THE DEAD SEA SCROLLS
PLEASE
NOTE:
This
is an unofficial translation of the Dead Sea Scrolls case, decided by the
Israeli Supreme Court on August 30, 2000. I omitted few paragraphs that deal
with procedural matters. The footnotes explain the holding in those paragraphs.
As a general guideline, I preferred accuracy to style, with the cost that the
grammar might sound a bit strange to English readers. The division of
paragraphs follows the court’s text. All footnotes were added by the
translator.
I hope you will find this case interesting and the translation useful. I will
be happy to clarify any matter regarding Israeli copyright law, or other
procedures.
Dr.
Michael Birnhack
Faculty
of Law, Haifa University
michaelb@research.haifa.ac.il
In the Supreme Court, sitting as a
Court of Appeals
C.A.
2790/93, 2811/93
President: Aharon Barak
Justice
Yaakov Tirkel
Justice
Dorit Beinisch
Robert E. Eisenman
(Appellant in C.A. 2790/93, and respondent in the counter-appeal)
- Hershel Shanks
- James M. Robinson
- Biblical Archaeology Society
(Appellants in C.A. 2811/93, and respondents
in the counter-appeal)
v.
Elisha Qimron
(Respondent, and appellant in counter appeal)
An appeal on the Decision of the District Court in
Jerusalem, civil case 41/92 of 3.30.93, by Judge Dalia Dorner
Argued March 3, 1998
Decided August 30, 2000
Adv. A.
Hausner, argued the case for the appellant in C.A. 2790/93
Adv.
D. Frimer and Y. Hoffman argued the case for the appellants in C.A. 2811/93
Adv.
J. Melcer, argued the case for respondent.
A DECISION
Justice Y. Tirkel:
Background:
1. The Scroll,
“Rulings Pertaining to the Torah”
(hereinafter: “the scroll”), is one of the concealed scrolls
found in the Caves of Qumran in the Judaean Desert.
The scroll is written in a language prior to the language of the Mishna, and
is, probably, a letter
of the leader of the Sect of the Judaean Desert to the leader of the People in
Jerusalem. The fragments of the scroll were first found in the 1950s in “cave
number 4” in Qumran, in which 15,000 fragments of different scrolls were found.
Professor John Strugnell of Harvard University (hereinafter: “Strugnell”) was
the first researcher to engage in compiling the fragments into one scroll, and
he managed to identify about a hundred fragments of the scroll, match them –
according to their shapes – into sixty – seventy fragments. The task of
deciphering the scroll required supplementing the missing parts with linguistic
and Halakhic knowledge
that Strugnell lacked. On this background, Professor Elisha Qimron – the
respondent in the appeals and the appellant in the counter-appeal – joined
Strugnell in 1981, to complete the deciphering of the scroll. Qimron is a Professor of Hebrew
Language at Ben-Gurion University in Be’er Sheva, engages is philological research
and specializes in studying the scrolls found at the Qumran Caves. During
eleven years thereafter, Qimron engaged in deciphering the scroll. Most of the
work was done by him, and he was the one to name it “Rulings Pertaining to the
Torah” (in short, in English: MMT).
Of the sixty – seventy fragments he received from Strugnell, he managed to
compile a text of 121 lines (hereinafter: “the deciphered text”), 40% of which
are supplementing the lacuna that was not found in the text on the fragments.
During the
period deciphering, Qimron and Strugnell passed a few copies of the draft of
the text to a few researchers, asking for their comments. In 1990, towards the
completion of the deciphering, an agreement
between Qimron and Strugnell and the English Oxford Press regarding a
publication of the deciphered text accompanied with photographs of the
fragments of the scroll and interpretation, has been reached.
Mr. Hershel
Shanks (hereinafter: “Shanks”) – the appellant No. 1 in C.A. 2811/93 and
respondent in the counter-appeal – is an attorney, and the editor of an
archaeological review called Biblical Archaeology Review (hereinafter: “BAR”),
which reached the hands of over half a million readers in many countries,
Israel among them. The Biblical Archaeology Society (hereinafter: “BAS”)
publishes the BAR. BAS is incorporated as a company in the United States, and
is the appellant number 3 in C.A. 2811/93 and respondent in the counter-appeal.
In November 1991, before Strugnell and Qimron published the deciphered text,
and without their consent, Shanks published in the United States, by BAS, a
book called “Facsimile Edition of the Dead Sea Scrolls” (hereinafter: “the
book”), which contained photographs of hundreds of fragments of the concealed
scrolls, including photos of fragments of the scroll.
The editors of the book were Dr. James Robinson (hereinafter: “Robinson”) – the
appellant number 2 in C.A. 2811/93 and respondent in the counter appeal, and
Dr. Robert Eisenman (hereinafter: “Eisenman”) – the appellant in C.A. 2790/93
and respondent in the counter-appeal (hereinafter: “the editors”). The editors
wrote an introduction to the book and made an index of the photographs included
in it. The book also has “an introduction by the publisher”, written by Shanks.
To this Introduction there are a few appendixes, one of which is a copy of the
draft of the deciphered text, without mentioning Qimron’s name on the text (for
purpose of brevity, the “draft of the deciphered text” will be referred to
hereinafter as “the deciphered text”).
2. On 1.14.92,
Qimron filed suit in the Jerusalem District Court, in which he petitioned the
court to order Shanks and the editors (hereinafter: “appellants”) to avoid
distributing the book as long as it includes the deciphered text of the scroll,
and to compensate him for the harm to his copyright.
He also petitioned for an interlocutory remedy, until final decision. The
District Court (Her Honor, Judge D. Dorner), in its decision of 2.21.92;
accorded Qimron’s petition and ordered appellants to avoid publication or
distribution of the book in Israel or outside Israel as long as it includes the
deciphered text. In addition, the Court allowed Qimron to serve appellants with
the complaint, outside the jurisdiction. Appellants petition to cancel the
permission of service was rejected. Until the temporary injunction, 200-300
copies of the book were sold, mostly in the United States, and a few in Israel.
