Music, Copyright and Jewish Ethics (or “Is it ok to steal from musicians?”)

Copyright law is internationally upheld as a fundamental right for composers, lyricists, librettists and writers (referred to collectively in this article as ‘creators’, and publishers for good reasons. However, these creators and copyright holders typically lose out financially to the practice of people copying or distributing (e.g. emailing) unpaid-for copies of the music instead of buying them. Every time a copy is made or distributed without the creator’s or copyright holder’s permission, that person is being forced to work for free.

What follows is a brief outline of the principles of copyright as they apply to music and lyrics, including some explanation of ‘fair use’. The second section describes some of the ways that people try to justify infringing copyright – and how to refute such arguments. The third section explores how Jewish tradition and teachings (created before copyright concepts or copyright law existed) have been applied to the modern principle of copyright.

“Copyright is an automatic legal right which protects original literary, dramatic, musical and artistic works. … [It] enables those who have created a work, such as a song, or story, to be paid for their creativity and to be acknowledged as the creator…. Copyright owners can … control how their work is used ie how it is copied, distributed, altered, transmitted, broadcast or performed. Anyone who uses a copyright work without permission can be guilty of infringement and action could be taken against them.” [1]

Within copyright law, the ‘reproduction right’ gives the copyright owner the exclusive right 
to make copies of the work. Buying a piece of sheet music confers the right to sing or play from it, but not to copy or distribute its contents (except for ‘Fair use’ – see below), which remain the property of its creator. Copying without permission – including emailing versions to people, or making versions available through the internet – encroaches on the business rights of the copyright holder, which constitutes theft.

Making a manuscript version or new digital or print version of a piece sheet music is still infringement of copyright, and a denial of the copyright holder’s exclusive right to profit from the product of the creative work.

Making minor changes to a composer’s sheet music, creating an arrangement of it, modifying a lyricist’s words, or making a derivative work or adaptation of something is an infringement of the creators’ and publisher’s copyright.

“If you want to use someone else’s music such as a song, part of a song (even a very small part) or sample, it is important to seek permission to do so either from the copyright owner or from the relevant collection society. This is also the case if you want to make an arrangement of someone else’s work.” [2]

Copyright law provides for educators to photocopy for teaching purposes within clear limitations under the principle of ‘Fair Use’. First, sheet music can be copied for teaching purposes – and even performance – strictly within a classroom or course, but the teachers and students may not legally take the copies away, rehearse or perform with the copies outside the classroom context. A regular choir doesn’t constitute a classroom context.

Second, sheet music may not be copied for coursepacks – permission from the composer / publisher must be obtained.

Third, multiple photocopies must meet the tests of: brevity (only short excerpts and not complete pieces of music); spontaneity (an individual teacher’s initiative, rather than an organisation’s materials for educational provision); cumulative effect (use in one class or course and not a repeated course, not more than one piece of music from the book); prohibition on using copies to create or substitute for anthologies, or to substitute for the purchase of books; students may not be charged beyond the cost of the photocopying; each copy should include a notice of copyright.

Defending the indefensible

I have had many discussions about photocopying sheet music without creators’ or publishers’ permission. It usually starts with someone believing (and hotly defending) that copying (including, emailing out copies) is legally permissible. It isn’t. It is theft. It is illegal – internationally. The reasons why have been set out in the previous section.

The next line of defence is usually based on spurious appeals to ‘morality’, ‘realism’ or ‘pragmatism’. Attempts to justify illegal copying are endlessly creative. Here are a few:

  1. “It’s only a few copies.” So it’s okay to steal as long as we only steal a little bit?) A variant of this is: “It’s just one copy (or emailed copy) – that won’t make any difference.” (And what happens to the creator’s or copyright holder’s livelihood if everyone said that, and nobody paid for original sheet music?
  2. “Lots of people do it.” So we can do anything we want, even if it’s illegal or immoral, as long as other people do it too? Sometimes people contradict themselves and argue points 1 and 2 simultaneously!
  3. “We’re not making any money from it.” So it’s okay to take something that belongs to someone else, as long as we don’t make money from it?
  4. “It’s doing the composer / publisher a favour – I’ll tell everyone else how good it is.” So it’s okay to take from someone, without their permission, as long as we tell everyone else how much we appreciate what we stole? That would make stealing one of the most bizarre forms of flattery. And won’t those other people also then assume that they, too, can take without paying? Am I allowed to go to the theatre without paying for my seat, because I promise to tell someone else to go to the theatre?
  5. “Sheet music is too expensive.” So if we don’t want to pay the asking price for something, it’s okay just to take it?
  6. “You can’t stop it happening.” Does that mean we have no control over – or responsibility for – even our own actions? Are we incapable of stopping even ourselves copying illegally? Do we have no power to encourage others to stop illegal copying or distributing?
  7. “It helps keep music alive.” And what will help keep the composer and publisher alive if they don’t get paid for their work, and why would they keep creating music if they got nothing back? Actually, copying, especially amongst amateur music-makers, and distributing illegally through the internet is doing massive damage to creators and the creative industries across the world. Professional arts organisations, creators, lawyers, legislators and governments worldwide are working on tightening the law and communicating with the public to try and stop the rot.
  8. “We’re not professional musicians.” So it’s okay to steal or do something illegal if we’re amateurs or enthusiasts?
  9. “It’s for a church, synagogue or charity.” So religious institutions and charities should be allowed to operate outside the law and not have to pay for anything? Maybe secular creators must work for faith organisations for free? Or a creator is obligated to donate to a charity at the charity’s discretion? Are charities legally or morally permitted to take from whomever, and whenever, they like?
  10. “It’s just for personal or private use.” So we can have something for nothing, as long as it’s just for our personal use? Why do we bother paying for anything then?
  11. “It’s just for one performance.” Then why do we pay for single use of anything – for food, or a ticket for the cinema or a concert, or rented videos?
  12. “We’ll destroy the copies afterwards.” So it’s okay to steal and use something if we hide the evidence? And can we be completely sure that nobody will hold onto their own copy, or make another one?
  13. “Nobody would perform music if every copy had to be bought.” So nobody would eat or dress if we had to pay for food and clothing? Is it true that nobody is prepared to engage in fair exchange for goods or services?
  14. “That musician has made plenty of money anyway. S/he can afford the copies I’m making.” So it’s okay to steal from someone who is – or who we think is – rich? Or is that we get decide how someone else’s earnings should be used – especially if it’s for our own benefit?

I called this section ‘Defending the indefensible’. The problem is that infringing copyright is so easy to get away with. Sadly, “nobody will know” is sometimes used as a rationale for copying. Even though legislation exists, the crime is largely undetectable, which means that copyright infringement is actually ‘exploiting the defenceless’. Is that morally defensible?

When the Torah and Talmud were written, copyright was not an issue. There are, however, several places in Torah, Jewish law, halachah, and responsa that can guide us on copyright and the rights and reasonable claims of creators.

1. Dina demalchuta dina (Talmud, Nedarim 28a) – “the law of the government is the law”.

The spirit and purpose of copyright legislation is the preservation of social justice and fairness, which falls clearly in line with Torah principles and Jewish ethics.

2. Zeh neheneh vezeh lo chaseir (Talmud, Bava Kamma 20a) – “One party is helped and the other is not harmed.”

The teaching is that one who derives benefit through another person’s loss is liable to provide compensation. So someone could photocopy, if a) if it was generally true that selling and profiting from the sale of sheet music was not the convention for creators or publishers, or b) the creator or publisher lost nothing by it. Photocopying sheet music is clearly a violation of this Talmudic principle. Why should students, performers, teachers, and conductors – and even manufacturers of ink, photocopiers and paper – benefit from the compositions, further their own career or income from them, without compensating the creators who helped them? Should creators be excluded while so many others profit from the creators’ work? Photocopying sheet music is not a victimless crime. Creators and the staff of publishers are the victims.

