Primary Sources on Copyright (1450-1900)
Commentary on Rabbinic Reprinting Ban for Eliyahu Bakhur, Rome (1518)
Neil W. Netanel
School of Law, University of California at Los Angeles, USA
1. Full title
3. Jewish Law and Rabbinic Courts: General Introduction
4. Background and Context
5. The Rabbinic Court’s Ruling
6. Adopting the Model of Papal and Venetian Book Privileges
Decree of Rome Rabbinic Court
The first rabbinic reprinting ban of which we have record. The rabbinic court of Rome issued a decree forbidding reprinting any of three books of Hebrew grammar anywhere in the world, for a period of 10 years, without written permission from their author or publisher. The court also prohibited knowingly purchasing such a reprinted copy. The reprinting ban was most likely modeled on papal and Venetian book privileges, with which the rabbis were familiar. Yet it is also contains features unique to Jewish law.
3. Jewish Law and Rabbinic Courts: General Introduction
With ancient roots in the Bible and Talmud, Jewish law governed much of the commercial, social, and ritual life of Jewish communities for well over two millennia. Although Jews lacked political sovereignty for most of that period, the royal and feudal powers in the lands where Jews were permitted to live typically granted the Jewish community a considerable measure of self-governing, juridical authority. In accordance with their royal charters and feudal privileges, Jewish communities established governing councils that both represented the Jewish community before the sovereign power and enacted ordinances governing much of the community’s internal life.
Although the governing councils came to be headed by lay notables, they were heavily dependent on rabbinic leaders, who enforced and gave imprimatur to community ordinances, ruled on questions of Jewish law, issued decrees and regulations, and settled disputes. Indeed, rabbinic courts held juridical authority, backed by the secular sovereign power, to hear and rule on disputes between Jews. Rabbinic decrees were typically enforceable by some combination of censure, social ostracism, and excommunication.
Importantly, rabbinic authorities have opined and issued rulings on Jewish law in a highly localized manner. Not since the first millennium of the Common Era has there been a central rabbinic judicial body carrying authority to settle conflicting precedent throughout the Jewish world. Since the demise of the Baghdad gaonate in the eleventh century, Jewish law has evolved from a myriad of disparate, if often mutually referential, local rabbinic decisions, pronouncements, and ordinances. The temporal and geographic impact of any given rabbinic ruling depends on the esteem, intellectual prowess, force of argument, position, and, at times, sectarian affiliation of its author, not any formally established judicial hierarchy. Indeed, rabbinic courts are generally understood to lack authority to issue enforceable rulings governing conduct outside the territory of their local jurisdiction. Jewish copyright law emerged and evolved accordingly—through the discursive exchange of a dispersed community of rabbinic scholars, rather than an encyclical of a central authority.
4. Background and Context
The illustrious rabbinic scholar and Hebrew grammarian Eliyahu Ha-Levi Bakhur (1469–1549) personified the eclectic intellectual crosscurrents of his time. Bakhur gained fame—and, in some Jewish circles, notoriety—for tutoring prominent Christians in the ways of Jewish mysticism and serving as lead editor in prominent Christian Hebraicist printing establishments.
In 1518, Bakhur was granted a papal “gratia e privilegio”—printing license and privilege—for three books of Hebrew grammar on the condition that he have them printed at the shop of a Christian printer in Rome. As was typical of sixteenth-century papal book privileges, the papal decree purported to forbid reprinting the books not just in Rome, but throughout all of Christendom. Yet, Bakhur was not content to rely on the papal privilege’s capacious reach. He also successfully petitioned a rabbinic court in Rome for a decree, directed at Jews, forbidding reprinting of his books without his or his publishers’ permission.