The District
Court’s Decision:
3. The District
Court, in its decision of 3.30.93, found that appellants infringed Qimron’s
copyright according to the Copyright Act of 1911 (hereinafter: “the Act”),
ordered a permanent injunction as requested and ordered appellants to pay
Qimron the sum of 100,000 NIS; 20,000 out of which as statutory damages without
proving damages, and 80,000 for the grief brought upon him.
It also ordered attorneys’ fees to Qimron, in the amount of 50,000 NIS.
The Court found
that the infringement took place in the United States. Nevertheless, it reached
the decision based on Israeli law, after finding that the matter is under the
presumption [that the law in the foreign jurisdiction is the same as the law of
the forum absent evidence to the contrary.]
In its decision, the Court found that Qimron has copyright in the deciphered
text; that Qimron’s moral right was infringed by publishing the text without
mentioning his name;
that under the circumstances in which appellants published the deciphered text,
they do not enjoy the “good faith” defense and that there are no policy considerations
which could have exempt appellants of liability. It also found that all
appellants are jointly liable to Qimron for infringing his copyright and moral
right; but, because Shanks is the one who had decided to publish the deciphered
text and undertook full responsibility to the results [of the publication], the
Court found that “his relative liability in relation to the two [the editors –
Y.T.] is a 100%”.
4. In C.A.
2811/93, Shanks, Robinson and BAS request the annulment of the District Court’s
decision, including its remedies. In C.A. 2790/93, Eisenman’s petition is to
cancel the parts of the decision referring to him. In his counter-appeal,
Qimron asks the court to find that he is entitled to remedy also for pecuniary
damages, which he argues have been proved, and extend the amount of damages he
was awarded. The discussion of the appeals was conjoined.
During the
appeals, a body called the “Committee of Concerned Intellectual Property
Educators” petitioned to allow it to join the procedure as Amicus Curiae, and
file a brief. In our decision of 8.24.99 we refused the request, and later on
(section 31) we provide our reasons.
The
Arguments of the Parties:
5. Appellants argue
that there was no infringement of Qimron’s rights in Israel, and thus he has no
cause of action according to Israeli Law; that there were no circumstances for
applying the [Israeli law];
that Qimron’s acts of supplementing the text is none other than a
reconstruction of an existing work and thus the deciphered text is not
protected by copyright law; that protecting Qimron’s reconstruction harms
scholarly research, accords Qimron a property right in “part of the cultural
heritage of the Jewish People” and does not fit desired legal policy; that
publishing the deciphered text, in the manner done, is in line with “scholarly
convention”, customary in the academia, and thus protected as “fair dealing” of
a work, or as a publication done according to an implied consent by Qimron,
even though Qimron had not actually provided his consent to the publication;
that the deciphered text had been distributed by Qimron himself among
researchers in the academia without mentioning his name; and thus, there is no
basis for finding that publishing it without Qimron’s name infringed his moral right.
In any case, in the circumstances of the matter, the appellants have [acted
sufficiently] by pointing that the deciphered text was made by Strugnell
“together with another person”; that Qimron has suffered no pecuniary damages
worthy of compensation; that the amount ordered to Qimron for grief and
attorney fees are overrated.
The editors add
that their editorial jurisdiction did not extend to the part of the book that
includes the Introduction written by Shanks and the copy of the deciphered
text, and that they did not have control over its addition to the book; that
they have objected to adding an introduction to the book but Shanks ignored
their objection; that they did not know in advance that the copy of the
deciphered text will be added to the book; and that, whatever else, they have
not done anything that constitutes copyright infringement.
6. In his
counter-appeal, Qimron argues that harming his right to be the first publisher
of the deciphered text has caused him pecuniary damages and non-pecuniary
damages, and thus the Court should have awarded him substantial pecuniary
damages and not settle for statutory damages; that despite the difficulty to
measure his pecuniary damages, there were enough evidence to do so; that,
alternatively, he should have been awarded global pecuniary damages, and that
the Court ignored his petition to order a remedy of delivering-up the
infringing copies of the book, remaining in the hands of the appellants,
according to section 7 of the Act.
Petitions to
Allow Further Evidence:
7. The parties
have requested adding further evidence in this appeal. These are evidence that
did not exist when the complaint was discussed in the District Court, namely
books and articles, the most important of which are Qimron and Strugnell’s
book, published in 1994, other books about the same scroll, a journalistic
article and articles published later on, and decisions in legal proceedings
conducted in the United States against Qimron, and that could not have been
provided beforehand.
Since these
evidence pours some light over the picture in front of the court – without
prejudice over the result – I agreed to accept them, for this purpose alone.
Discussion:
Applying
Israeli Law:
8. The District Court
decided the case according to Israeli Law, after finding that this is the law
to be applied. As it noted, “all agree that the suit should be decided
according to the law of the place of infringement, i.e., the law of the United
States… it is undisputed that this law has not been proven.” Appellants dispute
the application of the presumption of identical laws in this case, and argue
that once Qimron did not prove which is the law of the place of the alleged
infringement, “thus he did not prove the facts which constitute the cause of
his action.”
I cannot accept
appellants’ argument, and I do accept Qimron’s argument that the matter is
under Israeli law, without turning to the presumption of the identity of the
laws. He relies on the fact that copies of the book were sent to readers in
Israel, and on the fact that part of the sale efforts were made in Israel.
Indeed, from Shanks’ testimony (pp. 271-272 of the protocol) and the forms of
order submitted as evidence, it is apparent that three copies of the book were
sent by BAS to readers in Israel. These copies were, however, ordered in the
United States, and paid for there, but it is sufficient that BAS sent them
directly to Israel, to reach the finding that it has published the deciphered
text in Israel. Since Qimron’s cause of action is that his right of first
publication of the deciphered text has been infringed, the copies distributed
in Israel until the issuance of the injunction, which halted the distribution –
even if few – are a sufficient reason to apply Israeli law on this matter.
It is submitted that
there is no reason to interfere with the [District] Court’s conclusion, that
the matter should be decided upon Israeli Law.
[Omitted]
Did Qimron
have Copyright in the Deciphered Text?
