A Jewish Perspective on Copying Sheet Music

Alexander Massey


As a performer, music teacher, choir leader, liturgical leader and composer, I have had to navigate the complicated world of music copyright for almost 40 years. I have written in another thread on what I see as the general moral and logical case for granting financial recognition to the creators (composers, lyricists, publishers) for every copy of the sheet music we use. In this article, I would like to suggest a Jewish case against the copying of music.

(For the purposes of this article, the word ‘copying’ includes: photocopying; scanning; sending or posting digital versions; creating a handwritten version; transcribing; arranging; making modifications to melodies, harmonies or rhythms whilst clearly intending to create a version that is based on the original piece.)

Copyright law is internationally upheld as a fundamental right for composers, writers and publishers for good reasons. However, composers and publishers typically hugely lose out financially to the practice of people copying, transcribing, writing out versions and arranging their music instead of buying it. Because of these practices, not only do composers and publishers lose, but they become endangered species - the creation of high quality music is put at risk, and ultimately everyone loses.

Under the principle of ‘Fair Use’, copyright law provides for educators (NB not ‘performers’, ‘choirs’ or ‘liturgical leaders’) to photocopy for teaching purposes within clear limitations under the principle of ‘Fair Use’. (NB What I write here does not constitute legal advice, and readers are solely responsible for their own decisions, actions and all resulting outcomes.) Broadly speaking, my understanding is that:

  1. 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.
  2. Sheet music may not be copied for course packs – permission from the composer / publisher must be obtained.
  3. 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 [songleaders and choir leaders take note!!]; students may not be charged beyond the cost of the photocopying; each copy should include a notice of copyright.

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

  • Dina demalchuta dina (Talmud, Nedarim 28a) - This means literally, "the law of the government is the law", which means that, unless there are obvious Torah-based reasons for not doing so, we should follow the law of the land in which we live and work. 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.

  • Zeh neheneh vezeh lo chaseir (Talmud, Bava Kamma 20a). This means: “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 copy, if a) if it was generally true that selling and profiting from the sale of sheet music was not the convention for composers or publishers, or b) the composer or publisher lost nothing by it. Copying sheet music is clearly a violation of this Talmudic principle. Copying is not a victimless crime.

  • 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 and publisher; copying encroaches on and violates the creators’ business rights.

  • Shiur (Talmud, Bava Metziah, 34a): This is the principle of ‘retention’, by which an owner (or creator or composer in this case) can sell certain rights while retaining others. The convention in international law is that a composer (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.

  • 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 claims that they can freely copy a composer’s music is saying to the composer: “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: copying rights are exclusively the composer’s and publisher’s.

  • Lo ta'amod al dam re'echa (Leviticus 19:16) "Do not stand idly by the blood of your neighbour." In copyright terms, we must not stand idly by and do nothing when we see a copy of sheet music being used; the composer and publisher are our neighbours. Are we happy to say and do nothing when we see someone stealing from them?

  • Limdu heiteiv dirshu mishpat, ashru chamotz (Isaiah 1:17): “Learn to do good. Seek justice. Correct the wrongdoers.” The composer and publisher are powerless to stop people copying sheet music, and loses out when they do. Are we going to do what we can to stop people doing it?

Are we going to stop ourselves? Should we bother?

Alexander Massey
http://www.alexandermassey.com
Oxford, August 2013


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