Hebrew-language books of Jewish learning had begun to appear in print as early as 1470. By 1518, over 250 such Hebrew titles had been published. Nonetheless, the decree that the Rome rabbis issued in favor of Elihayu Bakhur and his publishers was the first rabbinic reprinting ban of which we are aware. Even following that decree, it took several decades for the practice of issuing reprinting bans to take hold in the Jewish world. Yet in the ensuing centuries, rabbinic authorities came to issue thousands of such bans, typically as part of a “haskama,” a rabbinic approbation consisting of a statement of imprimatur and praise for a particular book. To this day, leading rabbis in Israel and the Diaspora continue to issue haskamot and reprinting bans providing for exclusive rights to copy and distribute books, sound recordings, databases, and videos that present rabbinic commentary, foundational texts of Jewish law, ethical lessons, homilies, and liturgy.
The rabbinic court of Rome issued a decree forbidding reprinting any of three books of Hebrew grammar anywhere in the world, for a period of 10 years, without written permission from their author or publisher. The court also prohibited knowingly purchasing such a reprinted copy.
The decree begins with words of praise for Eliyahu Bakhur and his publishers, and a statement lauding the useful of the books. The court also recognizes the “effort and labor” and the “many days” that Bakhur devoted to authoring the book and refers to “the considerable sums expended” by his publishers. The court then continues:
“Perchance there is a stock sprouting poison weed and wormwood” [i.e., an evil actor] who, in his heart, is planning that he, too, will print one or all of the aforementioned works in a more attractive printing, and as a result Rabbi Eliyahu and the aforementioned brothers will find themselves in the situation of having acted nimbly, and yet having lost. Therefore, we take the initiative to stand against such vandals.
The court also sets out the doctrinal basis for its ruling: the passages from the Talmud that constitute the foundation for the Jewish law prohibition against wrongfully encroaching upon another’s livelihood. As recited by the court one such Talmudic passage states: “If a poor man is reaching for a crust of bread and another comes and seizes it, that person is called a wicked person.” And another: ““One [who wants to spread a fish net] must distance himself from a fish [that another fisherman has staked out with his net] by the full distance that a fish swims, since [to do otherwise] is encroachment upon another’s livelihood.” In light of those precedents, the court rules: “It is certainly the case … that when one has taken pains and labored, and another encroaches upon his livelihood, that person is an actual misappropriator.”
In the sum, the Rome rabbinic court applied to the book trade the Jewish law of wrongful competition. The ruling poses a number of conceptual difficulties and questions regarding its applicability to other cases. First, despite some debate on the matter, rabbinic authorities generally favor competition on the grounds that it benefits consumers, even though competition might make it more difficult for suppliers to earn a livelihood. Accordingly, rabbis have long debated what it is about the classic Talmudic cases that renders some competition wrongful encroachment. The Rome rabbinic court concludes that the author’s expenditure of time and labor and the publisher’s expenditure of money in printing a book renders another’s reprinting without permission within the ten-year time period wrongful encroachment, and, indeed, an actual misappropriation. But aside from citing the Talmudic precedent, it does not explain why someone who is willing to invest even in a “more attractive printing” should be forbidden from doing so. Subsequent rabbinic authorities have grappled with and debated that question.
Second, the worldwide reach of the rabbinic decree lacked a firm foundation in Jewish law. Under long-established rabbinic precepts, extending back to the demise of the Baghdad gaonate, no rabbi had the authority to issue rulings binding upon all the Jewish people. Even rabbinic authorities of great stature had no power to rule outside their local community, but rather had to garner wider acceptance for their rulings through the power of their reasoning and the respect accorded to them. Certainly, rabbis were generally understood to lack authority to issue an order of excommunication against a person in another territory.
Even beyond this territorial constraint on rabbinic authority, the substantive rule protecting an individual against another’s encroachment upon his livelihood was itself limited to that individual’s territory. Prior to the Rome rabbis’ decree, rabbinic jurists had never recognized, or even considered, a craftsman’s right to prevent competition outside his local market. Certainly, the paradigm cases upon which the Jewish law of wrongful encroachment rested all involved the physical proximity of competitors engaged in premodern commercial enterprises that were tied to a particular geographic location. As introduced in the Talmud and subsequently debated, elucidated, and reformulated in later generations, the putatively wrongful competitor is one who sets up a mill in the same alleyway as the incumbent, spreads his net to seize fish that another fisherman was poised to capture, or grabs a crust of bread just as a poor man extends his hand to take possession of it. In certain circumstances, a resident of another city who comes to compete in the incumbent’s neighborhood also commits wrongful encroachment. But in no instance does a person commit a wrongful act by selling the same type of good or engaging in some other commercial activity in a different city—just as a fisherman does not wrongfully encroach by spreading his net the requisite short distance away from the first fisherman, even if both are then competing for the same school of fish.