A
Preliminary Comment:
9. Before we reach the
question, of whether Qimron has copyright in the deciphered text, it is desired
to pay attention to the research of the concealed scrolls found in the Qumran
Caves. The first scroll was found
by accident in 1947. In the years thereafter, a few caves were discovered in
the Qumran, and many more scrolls were found. The government of Jordan, under
which jurisdiction the Qumran area was in those days, authorized a limited
international team of researchers to study the scrolls, held in the Rockefeller
Museum in Jerusalem. Only they were allowed to study the scrolls. Following the
Six Day War, the scrolls
have been transferred to the State of Israel, and the Antiquities Authority
maintained the policy according to which the scrolls were studied only by a
limited international team of researchers, which has expanded in the course of
time. Qimron is part of the team since 1980.
In appellants’ brief
there is a bitter complaint regarding the “monopoly” given to the international
team of researchers, that has prevented many researchers of studying the
scrolls. In their opinion, publishing the book has “greatly contributed to the
study of the concealed scrolls – if only in that it broke the monopoly that has
been up to that point”. The District Court responded, saying that “Shanks
conducted for years, on the pages of the BAR, a persistent and polemic campaign
to open the access and research of the concealed scrolls to all interested. He
testified that he has been a voice to all those who remained outside the
“research cartel”. Shanks wrote similar things in the Introduction of the book:
“Surely
we must admire the dedicated people who have devoted their professional lives
to arranging and deciphering these seemingly impenetrable pieces of our common
past. For the most part, the people who do this are not only dedicated but
brilliant experts in what they are doing, conscientious to the nuances of their
work. For this, all honor to them. But for their pride and greed – their
unbending determination to keep exclusive control of these treasures for
themselves, their heirs and their students – they must bear the shame.”
I will say right now
that this dispute is not here for our resolution, and neither is the rightness
of the reasons according to which Qimron has given the right to take part in
the research of the scroll and deciphering it or the rightness of the reasons
according to which others have not won this right. The rightness of Shanks’
public campaign – even if he considered the publication of the book as part of
this campaign – is none of our business,
to the extent that this issue goes beyond the frame of the discussion of the
copyright rights in the deciphered text.
What is the Subject
Matter of the Right?
10. In order to decide
whether Qimron has copyright in the deciphered text, we must define what is the
subject matter of Qimron’s right – what is the “work” that Qimron has created
during eleven years of work? Here, we should distinguish between the two main
components of the deciphered text. One, is the physical, the tangible, “raw
material”: the fragments of the scroll, created about 2000 years ago and found
in Qumran; the second component is what made the collection of the fragments a
deciphered text by physically adding them together, arranging them, deciphering
what is written on them to the extent it required deciphering it, and filling
the gaps between the fragments. In other words, the art of providing soul and
spirit in the fragments that made them a meaningful and living text. Indeed,
the fragments of the scroll are today in the public domain in the sense that
anyone who wishes to aggregate them and decipher them is permitted to do so.
But, the fact that the “building blocks”, the material in the hands of the
creator in his work,
are in the public domain, is irrelevant to the question of whether he
has copyright in his work. This Court has made this point, saying:
“It
does not matter that the “raw material” of compiling the boards is in the
public domain… the question, whether respondent’s boards are an original work,
due to thought, labor or skill invested therein, should be decided according to
examining the author’s work in its entirety” – C.A. 136/71 The State v.
Achiman, P.D. 26(2) 259, 261 (hereinafter: Achiman”).
The question here is
whether Qimron has copyright in the deciphered text as a result of one or more
of the things he did: the physical aggregating of the fragments, their
arrangement, deciphering what is written on them, and supplementing the lacuna
between them. Does that “spirit”, that “soul”, that he placed in the fragments
of the scroll, with the power of his knowledge and talent – that I propose
should be called “SH’AR RU’ACH” (in the sense of one of the interpretations of
the words in Malachi, Ch. 2, s. 15)
– make the deciphered text in its entirety a work protected by the Act?
When Does
the Copyright Subsist?
11. In section
35(1) of the Act it is determined that a “literary work”, that can be subject
to copyright, includes, inter alia, also compilations. As said, according to
this instruction, “copyright can subsist in a unique editing or design” as long
as it has “an original work, due to thought, labor or skill invested therein” (Achiman,
at 261). Thus, a “literary work”, as this term is used in the Act, will enjoy
copyright protection only if it is an original work. (See paragraph 13 of my
decision in C.A. 8393/96 The Lottery Company v. The Roy Export Establishment
Company, and T.
Greenman, The Rights of Authors, Artists and Producers (1998) at 25 –
26). As said:
“The
requirement of originality has for some reason been left out of the official
Hebrew translation in the Statutes of the Land of Israel, but it appears in
section 1 of the English version of the Act, which is the authoritative one:
“every original literary, dramatic, musical and artistic work”. Copyright
protection is not accorded for an abstract idea but for the tangible expression
of the idea. Such an expression must be original … The work need not be an
expression of a thought or an original invention. All that is required is that
the work is not copied from another work, but that its origin is in its
creator, its author. … In order to examine whether the work is worthy of
protection, it should be seen in its entirety, as one entity. If, despite the
use that the author has made of an existing matter, [he] invested in it enough
independent effort and talent of his own, that originates from him, the work
will be protected.” (Justice S. Netanyahoo, in C.A. 360/83 Strosky Inc. v.
Vitman Inc., P.D. 40(3) 340, 346)(my emphasis, Y.T.).
Originality is
the substance, and it is not enough to invest effort, time or talent to justify
copyright protection. As said:
“According to the goals of copyright law… it is clear that the
conclusion is that labor is not sufficient to justify according copyright
protection to an expression. This conclusion is supported both by that
copyright law consists a balance between competing social needs and in the
scope of the protection. The balancing role of the Act stems from [the fact
that] according copyright protection over a particular expression limits
potential future expressions. A view that understands the right as deriving
from the labor itself is not sensitive enough to this important balance, which
lies at the basis of copyright law. True, the “investment” approach is
generally accepted as justifying real property, and thus there are those who
view it as suitable for intellectual property as well … but it seems that the
differences between the two fields does not allow its adoption to intellectual
property.” (President M. Shamgar in C.A. 513/89 Interlego A/S v. Exin Lines
Bros. S.A., P.D. 48(4) 133, 165; and M. Deutch, Property (Vol. I,
1997) at 78-79. Compare to Feist Publications, Inc. v. Rural Telephone
Service Co., Inc., 499 U.S. 340, 111 S. Ct. 1282 (1991).
