Netanel, “From Maimonides to Microsoft: The Jewish Law of Copyright Since the Birth of Print”

In March, Oxford University Press will release “From Maimonides to Microsoft:  The Jewish Law of Copyright Since the Birth of Print” by Neil Weinstock Netanel (University of California at Los Angeles School of Law). The publisher’s description follows:

Jewish copyright law is a rich body of jurisprudence that developed in parallel with modern copyright laws and the book privileges that preceded them. Jewish copyright law owes its origins to a reprinting ban that the Rome rabbinic court issued for three books of Hebrew grammar in 1518. It continues to be applied today, notably in a rabbinic ruling outlawing pirated software, issued at Microsoft’s request.

In From Maimonides to Microsoft, Professor Netanel traces the historical development of Jewish copyright law by comparing rabbinic reprinting bans with secular and papal book privileges and by relaying the stories of dramatic disputes among publishers of books of Jewish learning and liturgy. He describes each dispute in its historical context and examines the rabbinic rulings that sought to resolve it. Remarkably, the rabbinic reprinting bans and copyright rulings address some of the same issues that animate copyright jurisprudence today: Is copyright a property right or just a right to receive fair compensation? How long should copyrights last? What purposes does copyright serve? While Jewish copyright law has borrowed from its secular law counterpart at key junctures, it fashions strikingly different answers to those key questions.

The story of Jewish copyright law also intertwines with the history of the Jewish book trade and with steadfast efforts of rabbinic leaders to maintain their authority to regulate that trade in the face of the dramatic erosion of Jewish communal autonomy in the eighteenth and nineteenth centuries. This book will thus be of considerable interest to students of Jewish law and history as well as copyright scholars and practitioners.

Ahdash, “Copyright in Islamic Law”

In October, The Islamic Texts Society released “Copyright in Islamic Law” by Mohamed Ahdash (Muslim College, London). The publisher’s description follows:

Copyright in Islamic Law is the first work in English to systematically address the ideas of intellectual property and copyright from an Islamic perspective. The author builds a framework from within Shari’a law to address the concepts of intellectual property and copyright. In so doing, he adopts the classical usul al-fiqh approach by firstly defining the key terms associated with the field, namely: right (haq), ownership (milkiyya), wealth (mal), and utility (manfa’a). Dr Ahdash then analyses how these terms are used in the Qur’an and in the Hadith before looking at how the secondary sources of qiyas (analogy), maslaha (public interest), ‘urf (custom) and al-qawa’id al-fiqhiyya (legal maxims) can be applied to copyright. The result of this study is a framework wherein the concept of copyright is defined and understood in an Islamic manner. This then gives a consistent approach from which specific rulings can be derived. Copyright in Islamic Law is a ground-breaking study not only within Shari’a law, but also by making a contribution to the on-going debates on copyright in general.

Jenkins on Copyright Law and Political Theology

Joseph S. Jenkins (U. of California, Irvine) has posted Copyright Law and Political Theology: Censorship and the Forebear’s Desire. The abstract follows. NB: The article is behind a paywall on JStor.

This historical exploration, treating limit moments of copyright law, illuminates correspondences among copyright, censorship, pacts between the sovereign and commercial profit seekers, and inheritance law. Relevant to all of these are powerful forebears’ desires for recognition, modeled on the theological pattern of the father God’s omnipotent Will. Failure to recognize the wide persistence of this premodern theological pattern–which contrasts considerably with the common view that copyrights main function is to incentivize the new–may result in faulty analysis of copyright law, including fair use.

The study begins with Henry VIII’s 1538 Proclamation, which initiates a nationwide book-licensing regime. The Proclamation is put into context with other concerns of Henry at that time. Additional moments treated in this study include: Venetian printing privileges in the late fifteenth century; the London Stationers’ Company as an incorporated mechanism suitable to the crown’s ideology-control projects; efforts by Ponsonby, Greville, and Walsingham to block a competitor’s licensing of a Sidney Arcadia manuscript; the intellectual property clause of the U.S. Constitution; Wordsworth’s later-in-life attempts to make endure eternally, through copyright, the atemporal moment of creation that arose from his early poetry; and Sonny Bono’s (and our own) surprising resemblance to Wordsworth. The conclusion urges joint consideration of copyright and inheritance-law policies.

Kwall on Copyright Law and Jewish Process Theology

Roberta Rosenthal Kwall  (DePaul U. College of Law) has posted The Lessons of Living Gardens and Jewish Process Theology for Authorship and Moral Rights. The abstract follows.

This Article examines the issues of authorship, fixation and moral rights through the lens of Jewish Process Theology. Jewish Process Theology is an application of Process Thought, which espouses a developmental and fluid perspective with respect to creation and creativity. This discipline offers important insights for how to shape and enforce copyright law. The issue of “change” and authorship is more important now than ever before given how the digital age is revolutionizing the way we think about authorship. The Seventh Circuit’s recent decision wrongly maintaining that a living garden is not capable of copyright protection since it is unfixed, changeable and partially the product of non-human authorship illustrates the need for interdisciplinary guidance with respect to copyright law and policy.

Sweden Recognizes File Sharing As a Religion

Earlier this month, Sweden’s Legal, Financial, and Administrative Services Agency, the Kammarkollegiet, recognized a new religious organization, the Missionary Church of Kopimism. Kopimism – the word derives from “copy me” – is, according to the church’s website, a comprehensive philosophy of life “animated by the desire to be copied and copy.” Its spiritual leader is 20-year old philosophy student Isak Gerson. Kopimism is non-theistic, but it has “priests” and axioms of faith, including the belief that file sharing is “sacred” and the internet “holy.” Followers are called to live their lives according to Kopimist values, encapsulated in this basic creed: “From all to one and from one to all – and then back again – exchange without beginning and without end.” (Kopimism is not big on copyright laws). The fact that it is now a registered religion means that Kopimism can apply for government subsidies and permission to conduct marriage ceremonies.

Western legal systems, including the American, have had a notoriously hard time coming up with a workable definition of “religion,” one  comprehensive enough to cover the variety of human religious experience but narrow enough to be meaningful. Judges have used substantive, functional, and analogical tests. I’m not sure which the Kammarkollegiet uses. Frankly, though, it’s hard for me to see how Kopimism would qualify as a religion under any of these approaches. The Kopimists themselves seem to endorse the analogical approach: although many Swedish Christians condemn Kopimism as a joke, they say, Kopimism actually resembles traditional Christianity, whose monks understood the value of copying and disseminating information. No word yet whether Kopimism’s American branch will seek a religious exemption from SOPA, the proposed Stop Online Piracy Act.

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