Is Copyright Property? The Debate in Jewish Law

Theoretical Inquiries in Law, Vol. 12, No. 1, 2011

UCLA School of Law Research Paper No. 10-12

30 Pages Posted: 27 May 2010 Last revised: 21 Sep 2010

Neil Weinstock Netanel

University of California, Los Angeles (UCLA) - School of Law

David Nimmer

Irell & Manella LLP

Date Written: May 25, 2010

Abstract

Is copyright a property right? That question raises a host of thorny theoretical issues regarding the foundational underpinnings of both copyright and property. The notion that if copyright is “property,” it will or should resemble a perpetual, absolute, pre-political property right, has repeatedly infused judicial proceedings, legislative enactments, and public debate in both common law and civil law countries as well.

Like their common law and civil law counterparts, Jewish law jurists have engaged in protracted debate about whether copyright is a property right. Recent decades have seen numerous rabbinic court decisions, responsa (rulings in disputes or advisory opinions coupled with a lengthy exegesis on Jewish law in answer to questions posed), scholarly articles, and blog entries on such issues as whether it is permissible, without license from the author or publisher, to republish a book after the rabbinic printing privilege has expired; to copy and distribute software or sound recordings; to perform music in wedding halls; to make copies for classroom use; and to download songs from the Internet. And like in secular law, but for somewhat different reasons, the characterization of copyright as “property” has significant doctrinal consequences for resolution of these controversies in Jewish law.

There are numerous, and at times profound, differences in the terminology, form of argument, doctrinal specifics, and overarching legal framework of Jewish law and secular law in this area and others. Nonetheless, the arguments within the Jewish law debate have some intriguing parallels with those of secular law copyright. In fact, one finds the direct, if largely unstated, influence of secular copyright just below the surface in the debate about whether copyright is property in Jewish law.

Keywords: copyright, halakha, Jewish law

Suggested Citation

Netanel, Neil Weinstock and Nimmer, David, Is Copyright Property? The Debate in Jewish Law (May 25, 2010). Theoretical Inquiries in Law, Vol. 12, No. 1, 2011; UCLA School of Law Research Paper No. 10-12. Available at SSRN: https://ssrn.com/abstract=1615849

Neil Weinstock Netanel (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States

David Nimmer

Irell & Manella LLP ( email )

1800 Avenue of the Stars, Suite 900
Los Angeles, CA 90067
United States
310-277-1010 or (310) 203-7079 (Phone)

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