However, it is
important to point that there are those who hold that investment of effort,
time or talent, in itself, by the author, can indicate the existence of
creativity (See Interlego, at 164). As for the extent of investment and creativity,
it has been said that:
“It is worth noting that according to all views these are only minimal
tests, both as to the issue of investment and as for the level of creativity
required. … The investment is apparent in investing some human resource: time,
effort, talent, money, knowledge, judgment, development, pain or personal
preference … it is required that the creator’s investment will pass a certain
minimum, though this minimum is very low. It is required that ‘it is possible
to distinguish the independent contribution of the author’, or ‘that the
product is distinguishable from its building blocks’” (Interlego, at
170).
At this point,
we have to pay attention also to the process of crystallizing the work in its
final form, and the extent of the author’s own original contribution to this
process:
“In
examining originality, there is no place for comparing the ultimate work with
other works, and the focus should be on the phase of making the work. … The
proper test will focus on examining the considerations in the phase of making
the work, and will examine if these are taken from existing components or
existing works, or whether there is something more, of the original
contribution of the author. In other words, the original contribution is not examined
in light of the ultimate product but according to its origin: is the origin
found in the author, or alternatively, in someone else who is known. Thus, the
purpose of copyright law is achieved.” (Interlego, at 171).
12. We have seen that
compiling and editing might fall within the definition of “literary work”, in
the meaning of this term in the Act, and that the question, whether copyright
subsists in the work, is examined according to the level of originality it
includes. We have further seen that it is not enough that the author has
invested his human skills, but a [certain] level of originality is required –
not only in the work itself but also in the process of creating it – for the
work to enjoy protection.
From the
Scroll of Copyright to the MMT Scroll:
13. The
District Court found that Qimron has copyright in the deciphered text, after
finding that the transcription of the text and filling the gaps between the
fragments were done based on original Halakhic and linguistic research. As it
stated:
“Indeed,
according to the criteria set in the case law, copying the original, even if it
is complicated and requires skill, does not create copyright. It is true that
also in this case, the decipherer’s intent was to reconstruct the original
scroll. But, the original scroll has not all been discovered. The dozens of
fragments that were discovered referred to various copies,
there was no physical compatibility between most of the fragments and even
after matching them, there remained a gap of about half the text. As mentioned,
it was impossible to match the fragments to each other and fill the gaps
without a linguistic and Halakhic research. … Thus, there is no place for an
analogy between the work of the plaintiff, which had creative and original elements,
and the cases discussed in the case law, on which the defendants relied, which
dealt, as said, with copying a phonebook and drawings. The result of the above
is that editing the transcription and compiling the fragments that match
physically to each other is not the required originality. In contrast,
compiling the text based on a Halakhic and linguistic research, conducted by
plaintiff, is an original work”.
Appellants
reject the Court’s conclusions. They argue that the filling of the gaps by
Qimron is not an original work, but is a discovery and exposition of parts of
the original text, as written 2000 years ago. Thus, there was only discovery of
facts, in the framework of a research of the historical and scientific
research, and as such, it is not protected by copyright law. Even if Qimron has
invested effort, time, knowledge and talent, there is no originality in the
deciphered text that awards him with copyright. Indeed, the original, complete
and “true”, text of the scroll is not in our hands so we cannot compare it to
the deciphered text, but this, as they state, does not turn the deciphered text
“from a factual work which is not worthy of the law’s protection, to a
fictional work”. Since Qimron presented the work as reflecting the “real” text of
the scroll, he cannot argue that it is an original work.
Filling the gaps, too, is none other than writing ideas down, and even if the
ideas are original, they are not an original expression worthy of protection.
Furthermore, since the “idea” expressed in the text of the original scroll can
be expressed only in one way – as Qimron has expressed it in the deciphered
text – no copyright subsists in the idea, and it cannot be protected. This view
is based on the “merger doctrine”, which source is in American law. Appellants
also brought some examples of situations where copyright protection is not
awarded, which, in their opinion, the proper result in our case can be
inferred. I cannot accept these arguments.
14. We have
seen above that one who has compiled and arranged “raw material”, created by
others a long time ago, will enjoy copyright protection in the fruit of his
labor, as long as it has the characteristics of originality. (See Achiman,
cited above). Appellants try to create rules like, “it is impossible to acquire
copyright in a reconstructed scroll” or “it is impossible to acquire copyright
in the product of a scientific-historical research”, and apply them to this
case, but this cannot assist them. The decision in this dispute, more than it
is based upon rules, is based upon the particular circumstances of this case,
and the principles which we have examined. The following is appropriate:
“In my opinion, there is no need to predetermine whether we face an
idea or its application. It all depends on the circumstances: the same set of
facts can be considered for one matter an idea, and for another matter the
application of the idea. Taking a wider perspective, there is nothing original,
but any invention or “idea” are a development of a prior invention or “idea”;
the question should be whether, in practice, one added something original of
his own to the prior “idea” or “application” (and then, the work will be
protected even though the basis of the original work are derived from another
source), or whether he copied, in disguise, what another has done without in
fact creating something original of his own.” (Justice S. Levin, in C.A. 23/81 Hershko
v. Aourbuch, P.D. 42(3) 749, 759).
