving many nice comments and discussing some of the academic points above I have additional comments.

Connection to library cataloging --  Entering the year is an important part of the catalog record.  The date helps keep editions straight.  There are well established practices for entering Hebrew dates and making sure the correct civil date is indicated.  For example from now until January 1, 2015, one must be careful about the Hebrew year of 5775.  The the year may be entered as 2014/2015.

Every year publishers will issue books with the following year on the title page.  For example the publisher puts "2015" on the title page and copyright date, but sells the book months before January 1.  The rules tell the cataloger to record the date as written on the title page and usually a note will be added to remove confusion.  Before I wrote the above piece I never thought about a difference in date on a British book when compared to the date in Europe.  We would record the date from the title page.  The first law of copyright, The Statue of Anne was effective in February 1709.  However, the year was 1710 in Europe. 

Noise making -- The sound of the shofar is loud and piercing sound.  In the month before Rosh Hashana we blow the shofar every morning.  On the morning of the 29th of Elul we do not blow the shofar with the reason given, "we want to confuse the Satan (evil spirits).  If the shofar blower has difficulty blowing on the day of Rosh Hashana the folklore says that Satan is in the shofar preventing the sound form emerging.  These ideas may be related to the noise making on new year for other cultures.  The difference is the law of blowing and listening to the shofar.  One is required to listen to 100 sound blasts. Someone calls out each sound so that the shofar blower can concentrate on the sound.   Each blast must be perfect or it must be repeated until it is correct. 

Sunday, September 14, 2014

Are you a volunteer?

Sage advice to a job hunter is to find a job that you enjoy and never work a day in your life.  In reality it is very hard to find a job that you are so passionate about that you would work there without pay if you were independently wealthy.  Most librarians love their profession and what being a librarian can contribute to the world.  Librarians try to make order out of chaos so that library users can find what they need or want.  

Most of the time, I write columns that are more academic than passionate.  Last week I saw an e-mail on HaSafran that made me angry.  The post wanted a volunteer to help organizing a synagogue library.  The person, the rabbi of the synagogue, posting did not even understand enough about how a library works to ask the right questions.  This rabbi has simcha (rabbinical ordination) from a yeshiva that does not require a college education and his biographical profiles on the synagogue web site and LinkedIn do not list a college degree.  He has been the rabbi of this congregation for about 20 years.

In July and August of 2003 I wrote two articles on the compensation, expertise and training of librarians.[1] One of the reasons I started writing these columns is to show off the expertise of librarians.  Librarians are valuable members of the education team.  One of the questions librarians hate to hear is, “It must be great to sit and read all day. Are you a volunteer?”[2]

Here is the rabbi’s request with all names and identifying details removed:

To whom it may concern,

 My name is Polony Almony, I have a small Congregation in a suburb. Over the last several years we built a Synagogue, established a full time kollel where Talmudic law is studied, and have an active outreach program where many people are connected to their Jewish tradition. Starting from scratch, we have built up a library of a few thousand (English) books.  Things were totally out of hand as far as having books borrowed and returned, with no good record of what was out. One lady in the community tried to make a system with cards that were in each book, but it really did not work. This summer my mother put bar codes on most of our books. She lives in another city, but came here to volunteer for a while.

At this point we are at an impasse as we try to get our library functioning again. The bar coding is still not finished for the hundreds of new books that were never entered, nor with old books as they come back. We also have not yet set up a system to actually start using the scanner that we have here. In addition my mother has told me that I must have a librarian come in once a week to simply keep the library in order.  Of course, paying a librarian is something that I simply don't have funds for. I've been trying to get a local person to volunteer, but haven't succeeded yet. I know that in many fields, schools encourage their students to spend some time interning, as that gives them experience. Someone suggested that I contact you, if you might be aware of or possibly be able to help me find an intern and at the same time help us get our library together?

Thanks for your time and consideration.
Rabbi Polony Almony

Commentary:  There are many synagogues are in suburban areas 10 or more miles from urban centers with a large number of observant Jews.  Rabbi Almony has worked very hard over the past 20 years to establish a community with a building.  In the early years they had no set location. They have a kollel with several families who are part of the community and two commute more than 50 miles each way.  I am not totally sure what he means by “Talmudic law.”  Most yeshivot base their learning on the text of Talmud.  My synagogue has daily and weekly Talmud classes.   We also have classes in Jewish law.  While the Talmud may be the source of Jewish law, we don’t base our observance directly on the Talmud. We use later codes of law and legal opinions. These contemporary opinions make the principals for the Talmud relevant to our times.

Building a collection requires lots of work.  The process is not just ordering books from a store.  Collection building is a process of understanding your current and future audiences.  It requires understanding of the book trade, budgeting, and subject knowledge.  If the rabbi built a collection, then he is to be commended.  If there is just a bunch of book collected without a plan, then there is a problem. Material acquisition is a never ending task as new books are published all the time and the audience changes.

I really don’t understand his statement of applying bar codes to all the books.  A bar code is just a pointer to a catalog entry.  Without a catalog, the bar code is worthless.  The circulation system needs to query the bibliographic and patron databases to check out books.  Rabbi Almony does not say anything about non-book materials. Does the library have audio-visual items, periodicals, electronic books, or databases?

