The case of the 2000 year-old copyright
JERUSALEM -- The document at the heart of the appeal which reached the
Israeli Supreme Court last month could hardly have been older --- a Dead Sea
Scroll written about 150 BCE.
But what drew the attention of the international legal community to the case was the likelihood of a precedent-setting ruling on that most modern of legal concepts ---
intellectual property rights.
At issue were the rival copyright claims of an Israeli scholar who
had spent 11 years reconstructing the tattered scroll and a Washington
publisher who maintained that copyright died with the scroll's author some
2000 years ago.
The badly fragmented document was among the Dead Sea Scrolls found
a half-century ago. Even when pieced together, great chunks of the text were
missing. For three decades the document remained undeciphered.
In the early 1980s, a young Israeli scholar, Elisha Qimron,
undertook the job. The painstaking task involved not only reading the often
obscured script but filling in the gaps, about 40 percent of the original
text, with conjecture about what had been written. This educated guesswork
was based on Qimron's intimate knowledge of the language and concepts of the
Dead Sea sect and of a broad spectrum of relevant Jewish writings from
antiquity.
It took him 11 years but his reconstruction showed the document to be
one of the most important of the Dead Sea scrolls, a letter that may have
been written by none other than the founder of the Dead Sea sect, the
Teacher of Righteousness. The letter cites the practices and beliefs that
set the sect apart from mainstream Judaism. The name Qimron gave it was
Miktzat Ma'aseh haTorah (Some of the Precept of the Torah), a phrase used in
the letter. In short, MMT.
Before publishing his reconstruction, Qimron sent copies to four
colleagues abroad for comment. Bootleg copies were Xeroxed and
circulated without Qimron's knowledge. One was published in a Polish
scholarly newsletter. Subsequently, Washington publisher Hershel Shanks
published MMT in an archaeology book without crediting Qimron with the
reconstruction.
Infuriated, Qimron sued. In Jerusalem District Court, his lawyers
claimed infringement of Qimron's copyright to MMT. "These people did it
because they thought I wouldn't sue," said the scholar. "They're rich and
influential people and they don't fear me."
Shanks, who publishes the popular glossy, Moment, told the court that he had been unaware that the document was a laborious reconstruction. However, when asked whether he would have
published it even if he had known, he replied "correct". The judge ruled in
Qimron's favor and obliged Shanks to pay damages.
A Supreme Court ruling on whether copyright can apply to a
reconstruction, not only to an original work, is a precedent that could be
cited in foreign courts as well. At the hearing on Shanks' appeal, an
attorney representing the Committee of Concerned Intellectual Property
Educators, an American organization, asked for permission to submit a brief
as amicus curiae, a friend of the court.
Shanks' attorney, Prof. Dov Frimer, contended that the lower court
ruling has induced a "chilling effect" on scholarship by inhibiting the
give-and-take of academic research with copyright restrictions. An
associate, Yanina Hoffman, argued that Qimron had not created anything
original. "There is no authorship here," she said in an interview. "He
discovered facts. He had to have the skill and knowledge to know where to
look for the clues but he didn't create what the clues led him to. Another
scholar with the same knowledge would have arrived at the same facts."
Qimron's attorney, Jakob Melcer, suggested to the court an
hypothesis in which a Latin translation of the original letter had been
found, including the parts missing from the Hebrew text. "If Qimron had only
filled in the missing parts by translating back from the Latin version into
the Hebrew used at Qumran -- and he's the world's leading expert on the
language and grammar of the Dead Sea sect -- he would be entitled to
copyright because translations are entitled to copyright. But what he
actually did, recreating the missing parts from nothing, was incredibly more
creative."
The Supreme Court is to decide within a few months whether Qimron is
entitled to copyright to MMT or whether copyright, long lapsed, should
remain with the Teacher of
Abraham Rabinovich is JWR's Israel Correspondent.
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