Copyright with Seforim
Question:
I bought a Sefer (with illustrations) for my class and copied part of the pictures into a workbook for the class’s use…
I also wanted to post this work on a website to make it available to all teachers. I contacted the publisher to ask permission and he said no (not even for pay). He said I can’t even copy it for my own classroom use. Is he entitled to make these restrictions 1) for my classroom use 2) for publicity on the website (both not for money)?
Answer:
The concept of ownership over intellectual property is debated in the Poskim and the general consensus is that when a publisher puts out a new book or invention, he has the right to it forever and no one may reproduce it without his permission. Many different reasons are offered to explain this halachic concept. The secular copyright laws can also apply, להבדיל.
In the case of the illustrations particularly, since it’s not Torah thoughts but illustrations there is more reason to prohibit reproduction. Certainly, the publisher has the right to restrict others from using them without permission. Even for classroom usage one would need their permission.
Sources:
Shoel Umashiv 1:44. Minchas Yitzchak 9:153.
See also Shayla Vetshuvos Tzemach Tzedek (Y.D. 195).
Question 2:
Would it make a difference if every boy in the class purchased the book? Does that give them the right to get it in another version, I.e. copied (despite the publishers restriction)? Also if I may ask, what I understand from the Mareh Mekomos you provided, the copyright issue discussed is regarding reprinting and reselling someone else’s work, but in my case 1) it is only a part of the book and the pictures are very small, 2) the boys buy the book (and my printing these pictures doesn’t affect their decision in any way) so he is definitely not losing customers. (What can be the Hasagas Gvul? Isn’t it Zeh Nehne V’zeh Lo Chaser?) , and 3) I’m not selling it.
Answer 2:
According to the Shavet Halevi 4:202, one may be lenient to copy segments from Seforim when it is solely for personal usage in a classroom in order not to cause each student to purchase many different books. This is even if it would prevent the publishers from certain sales. In practice, however, according to many poskim, the writer has an actual ownership in his writing, thus it is an issue of gezel (not just due to takana, dina dmalchusa, or general obligation to pay when benefiting). This appears to be the view of the Tzemach Tzedek as well. Accordingly, since ownership rights applies to all intellectual properties, it is forbidden to reproduce them if it causes loss or a potential lack of profit to the publisher.
In this case where there is no loss of profits to the publisher, for it does not make sense that the entire class will purchase a second time for a different usage of the same product, there should be no concern.
This is specifically the case if in the Sefer it does not say that the publisher forbids to reproduce the book even for personal usage. This is also the widespread custom. Even if the owner states afterwards that this was the original intention, he cannot stop someone from doing so, since he already sold it. It would also be considered Midas Sdom. I am under the impression that even secular law does not forbid producing only a small segment of a book for personal usage.
Sources:
זכויות יוצרים – שו”ת צמח צדק חו”מ ע, ט. שער המילואים ח”ד קמב.
בדיני מקח וממכר – הכל כמנהג המדינה.
דין אבידה מדעת – אדה״ז מציאה ופקדון טז. וראה משנת זכויות היוצר ו, ו. עמק המשפט ח״ד לח, פג.
מדת סדום – ברמ”א סי’ שסג ס”ו.
וראה גם בהנ״ל שו”ת רבבות אפרים ז, שי. נשמת אברהם ד ע’ רו. ציץ אליעזר יח, פ.
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