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Tevet 3, 5774

Photocopying = Theft?


Rabbi David Sperling

Question:
If one photocopies sections of a book which they do not own (e.g. borrowed from a friend or the library), is it considered stealing? Does it depend on how significant/lengthy the portion being photocopied is? If so, where does one draw the line? Can you copy even one page? Can you copy 49.9%?

Music piracy is known to be a halachic issue, and this would seem like a comparable situation.

(Please assume that the book is being utilized for one’s own personal enjoyment and not within an educational setting, where reproduction of copyrighted works is more clearly permitted)

The question would seem especially significant in a book that comprises individual sections which are independent of one another (e.g. a cookbook of recipes or a book of short stories), since, if someone copies a section they have captured an entire recipe/story/etc. for free.

That being said, one could easily have written down a recipe/short story by hand without any apparent halachic issues, so it would be hard to imagine how the mere act of photocopying that same information would distinguish the act as non-permissible!

Thanks,

Answer:
Shalom,
Thank you for your interesting question. The halachic material written about copyright laws is vast – and in this forum I will not be able to do it justice. However let me start by saying that there is a basic question that arises when dealing with copyright (which the secular law also grapples with). If someone were to make a chair, say, and then someone were to steal it, it would be very easy to pin down the laws that were broken – theft. This is because the object (the chair) was in the possession of the manufacturer, and has now been stolen by the thief, and is in his hands. What if ,however, someone were to write a poem and then print it? If someone were to steal the printed page, the laws would follow the case of the stolen chair. But when someone copies the page, the original has not been stolen at all. What has been taken here? The typesetting, the layout, the words, the idea? How much protection does the original author have? If one is not allowed to photocopy the page, may they copy it by hand (as you ask), or even recite it out loud to others?

Rabbis have grappled with this problem since the beginning of the modern era (especially since printing became widespread) – as too have the secular courts and lawmakers. Some Rabbis use the halachic concept of "hasagat gevul" -- unfair competition to deal with this issue. These laws defend a worker's right to protect his efforts to make a living. Though this will mainly forbid copying that causes people to not buy an original, and will allow copying where one would not have purchased the original in any event.

Another approach used in the past was "haskamot" – approbations. If you look in the first pages of many old books, you can see letters from great rabbis of the times prohibiting other publishers from reprinting the work for a set period of time (say five years), under the threat of excommunication. This type of ban will also be limited in its force depending on its wording.

The strongest halachic claim to enforce copyright is "dina d’malkhuta dina" -- secular law. Where secular law does not run counter to Jewish law, we are obligated to follow the secular law also. (Though this is a large topic in and of itself). Because copyright laws are written into nearly every country's legal system (and international law), we are bound by the secular law. According to this approach, the answers to your questions are best found with a good copyright lawyer. I have been informed that copyright laws are some of the most complex parts of commercial law there are.

Some rabbis have put forward a suggestion that copyright may be achieved in halacha through the use of "shiur b’kinyan" -- withholding the right to copy. This idea is based on the concept that when selling an object the seller may retain certain rights in the product being sold – such as the right to copy it. This method is also limited, and must be clearly stated before the first sale takes place.

As I said, there are varying opinions on this subject. My view is that you are bound by the law of the land, and whatever is allowed (and forbidden) in secular law, holds true for the religious law in this case.

Here are some further sources for you –
Hebrew:
-- Teshuvot Rema #10
-- Teshuvot Chatam Sofer Choshen Mishpat #79
-- Rav Zalman Nechemia Goldberg, “Copying a Cassette Without the Owner’s Permission,” Techumin 6, pp. 185-207
English:
-- Rabbi Israel Schneider, “Jewish Law and Copyright,” Journal of Halakha and Contemporary Society, available at http://www.jlaw.com/Articles/copyright1.html
-- Rabbi J. David Bleich, “Copyright,” in Contemporary Halakhic Problems pp. 121-130.

Blessings.



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