The District
Court closely examined Qimron’s process of work, with the intention of
examining the level of originality in the process, and not because it thought
that a large investment is sufficient to acquire copyright. This process, at
the end of which the collection of fragments became a complete text, that bears
content and meaning, included several phases of creation:
matching the fragments based on their physical compatibility, arranging the
matching “islands” of fragments and placing them in the putative place in the
scroll, deciphering the written text on the fragments, to the extent that such
deciphering is required and filling the gaps between the fragments. In the
creation of any of these phases there has been a different level of originality
and creativity, but nevertheless, there is no place for examining each phase on
its own. In this case, the various phases of the work are tied together,
interdependent and have mutual influence upon each other. Deciphering the text
dictates, to some extent, the arrangement of the “islands” of fragments; the
arrangement influences the possible meaning of the text, its construction and
content, and the way of filling the gaps in it. The different phases of the
work should not be separated from each other, and should be considered as one
work. Examining the work, with its various phases, as one whole work, reveals
undoubted originality and creativity. Qimron’s work was not technical,
“mechanical”, like simple labor which result is pre-known. His SH’AR RU’ACH,
“the additional soul” he put in the fragments of the scroll, that turned the
fragments to a living text, were not just the investment of human resources, in
the meaning of “the sweat of man’s brow”. It was the fruit of a process in
which Qimron applied his knowledge, skill, imagination; in which he applied
discretion and chose among various options. The District Court has well
illustrated Qimron’s discretion and creativity:
“There
was no way to reach a single reconstruction, since the manner of reconstruction
and filling the gaps depend on the results of the research. These, for the
most, are not identical, for there is a dispute among scholars. As an example
for this difference, plaintiff has brought two disputed between himself and
Strugnell:
(1)
Strugnell
thought that in some fragments the sentences are of 9 lines, and their arrangement
is thus vertical. The plaintiff, after a study, has concluded that in the
relevant portion, the sentence is of 18 lines, and thus it should be arranged
horizontally. Of course, the difference in the arrangement influenced the
content of the scroll.
(2)
Another
fragment was compiled from 6 tiny fragments, and plaintiff explained that this
way of arranging them is entirely a speculation. It depended on whether to add
a missing letter with an “O” as Strugnell thought, so the word would read
“Orot”,
or with the letter “O’”, so the word is read “O’ROT”.
After a Halakhic study of the purification of skins in those days, plaintiff
has concluded that it is “O’ROT”. He compiled the portion based on this
assumption, and of course the content was completely different from the content
that would have been found had the fragments been compiled based on the
assumption that the word was “orot”.”
From here, a
clear picture of Qimron’s original contribution is apparent. From here derives
the conclusion that the “SH’AR RU’ACH”, the “additional soul” he inspired in
the fragments of the scroll, with his labor, make him the owner of the
copyright in the deciphered text.
Does proper
legal policy justify negating the copyright?
15. Appellants
further argue that proper legal policy requires the conclusion that the
deciphered text is not an original work and is not protected by copyright law.
In their opinion, the finding that Qimron has copyright in the deciphered text
accords Qimron with the position of a monopoly in a document of historical
value, which is part of the cultural heritage of the Jewish people. This
position might deter other scholars from examining and criticizing the text’s
reconstruction, harm the study of the concealed scrolls in the future and the
public interest. They argue, that even if there is a feeling that respondent
has suffered injustice,
copyright law is not the proper place to correct it. Based on these reasons,
appellants petition the court to find that it is impossible to accord copyright
in the deciphered text, and thus, that Qimron has no copyright.
These
arguments, made by appellants, are rather empty. We clarified above that Qimron does not have a right in the
“raw material” – the actual fragments of the scroll – and neither does he
demand it. His copyright in the deciphered text does not prevent anyone the
possibility to study the fragments, to arrange them, to decipher the text and
fill the gaps between them, in a different way than Qimron has chosen, and
publish the results of the work and even enjoy copyright protection. In a
sense, what we have here is a “multi-factor” equation, which anyone who
attempts to solve it can try and place different “values” in their place.
Appellants further argue that the copyright owner will try to silence his
critics, arguing that they infringe his copyright, and thus the freedom of
academic research will suffer sever harm. We should not dismiss these
contentions easily. In the past, I have emphasized the importance of academic
freedom, and pointed that “unfettered research, study and teaching in all
humanities, elevate the individual in the society and with him society at
large. This is also realization of a fundamental human need” (Criminal Appeal
2831/95 Elba v. The State, P.D. 50(5) 221, 335). Indeed, this is a
struggle among interests, which sometimes face each other – the individual’s
right to protection of the fruit of his labor versus the society’s right to
flourish, based on the fertile grounds of the past – and these interests should
be balanced. But in this case, we need not discuss the proper balance, since
there is no basis for fear. As said:
“…
the legislature did not ignore the meaning of the scope of the use and its
purpose, when shaping the right; some uses, under some circumstances, have been
excluded from the ambit of copyright protection for reasons of public policy.
But, this is possible only as an exception to the right” (Justice Y. Malz, in
A.L.A. 2687/92 Geva v. Walt Disney Inc., P.D. 48(1) 251 at 268-269;
hereinafter Geva; and see also paragraph 21 in my opinion in The
Lottery Co.).
In my opinion,
these exceptions embedded in the law, are sufficient to assure the freedom of
academic research, despite Qimron’s copyright in the deciphered scroll. An
example to such an exception is found in section 2(1) of the Act:
“Copyright
in a work shall be deemed to be infringed by any person who, without the
consent of the owner of the copyright, does anything the sole right to do,
which is by this Act conferred on the owner of the copyright: provided that the
following acts shall not constitute an infringement of copyright –
(i)
Any
fair dealing with any work for the purposes of private study, research,
criticism, review, or newspaper summary;”
Thus, a
researcher that will study the deciphered text or its creation, for the
purposes mentioned in the section, will be entitled to the defense that his
dealing with the work was “fair dealing”, as well as other defenses, as we
shall see further on. The conclusion is that that these considerations, which appellants
argue for, do not negate Qimron’s copyright in the deciphered text.
Did
Appellants infringe Qimron’s copyright?
The Infringement:
16. Section 1 of the
Act states:
“1.
Copyright:
(1)
…
(2)
For the purposes of this Act,
“copyright” means … if the work is unpublished – to publish the work or any
substantial part thereof ….
(3)
For
the purposes of this Act, publication, in relation to any work, means the issue
of copies of the work to the public…”
The act of
publication of a work before published by its owner and without his consent is
an infringement of the right, as stated in section 2(1) of the Act, cited
above. As mentioned, the deciphered text was published in the book, before
Qimron, the copyright owner, published it and without his consent. This is not
disputed. By this, his copyright has been infringed.
Do
Appellants enjoy the defense of “scholarly convention”?