3. Hasagat gevul (Talmud, Bava Batra 21b and Tosafot, Kiddushin 59a) – ‘illegal encroachment’

A person may not capitalize on the investment (in time, skill and resources) made by someone else – the profits are the exclusive right of the original ‘investor’. In this case, the investors in the creation of music are the composer, lyricist and publisher; photocopying encroaches on and violates the creators’ business rights.

4. Shiur (Talmud, Bava Metziah, 34a) – the principle of ‘retention’

An owner (or creator in this case) can sell certain rights while retaining others. The convention in international law is that a creator (or publisher) sells the sheet music, but retains the exclusive rights to making copies of the music – which means that the buyer of the sheet music does not buy the right to make more copies.

5. Shalcha shali, v’shali shali, rasha (Pirkei Avot 5:10) – “The one who says ‘What is mine is mine, and what is yours is mine’ is wicked / selfish”.

Someone who says that they can freely copy a piece of sheet music is saying to the creator: “The sheet music that I bought is mine, and the rights to copying it are mine.” The first half of the statement is true, but the second half is untrue in law and selfish: copying rights are exclusively the creator’s and publisher’s.

6. Lo ta’amod al dam re’echa (Leviticus 19:16) – “Do not stand on your neighbour’s blood.”

The creator is our neighbour. Seeing or knowing an illicit copy of sheet music being used, and doing nothing, is wrong.

7. Limdu heiteiv dirshu mishpat, ashru chamotz (Isaiah 1:17) – “Learn to do good. Seek justice. Correct the wrongdoers.”

The creator is powerless to stop people copying or distributing sheet music without their permission, and loses out when they do. Please stop those who do it. Speak out against illicit copying or use of copies.

In essence, copyright law asserts legal and moral property rights, as does Jewish law; the music is the property of the composer, the lyrics are the property of the lyricist, and the sheet music is the combined property of the composer, lyricist and publisher (unless copyright is assigned exclusively to the publisher). The purchaser’s rights extend only to the use and enjoyment of the sheet music, and then, only those copies that they buy. If the reader finds these arguments persuasive, then there is another Talmudic principle to consider:

8. Y’hi mamon chaveir’cha chaviv alecha k’shelach. (Pirkei Avot 2:12) “The property of your fellow should be as precious to you as your own.”

Are we going to protect the property of our fellow, or collude in theft?

For those who are persuaded by the arguments from Jewish ethics, here are two questions: If we expect to pay for religious teachers, service leaders, caretakers and professional music leaders, why not pay for the composers and lyricists of the music we use in synagogue or community choirs? And if we expect to pay for prayer books we pray with, the bibles we read from, the cheder books the children learn with, why not the sheet music we sing from? This question was addressed as long ago as 1623, when Salomone Rossi published ‘Songs by Solomon‘, his collection of Jewish liturgical music. At the time, noted rabbis in Venice endorsed his work, threatening any Jewish person who stole intellectual property, or who bought stolen intellectual property, with: Gezerat irin, ummeimar kadishin, banachash hanoshech – “the decree of angels and the sentence of holy ones, with the biting snake.” (Happily, this very early copyright notice has expired! For an example of Rossi’s music, click here and here.)

Here is one final thought. Just because we love a piece of music doesn’t mean we shouldn’t pay for it. Using or distributing illicit copies of sheet music is prizing what has been created at the same time as trashing the people who created it. Would we be prepared to face a composer or lyricist and say: “I like what you have created so much that I’m going to take it off you. And I’m not going to give you anything in return because a) you don’t deserve it, b) I can get away with it, and c) I simply don’t care about you.”

[1] ‘Copyright in Music: Frequently asked questions relating to copyright in music’ (download PDF), Intellectual Property Guides, Leeds Library & Information Services 2007 – Information compiled by Ged Doonan (Leeds Central Library Patents Information Unit ) with thanks to Ian Nipper – p.1

[2] ibid. p.7

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