The Rome rabbis justified the worldwide reach of their reprinting ban with the practical argument that, unlike traditional sources of livelihood, “printed books travel from sea to sea.” Following the Rome rabbinic court, rabbinic reprinting bans often purported to apply throughout the world. And in that respect, rabbinic reprinting bans had advantages for Hebrew book publishers over book privileges issues by a secular authority, such as the Venetian Senate, that had force only within the territory under that authority’s dominion.
In the early nineteenth century, however, many rabbinic authorities began to assert that reprinting bans, like other rabbinic decrees, could only have affect in the territory where issued. As some spelled out explicitly, there were pragmatic reasons for (re)imposing such territorial limitations. Following the partition of Poland, the Jewish world was divided among Russia, Prussia, and Austria, each of which imposed sharp restrictions on importing Hebrew books. Accordingly, as some rabbis recognized, it only harmed the Jewish community to prohibit reprinting books of Jewish law, liturgy, and learning in a foreign country when the publisher was, in any event, unable to ship his books to that country.
The Rome rabbinic court most likely adopted the model of book privileges with which the Rome rabbis were familiar, even if the rabbis infused their decree with numerous references to Biblical and rabbinic sources and set forth a doctrinal basis, in Jewish law, for prohibiting reprinting. By 1518, book privileges had already played a prominent role in the early modern book trade, centered in Italy, for some three decades. Indeed, just three years earlier, the Christian Hebraicist Daniel Bomberg, a leading publisher of Hebrew books of the day, had been awarded a 10-year papal privilege for his monumental four-volume edition of the Hebrew Bible with Rabbinic Commentaries, and had then successfully petitioned the Venetian Senate for an exclusive 10-year privilege to print any book in the Hebrew language. Further, as noted above, Eliyahu Bakhur had received a papal privilege for his books before he petitioned the rabbinic court for a rabbinic reprinting ban.
A careful reading of the Bakhur ban strongly suggests that in crafting their decree the Rome rabbis drew specifically upon the book privileges with which they were familiar. The most obvious example is the rabbinic ban’s 10-year term. Despite some variation, the 10-year term was standard for those issued by the Venetian Republic and the Holy See in the early sixteenth century. In contrast, in other locations, notably France and the Holy Roman Empire, shorter terms were more common.
The fact that the Bakhur ban equally protects the author and his publishers also parallels the book privileges of the era. The book privileges served primarily to protect the publisher’s economic investment, and were typically granted only to the publisher (even if in the latter half of the sixteenth century, the Holy See granted many privileges to authors as well, particularly Jesuit priests and creators of graphic prints). The same was true of rabbinic reprinting bans, which only occasionally were awarded to an author of a new work in the author’s own name. Indeed, like book privileges, rabbinic reprinting bans were often issued for print editions of centuries’ old manuscripts, as well as for successive editions of previously printed books. Although the Bakhur books were newly authored, the Rome rabbis awarded their ban not just to Bakhur but also to his publishers, and made clear that either party could give written permission to another person to reprint the books.
Finally, in extending their ban beyond any territorial borders, the Rome rabbis likely looked to the example of papal privileges, which typically asserted that they were enforceable throughout the Christian world.
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. 49-63.
For an illuminating study of papal book privileges, see Ginsburg, J. 2013. Proto-Property in Literary and Artistic Works: Sixteenth-Century Papal Printing Privileges, Columbia Journal of Law and the Arts 36:345-78.