17. It has been
mentioned above that Qimron and Strugnell passed a few copies of the deciphered
text, before published, to several scholars, asking for their comments (see
paragraph 1, supra). One of the scholars has probably passed the copy he
received to others, and in this way a copy has reached the hands of Dr.
Zdzislaw Kapera (hereinafter: “Kapera”), a Polish researcher from Krakow. In December
1990, before the book was published,
Kapera published the deciphered text in a review called “The Qumran Chronicle”.
Along the text, he mentioned that the source of the text is anonymous, and that
the readers are requested not to copy it or further transfer it to other
people. Upon Qimron’s request, the Director of the Antiquities Authority sent,
on 3.12.91, a warning letter to Kapera, in which he pointed that the
publication infringes the legal, moral and ethical rights of Strugnell and
Qimron, and insisted that the publication of the review be halted. Kapera
responded with an apology, in which he explained that he distributed only few
copies of the review and promised to halt distribution. Appellants thus argue
that when the book was published in November 1991, the deciphered text has
already been in the hands of scholars, and was thus a “published” text,
according to the “scholarly convention”. Thus, the publication of the
deciphered text in the book should be considered as if made upon Qimron’s implied
consent; for scholars who find a text published in an academic review, should
not be forced to check whether the publication has been made with the consent
of the copyright owner.
18. Appellants’
arguments do not withstand. Firstly, in the current case, one should not rely
on a “scholarly convention” regarding the use of research material published by
its author. As mentioned, appellants have used published material which has not
mentioned the name of the author, accompanied with the explicit statement of
the editor not to copy
it and not to transfer it further. This is sufficient to dismiss the argument.
Secondly, from Shanks’ words himself, in the Introduction he wrote for the
book, it is clear that he knew about the letter written by the Director of the
Antiquities Authority to Kapera, which Shanks attached as an appendix to the
Introduction, and that he knew that Kapera has decided to halt the distribution
of his review and destroy the copies. Under these circumstances, it should be
determined that Shanks published the deciphered text despite his knowledge that
Qimron opposed it. Furthermore, the District Court found as a finding of fact
that:
“Shanks, after consideration, formed the opinion that it is unlikely
that he will be sued for copyright infringement, not by the ailing Strugnell
(and he was correct in this), and not by the quiet and shy plaintiff (Qimron –
Y.T.), who lives in Israel”.
Thus, the
argument that the publication of the deciphered text was made according to a
“scholarly convention” or according to Qimron’s implied consent should be
rejected.
As a footnote
to this, I will comment that according to section 8 of the Act, an “innocent
infringer” is exempt from liability to pay damages:
“Exemption
of innocent infringer from liability to pay damages:
Where
proceedings are taken in respect to the infringement of the copyright in any
work and the defendant in his defense alleges that he was not aware of the
existence of the copyright in the work, the plaintiff shall not be entitled to
any remedy other than an injunction or interdict in respect of the infringement
if the defendant proves that at the date of the infringement he was not aware
and had no reasonable ground for suspecting that copyright subsists in the
work.”
Shanks is not such
an innocent infringer. (cf. Deutch, at 191).
Do
Appellants enjoy the defense of “fair dealing” of the work?
19. We have
seen that “Any fair dealing with any work for the purposes of private study,
research, criticism, review, or newspaper summary;” is not considered copyright
infringement (section 2(1) of the Act). The question of whether there was “fair
dealing” of the work should pass two tests: whether the use was fair? Was the
use for one of the enumerated purposes mentioned in section 2(1) of the Act?
(see Geva, at 270, and paragraph 22 of my Opinion in the Lottery Co.).
According to appellants, publishing the deciphered text “enabled researchers
all over the world to access the text, to study it for their needs, and to
criticize, at their will, respondent’s arguments and conclusions, as expressed
in articles he has published in the course of the years regarding the MMT
scroll.” They argue that the publication of the book, including the deciphered
text, is “fair dealing” for the purpose of research and criticism. They further
argue that the publication is a “newspaper summary”, that has brought “news” to
the public. In sum, the publication of the deciphered text had been undertaken
to promote the public interest, and impeding the publication by Qimron has
harmed the public interest.
20. I cannot
accept this argument. Appellants published the deciphered text in its entirety,
without mentioning Qimron’s name, and by this they knowingly infringed his
right to be the first to publish the deciphered text. In addition, it is
apparent that the publication was not “fair dealing” of the work and was not
meant for the purposes enumerated in section 2(1) of the Act. This is apparent
in that the text has been included among the appendixes to the Introduction, which
included also letters, without comment, interpretation, criticism or any
reference to its content. In addition, it is apparent from Shanks’ introduction
to the book, as quoted supra (paragraph 9) that his main purpose in publishing
the deciphered text was defiance against the research “monopoly” given to the
international team of researchers.
The argument
that the text has been published as a “newspaper summary” is baseless. Even had
the term “newspaper summary” borne the meaning that appellants wish to
attribute to it – and I do not state a position as to this – the argument has
no anchor in the evidence. There is no statement or a hint in the book that the
deciphered text included in it is “news”, brought to the public, or that there
is an intention of so doing, as such. Furthermore, publishing the deciphered
text in its entirety, as it was, is not “summary”, and is not
“journalistic”. Either way, even had it been a “newspaper summary”, the use of
the deciphered text was not at all “fair”, for Qimron’s name was absent.
Hence,
appellants do not enjoy the defense of “fair dealing” of the work.
Did the
editors infringe Qimron’s right?
21. The
question, whether the editors have infringed Qimron’s copyright,
requires a separate discussion.
The editors’ names
are mentioned at the beginning of the book. The District Court found that the
have infringed Qimron’s copyright. But it also found that “[Shanks’ – Y.T.]
liability, relative to the two, is 100%”, for Shanks was the one who has
decided to publish the deciphered text in the book, and for the reason that
Shanks has taken responsibility
for so doing. The editors appeal the Court’s finding. They argue that their
role was only to receive and classify the photographs of the fragments of the
undeciphered scrolls, editing an index of the photographs of the fragments, and
writing an introduction to the book. They did not control the publisher’s
introduction, written by Shanks, and its inclusion in the book with appendixes,
one of which was the deciphered text – and thus they are not liable for
infringing Qimron’s copyright.
