Primary Sources on Copyright (1450-1900)
Commentary on Shchmelkes Responsum (1899)
Neil W. Netanel
School of Law, University of California at Los Angeles, USA
1. Full title
Responsa Beit Yitzhak, Yoreh De'ah, Part 5, No. 75 (1899)
Yitzhak Schmelkes (1828-1906) sharply criticized Joseph Saul Nathanson’s recognition of authors’ perpetual property rights in their original works and posited that rabbinic courts must respect authors’ rights under secular law.
3. Schmelkes Responsum
Yitzhak Schmelkes (1828-1906) was the head of the rabbinic court of Przemysl, in Austrian Galicia, in the late nineteenth century. A native of Lemberg, Schmelkes had been a student of Joseph Saul Nathanson (1808-1875). Nathanson’s 1860 seminal Ruling in Matter of Yoreh De'ah appears, together with Commentary, in the Jewish Law section of Primary Sources on Copyright. In that ruling, Nathanson posited that authors have perpetual property rights in their original works. In turn, Schmelkes authored two influential responsa that were sharply critical of Nathanson’s recognition of perpetual author’s rights.
Schmelkes held that an author’s heirs have the exclusive right to publish their father’s yet unpublished manuscript. Indeed, Schmelkes posited, even if the author printed the book in his lifetime but has yet to sell his first printing, it is forbidden for another person to reprint the book and thus cause economic loss to the author’s heirs.
In sharp contrast to Nathanson, however, Schmelkes’s recognition of an exclusive right in the author’s heirs is limited to the right to print manuscripts and reprint books that have not yet been sold. But if the author has already sold his books, the situation is entirely different in Schmelkes’s view. When copies of an author’s book have been printed and sold, the author has already made his views public. Other people are then freely entitled to learn from and teach them. In Schmelkes’s view, moreover, once the author has sold his books, the rabbinic principle of “the jealousy of scholars increases wisdom” dictates that another may bring benefit to the people of his generation by printing and selling more books with the same content, but for a cheaper price. Once the author has recovered his initial investment, competition in publishing the book enhances the dissemination of Jewish learning.
As to Nathanson’s holding that authors have a property right under Jewish law, Schmelkes stated: “With all due respect …, I see no proof for this opinion.” To the contrary, once an author has sold his first printing, he must share his knowledge freely rather than attempting to profit from it. “For the Torah is compared to water, from which one may draw freely without charge.”
Schmelkes did recognize that authors and their heirs may have rights under secular copyright law that rabbinic courts must respect. He states that “under the Jewish law principle of ‘the law of the sovereign is the law,” even when the secular law runs contrary to the Torah [i.e., the fundamentals of Jewish law], we must defer to secular in commercial matters unless doing so would impose an economic loss.”
Notably, both Nathanson and Schmelkes looked to secular copyright law for a means by which authors and publishers of books of Jewish learning could have recourse to rabbinic authorities for protections against reprinting. Yet, the two rabbinic authorities took diametrically opposed positions on the role of secular copyright law in that endeavor. Nathanson rejected Shmuel Valdberg’s earlier ruling that, in the absence of an enforceable reprinting ban, an author and his assigns have rights only under secular copyright law. Instead, Nathanson took inspiration from secular copyright’s recognition of an author’s right of literary property and incorporated that principle into Jewish law. In contrast, Schmelkes gave recognition to secular copyright law without incorporating it into Jewish law per se. For him, the right to prevent reprinting even after the author had sold his initial print run lay only in secular law. And it was only by virtue of the Jewish law principle, the law of the sovereign is the law (together with the associated custom of respecting secular copyright law), that Jewish law would accord protection against such reprinting.
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. 215-235.