# Primary Sources on Copyright - Record Viewer
Schmelkes Responsum, Przemysl, Austrian Galicia (1899)

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Schmelkes Responsum, Przemysl, Austrian Galicia (1899), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

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            Chapter 1 Page 2 of 3 total



Blessed be God, Przemsyl, “I shall be like dew for Israel” [Hosea 14:6].

Greetings to the sharp, famous Esteemed Rabbi, Simon Sofer, may his candle enlighten us, the presiding judge over the holy congregation of Erlau [otherwise known as Eger, a town in northern Hungary].
Regarding the question [posed by Simon Sofer]: When a deceased author has left behind a manuscript of innovative commentary on Jewish law sources, may another person copy and print that work without the heirs’ consent when the manuscript was already copied during the author’s lifetime, or would such copying and printing without permission be a kind of misappropriation?

Response: Behold, his Honorable Holy Torah [an honorific, referring here to Simon Sofer], has likened the right to print to a personal benefit, and as the Rema [Rabbi Moses Isserles] explained [in his commentary on the restatement of Jewish law, the Shulḥan Arukh], a personal benefit is not inheritable. However, in the words of Siftei Cohen [a seventeenth-century commentary on the Shulḥan Arukh], if the item is already in the hands of the heirs, then they do hold legal rights, and in this way, a personal benefit may also be descendible….

As I see it, because the manuscripts truly belong to the heirs, they may certainly object of another person wishes to copy them. Hence this no room for doubt that another may not copy without the heirs’ permission, unless he already copied the manuscript during the author’s lifetime or previously without the heirs’ knowledge. In that regard, it does not matter whether the person heard the author’s orally or saw them in writing, since if someone hears Jewish teachings, it is permitted to teach them to others and to publish them, so long as that is done in the same of the person who uttered them. And if thousands and thousands of students are listening to their teacher, why, if one of them saw the teachings in writing, should he be unable to publish them in his teacher’s name so that he may disseminate the teachings to the world?

Yet we must distinguish the cases. When one has heard an oral teaching from another person, if the teacher did not tell the listener that it is prohibited to convey the teaching to others, it should be assumed that the teacher is indifferent to whether others disseminate it. But where the teacher told his listeners that they should not disseminate his oral teaching to others, the listener is certainly prohibited to tell others. The reason is that the teaching and innovative commentary are the teacher’s, and the teacher may say, “I want to tell only you, not others.” However, aside from the situation in which a teacher explicitly prohibits others to convey his teaching, it is permitted for those who hear it to disseminate it to others. In such a case, the listener is actually fulfilling a divine commandment to spread Jewish learning.
Further, if a person copies an author’s manuscript with the author’s permission, and the author does not explicitly tell him that the manuscript may not be shown to others, the author surely agrees that the person who copies his written teachings will share them with others. In such a case, therefore, the law is that the person is allowed to print the work. Nevertheless, when a person copies written teachings without their author’s knowledge or without the knowledge of the author’s heirs, there is room for doubt whether such copying and printing would be permitted.

Behold, we learn from the Rema [Moses Isserles] in his commentary on the Shulḥan Arukh … that if one entrusts books of Jewish law and learning to a rabbinic scholar, the scholar is permitted to read and copy from them because, certainly, this must have been the purpose of so entrusting the books. And Siftei Cohen commented that such reasoning might be the same as that of the rabbinical gloss on Proverbs: “They will not despise the thief if he steals.” For one should not despise another who steals works of Torah and copies them…..
Thus, we see clearly that it is permitted to copy from another’s books and thereby to teach others. And, apparently, the same law applies to copyright from an author’s manuscripts. It is permitted to copy and print them.

However, one must distinguish between [the first situation] whereby [a person] copies from published books and there is no damage, so that [the well-known rule of] “one has a benefit and the other does not lose anything” applies and a rabbinic court has authority to compel a person to refrain from adopting the character traits of the inhabitants of [the wicked city] of Sodom [who committed the sin of greed]. [Nonetheless, this rationale] is not applicable [in a case where a person] copies a manuscript [belonging to the author’s heir] or to his father, because in such a case [the author or his son the heir] is certainly entitled to object and also to object to the printing [by someone else], because [where we are dealing with the heir] his father has left him teachings of Torah and to print them is to fulfill a divine commandment. Thus, the heir can say “I wish to fulfill the divine commandment of spreading teachings of Torah.” Moreover, if [publishing the work would also have possible] economic benefit, the heir is entitled even more so to object and claim the legal right to the manuscripts and the economic appreciation of the manuscripts, because an heir is entitled to inherit the enhanced value of an asset….

Ultimately, I conclude that even if the author permitted [another] to copy some of his works during his lifetime, it is forbidden [for the latter person] to publish them without the consent of the author’s heirs because we assume that the author allowed [the other person] to copy [the manuscripts] for the sole purpose of enabling his own personal study, not in order to spread [the written teachings] all over the world. It is [also] in the nature of things that an author’s heirs print and publish their father’s work. If another person may print the work, the heirs will not be able to do so, because they would risk incurring the expense of printing only to face economic loss, despite their status of being the author’s heirs, when someone else comes along to print and sell the books. Moreover, another [printer] might only partially print [the teachings] and omit a portion of the works. Thus, there is an assumption [that that the author did not allow the other person to publish any manuscripts], especially when the book and the manuscripts have monetary value - like currency bills, that may be inherited - and the same law applies to manuscripts. And it is certainly forbidden for the other person to copy the manuscripts and print them without the consent of the author’s heirs. Indeed, [even] if the author has already printed his book, so long as he has not sold his books, it is surely forbidden for another person to reprint [the book and thus cause] economic loss to the author or his heirs.




    


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