I will say
right away that after examining the book and the evidence presented to the
District Court, I have reached the conclusion that the editors’ argument should
be rejected.
22. The front page of
the book says that the book was prepared by the editors with an introduction
and an index:
A Facsimile Edition
of the
Dead Sea Scrolls
Prepared
with
an
Introduction
and
Index
by
Robert
H. Eisenman
and
James
M. Robinson
Indeed, Shanks’
Introduction, included in the book, was not mentioned in the front page, but,
from the evidence presented to the District Court it is evident that the
editors knew in advance about Shanks’ intention to include the introduction he
wrote in the book, and he also provided the introduction to the editor’s review. The introduction also
explicitly stated that the text of the scroll, published in 1990 by Kapera, is
the deciphered text – attached as an appendix to the introduction. Furthermore,
the introduction indicates that Shanks – and thus the editors too – were aware
that the publication of the deciphered text infringed Qimron’s copyright. As
said above, the introduction describes the events that halted the distribution
of the deciphered text by Kapera, including a quote of the above mentioned
letter, sent by the Director of the Antiquities Authority to Kapera, in which
he stated that the publication infringes Strugnell and Qimron’s rights. It was
also mentioned that this letter is also attached as an appendix to the introduction
(page xvi in the book). Nevertheless, the editors sufficed in expressing
reservation concerning the style of the introduction, and did not object
to publishing the deciphered text in the book. Once they have agreed, in these
circumstances, that their name be read on the book as its editors – without
reserving the contents of the introduction or the appendixes thereof – this can
be understood as an implied consent to the copyright infringement.
Further more, I
will note that the editors’ liability to Qimron, could have been based on
further grounds. In my opinion, mentioning the name of the editor on the cover
of the book, in itself creates a presumption that all that is published in the
book is done with their consent; unless it is explicitly written otherwise on
the cover. The editor can rebut this presumption, by presenting evidence. In
this case, the cover of the book states that it has been prepared by the
editors with an introduction and an index. This phrasing, describing the
editors’ work, does not exclude Shanks’ introduction and its appendixes, from
their liability. Furthermore, in the introduction to their book, the editors
pointed that not only did they assist in preparing the edition, but that they also
prepared the introduction and index (page xi). These words reinforce the
above mentioned conclusion.
As said, the
editors could have rebutted this presumption by presenting evidence to the
contrary, but they have not done so. The protocol of the argument in the
District Court shows that they mentioned this claim in their briefs, but did
not show up in court to testify. Shank’s testimony, that he bares all the
responsibility to the introduction he has written as well as the testimony of
attorney William Cox, who coordinated between the editors and Shanks, are
irrelevant in respect to Qimron, and bare, at the most, upon their relationship
with Shanks.
Thus, the
editors are presumed to have agreed to the publication of all that is published
in the book.
The Moral
Right:
23. Other than the
material rights that a copyright owner holds, he has also the personal-moral
right (see J. Weisman, “The Personal Right (Droit Moral) in Copyright Law”, 7 Bar
Ilan L. Stud. 51, 55 (1989)). Section 4A to the Copyright Ordinance
reads:
“4A.
(1) An author is
entitled that his name be attributed to his work in the scope and extent
customary;
---
(3)
infringement of this right is a civil tort, and the Ordinance on Torts shall
govern it.
(4)
the right of an author according to this section is independent of his material
rights in that work, and will subsist even after this right, all or part
thereof, has been transferred to another.
---”.
A person is
entitled that his name be attributed to the “children of his spirit”. His
spiritual relationship to these is akin, almost, to his relationship to his
offspring. Publication of a work without baring his name in “the reasonable
scope and to the extent” infringes the moral right of the author. The roots of
this important principle are found also in Jewish sources….
As the District
Court found, “the fruit of plaintiff’s labor, i.e., the aggregated text, was
published without mentioning his name, and thus infringed his moral right”.
appellants argue that under the circumstances, which we have mentioned, where
Qimron’s name was not mentioned on the deciphered text that Kapera published,
the next publisher should not be required to check who is the copyright owner
in the work. Furthermore, appellants argue that they have fulfilled the
requirement by attributing the deciphered text to Strugnell - who was,
according to their argument the head of the researchers team – and to another
“colleague”.
24. These
arguments, too, should be rejected. The Court found in an unequivocal manner
that Shanks knew that Qimron participated in creating the deciphered text:
“As
for plaintiff’s part [Qimron – Y.T.] in constructing the aggregated text,
Shanks admitted he knew that plaintiff assisted Strugnell in the study of the
scroll… that he participated in its reconstruction… and that the reconstruction
was likely to include filling the gaps in it… not only so, Shanks’ testimony re
his lack of knowledge as for plaintiff’s part in the deciphering is
contradicted by an objective evidence – Drori’s letter [the Director of the
Antiquities Authority – Y.T.] to Kapera reached Shanks’ hands, and he published
it in the book … in this letter Drori mentioned that Strugnell and the
plaintiff engaged for years in deciphering the scroll.”
Shanks
deliberately avoided mentioning Qimron’s name. It was not an absentminded
omission, or as a result of not knowing the identity of the author. Hence,
there is no relevance to the question, whether there is place for imposing a
duty to check the identity of the author, in a publication of a work that is
copied from a prior publication, in which the work had been published without
the author’s name.
As for the
argument that appellants have done enough by mentioning Strugnell’s name
“together with another colleague” - it should be wholly rejected. In the
introduction to the book it is said that –
“with a colleague, Strugnell proceeded to write a 500 page commentary
on this 120 line text. The commentary is still not published and no one knows
when it will be.”
Mentioning a
“colleague” without mentioning his name, and without mentioning that there was
a work of deciphering the text is contemptuous and a mockery. Such an
“attribution” – including the argument that it is sufficient to comply with the
above mentioned Ordinance – if not the human – moral duty – is even more insulting
than no mentioning at all. There is no need to add further words, that the two
lines, hidden in an eleven page introduction, separated from the page on which
the deciphered text was published, without mentioning the name – does not
fulfill the requirement of attribution "in the scope and extent
customary."