The part that really bothers me is the request for an unpaid intern.  The Rabbi contacted a library school in the same metropolitan area with the request.  The synagogue does not have a budget to pay the intern or even reimburse for travel expenses.  They expect someone to drive 20-25 miles each way for no pay.  I drive 15 miles and I don’t like to cost in time and money for the commute.  When I was in college I traveled 2 hours by public transportation for a teaching job, but I was paid.  I worked in an academic library for three years while in college and I was paid.  I was also supervised and guided by experienced librarians and teachers.

An intern not only should be compensated, but must work under the close supervision of an experienced professional.  The rabbi does not have that expertise. 

There is a place in a congregation or community for volunteers.  In small congregations volunteers do work that large congregations would hire someone to do.   In an informal poll many volunteers in my congregation put in 4-5 hours per week.  That translates to about $4000-5000 worth of services per year. 

There a place for volunteers in the library.  Volunteers do jobs that paid staff never gets around to doing.  In some libraries they run the friends of the library groups. They have to learn "first do, no harm."  They could give tours, help with promotional activities, work on programs, help supervise traffic, help check out books, etc.   Volunteers are very well meaning people, but they have limitations.  The biggest limit is time.  They will show up when they want and don’t have time conflicts.

What can Rabbi Almony do to get his congregation’s library in order? It is to his credit that he recognizes the need to organize the library to enable circulation.  They could have a fund raiser to higher a librarian who could supervise, but that is not in their budget.  Graduate schools will not allow an internship without supervision from a veteran professional.  If the student is going to earn credit, there has to be some learning involved and that usually means documentation and/or an academic paper.  The rabbi would not be able to perform this supervision or evaluation. Students and interns are learning how to be professionals.  

Emily Bergman in a September 3, 2014 posting to HaSafran, says that she is volunteer for her congregation’s library. That is her gift to the congregation. She has a full-time job as an academic librarian.  This kind of volunteer position is the only type I can condone.  Ms. Bergman makes it clear that this is her contribution.

Librarians are professionals.  I would not expect my car, my plumbing, my electricity, my roof, or my teeth to be fixed for free or by a volunteer intern. I would not want a medical student treating me without supervision.

Don't demean our profession.  Don't condone using volunteers for professional work.  It is hard enough to get people to understand that libraries don't get created and don't operate by magic.

There is a story -- A homeowner called for a plumber to fix his noisy pipes. The plumber arrived looked around for a few moments, asked a few questions, then took his hammer and hit a pipe.  He announced that he was done and prepared a bill for the homeowner.  The homeowner was thankful for the job, but didn't understand why a 2 minute visit cost $150.  The plumber apologized and changed the bill to:  $5.00 for the hammer stroke; $145 to know where to hit the pipe.

[1] Stuhlman, Daniel D.  “Professional Compensation”  in Librarian's Lobby July 2003  and   “Professional Preparation” in Librarian's Lobby August 2003.   
[2] For another opinion that supports the idea that libraries are not run by volunteers see:  “Please Don’t Say This to a Librarian” by Ingrid Henny Abrams written under the name magpielibrarian.  In the blog:  The Magpie Librarian: A Librarian's Guide to Modern Life and Etiquette (July 2012)   

Tags: #librarian  #judaica  #volunteers




 I don't usually like anonymous comments, but the comment below has nothing wrong with it.  I did fix the spacing and correct typos.  I do thank the writer for both agreeing and disagreeing.  My intent was to spark discussion.

Me has left a new comment on your post "Are you a volunteer?":

There is quite a lot I disagree with in here - and a lot I agree with. I do not criticize the rabbi for not knowing how a library works or what questions to ask. If libraries appear to run by magic, that's because of our professional skills - and those underlying skills and structures shouldn't be obvious. Credit to him for spotting that it doesn't work at the moment and for wanting to make improvements.

I hold up my hands and admit to being a volunteer, having retired from a long career as a professional bib services librarian. It's hard to give up the habit. I would never, ever, volunteer in an institution which should be paying professional staff - public libraries, academic libraries, government and corporate libraries should all be employing qualified staff and paying them appropriately.I absolutely do not condone volunteers being used to paper over the gaps caused by under-funding or because professional skills are not recognized or valued. And I have no respect for professional librarians who act as volunteers in institutions like these. However, there are other types of libraries which would close if volunteers did not keep them open and those libraries still have a valuable role to play for their communities.

I take no payment for my time or my skills, but I do get travel expenses - my one demand was that I should not be out of pocket as result of volunteering. But because I do not get paid does not mean that I am any less committed. I really am very weary of hearing the same criticism of volunteers, that you can't count on us. I am sure that some of us are unreliable, but so are plenty of employees.
The real danger with volunteers comes when they are managed by people who are not prepared to treat them in the same way as paid staff - by being clear about their roles and responsibilities, by reviewing their performance and making sure that they fit the library where they work and do what the service needs, and by providing training, encouragement and support.


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

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.