The conclusion
is that appellants have infringed Qimron’s moral right.
The Remedies:
25. – 28.
[Omitted]
29. In his suit
and in his arguments in the District Court, Qimron requested also a remedy of
recovery, according to section 7 of the Act:
7.
All infringing copies of any work in which copyright subsists, or of any
substantial part thereof, and all plates used or intended to be used for the
production of such infringing copies, shall be deemed to be the property of the
owner of the copyright, who accordingly may take proceedings for the recovery
of the possession thereof or in respect of the conversion itself.
In its decision, the District Court did
not address this remedy and did not award it to Qimron. Appellants did not
address this in their briefs. In these circumstances, after it has been found
that Qimron copyright in the deciphered scroll has been infringed, Qimron is
entitled to the remedy of recovery, as requested".
30. [Omitted].
Amicus
Curiae:
31. In the
course of the appeal, a body called the “Committee of Concerned Intellectual
Property Educators” (hereinafter: “the petitioner”) requested to join to this
procedure as Amicus Curiae, and submit a brief. In our decision of 8.24.99 we
refused, and we set forth our reasons for so doing (see paragraph 4, supra).
In its
petition, petitioner describes itself as “an independent organization, the
members of which are a distinguished group of professors and lecturers in Law
Schools, mainly in the United States, in the field of copyright law. The
organization includes 60 members. The members of the organization have a
professional interest in achieving a proper balance between the property right
on the one hand, and the user’s interest on the other hand, in the field of
Intellectual Property… This organization is active not only in the United
States but anywhere in the world where there is a fear of harming or narrowing
to copyright.” Petitioner’s attorney has presented an authorization, by Mr.
David Nimmer, who declared himself to act on behalf of petitioner. In addition,
he has presented a letter, listing names of ten jurists who are affiliated with
American universities, who, so he claims, “join the petition.”
Petitioner
argues that “the basic question of this appeal is whether copyright is limited
to the territorial borders of a country, or whether it is entitled to
international protection. The Supreme Court’s decision in this question might
carry significant implications on the understanding of copyright and its
protection even beyond Israel… Due to the many implications of the appeal…
petitioner petitions for the Court’s permission to present it with as wide as
possible information, so to present a wide and complete picture in the matter
of copyright, from its international aspects. Thus, to provide information that
might assist the Court to reach the best decision that would suit the
international understanding in this field.”
Furthermore,
petitioner lists the guiding considerations that instruct courts in the United
States in deciding whether to allow a status of Amicus Curiae, such as the
benefit to the Court of the brief, the existence of a public interest that
petitioner may present, the parties’ ability to present their position to the
Court, an objection of the parties, the timing of the petition, and
petitioner’s ability to present legal matters in an objective manner.
32. Qimron
objects to this petition, and relies on procedural arguments as well as
substantive ones. The crux of his procedural argument is: petitioner is not a
legal entity, and thus the authorization it presented is invalid; the petition
has been submitted too late, and after the parties have already submitted their
concluding briefs; petitioner has not acted in good faith, by not revealing
facts that might indicate its affiliation with some of the appellants and
regarding the identity of some of those who support its petition; petitioner
did not support its petition with an affidavit, even though its petition is
based on facts, such as the identity of its members, their occupation, its
goals and activity.
33. In several
cases in the past, this Court has discussed the question of whether to allow
bodies which are not parties to join as Amicus Curiae (see C.C. 876/50 A.B.
v. M.B., 3 PS”M, 263, 287; C.A. 173/84 Ben Zion v. Gorni, 39 P.D.
757, 765; A.L.A 2652/94 Tendler v. Le Club Mediterrane (Israel)(not yet
published); A.L.A. 1185/97 Estate of Milgrom Hinda v. Merkaz Mishan (not
yet published)). In one case, in which the Court allowed the Public Defender to
join a procedure of a petition for retrial as Amicus Curiae, the considerations
that guide the Court have been outlined:
“Indeed,
before according a body or a person the right to makes its case in a procedure
in which it is not an original party, the potential contribution of the
proposed position should be examined. The expertise, experience, and the
presentation of the interest in the name of which it requests to join the
procedure, should be examined. The kind of the procedure and its rules should
be examined. The parties and the stage at which the request has been submitted
should be considered. The merits of the issue at stake should also be
considered. These criteria are inconclusive. They do not predetermine when a
party should be allowed to join as Amicus Curiae, and when it should be
refused. At the same time, these considerations should be taken into account
when deciding upon such a request. (President Barak, in 7929/96 Kozali v.
The State (not yet published).
(See also Cr.A.
111/99 Arnold Schwartz v. The State, 54(2) P.D. 241, 251-252, in which
it was decided to allow the Public Defender to join, as Amicus Curiae, a
procedure which dealt with criteria of examining a petition to suspend
imprisonment; and see also the dissenting opinion of Justice Kedmi, at p.
287-288).
34. We do not
accept the petition, due to its procedural flaws, and thus we do not need to
discuss the petition on its merits.
As stated,
petitioner has not supported its petition with an affidavit. As a result, the
existence of the petitioner and its nature have not been proved. Furthermore,
it was not proved that Mr. David Nimmer is authorized to represent petitioner.
The petition also lacks sufficient factual basis, according to which the
potential utility of its brief, the interest it represents and its ability to
properly present the legal matters at stake, could have been considered. It
should also be mentioned that the attorneys of the parties have presented a
wide array of arguments, and it seems that additional briefs would not have
contributed to the judgment.
35. We have
thus decided to refuse the petition to be allowed to join as Amicus Curiae.
Conclusion:
36. Appellants
infringed Qimron’s copyright in the deciphered text and infringed his moral
right. Thus, their appeals are rejected. Qimron’s counter appeal is partially
accepted, in the sense that it is so ordered that appellants should turn over
to Qimron all the copies of the book in which the deciphered text is included
and all the plates that are used, or so intended to be used, to make copies.
Shanks and BAS
will pay Qimron attorney fees in the amount of 40,000 NIS; each of the editors
will pay him attorney fees in the amount of 10,000 NIS.
______
Justice Y.
Tirkel
President A.
Barak: I
agree.
Justice D.
Beinisch: I
agree.