The Dead Sea Scrolls Case: Features of Intellectual Property Disputes in Private International Law

Abstract

The case is known around the world as a drama steeped in mystery, international intrigue, professional jealousy, political tension, and conspiracy, which raised the issue of copyright in biblical manuscripts. This legal saga has sparked debate not only in the academic community studying the scrolls, but also among copyright lawyers around the world. The decision of the Supreme Court raises a fundamental question about the choice made of the rule of private international law in the context of copyright and moral rights. The issues to be discussed essentially related to academic freedom, access to unpublished sources, exchange of knowledge and information before publication, possibility of free use of material after publication. More than 2,000 years after it was written and half a century after its discovery, one of the Dead Sea Scrolls finally has a “legitimate” author, according to an Israeli court.

Keywords: Presumption of identity, Copyright, Moral rights

Introduction

The Dead Sea Scrolls are ancient Jewish manuscripts found in the Qumran Caves in the Judean Desert. They were first discovered in the 1950s in Qumran’s “Cave N4”, where 15,000 fragments of various scrolls were found.[1]

Nothing was known about the scrolls until their discovery in the mid-twentieth century. Thousands of fragments in East Jerusalem (then under Jordanian jurisdiction) were studied at the discretion of the Jordanians by a small international team of researchers who had exclusive access to the archaeological materials. The following year, during the Six-Day War, Israel captured East Jerusalem, and the museum came under their control and returned to its old Rockefeller name. Since 1967, the Israel Antiquities Authority has continued this policy of scroll research. The group was determined to keep the scrolls hidden until the official research results were released.[2]

Professor John Strugnell of Harvard University, the first researcher involved in tying the fragments into a single scroll, was appointed to lead the reconstruction of the scrolls.[3] After 2,000 years in a Judean cave, the scrolls required a careful and complex restoration process. The material contained over a hundred fragments of six copies of the scroll - some of the tiny pieces had less than one letter written. Strugnell managed to identify up to a hundred parts of the scroll and join them according to shape and form up to seventy separate fragments. After the physical reconstruction, about a third of the text was missing. The task of decoding required filling in the missing pieces with linguistic and halachic knowledge, which he did not possess.[4] In 1981, the head of the group hired researcher Elisha Qimron, a professor of Jewish language and philology at Ben-Gurion University in Beersheva. For the next 11 years, Qimron dedicated his work to this challenging task. He reconstructed a 121-line text from seventy fragments, with 40% of the content filling the gap. After completing most of the work, he called the scroll “The Laws of the Torah”.[5]

While working on the material, Qimron and Strugnell gave various researchers several copies of the draft text for comments. In 1991, after the decipherment was completed, an agreement was reached between Qimron, Strugnell, and the English Oxford Press to publish the deciphered text with photographs of scroll fragments and Qimron's comments. However, the Polish scholar Kapera published it in The Qumran Chronicles without permission. As a result of the intervention of the Israel Antiquities Authority, further circulation was stopped, and the organization apologized.[6]

By the 1990s, less than 50 per cent of the scrolls had been published. The unpublished “Torah Laws” scroll was housed in the Rockefeller Museum in East Jerusalem, with photographs stored for safekeeping in various locations worldwide, including the Huntington Library in California. In 1991, the library announced that photocopies should be available to academic circles. For four decades, monopolized access to materials has angered scientists who have been denied access to archaeological treasures. Herschel Shanks, editor of the Review of Biblical Archeology[7] and a prominent opponent of monopoly access, published The Dead Sea Scrolls - Facsimile Edition, edited by Eisenman and Robinson. The edition contained photographs of hundreds of fragments of the scrolls; the book had a “publisher’s introduction” written by Shanks and several appendices, including one copy of the deciphered text, without Qimron's permission or credit for his name.[8]

In January 1992, Qimron filed a lawsuit in the Jerusalem City Court, seeking an injunction against Shanks and the editors from publishing the book containing the deciphered scroll text and damages for copyright infringement.[9] He decided to apply an interim measure pending a final decision. In February 1992, an interlocutory judge’s decision prohibited the defendants from publishing or distributing the book in Israel or abroad. Before the temporary ban was applied, approximately 200-300 copies of the book were sold, mainly in the United States, with three copies sold in Israel.

In March 1993, the court ruled that Professor Qimron’s statutory copyright had been infringed and as requested, prohibited the book’s publication in this form. The defendants were ordered to pay the plaintiff NIS 100,000 (National currency of Israel - New Shekel): NIS 20,000 in statutory damages and NIS 80,000 in moral damages.* They were also ordered to pay the professor’s attorney fees of NIS 50,000. The court recognized, on the one hand, Qimron’s copyright on the deciphered text and, on the other hand, the violation of moral rights by publishing the text without mentioning the name.[10]

1. Presumption of Identity: Is Israeli Law Similar to American Law?

The court found that the offence occurred in the United States of America, however, the decision was made based on Israeli law because it used the presumption of identity (The presumption of identity of the laws) – “In the absence of contrary evidence, the law in a foreign jurisdiction is the same as the law of the court country”.[11] Applying foreign law is not a trivial matter. Israeli private international law, influenced by Anglo-American law, treats foreign legislation as a matter of fact and not as a matter of law. It is assumed that the local judge is unfamiliar with foreign law, so the parties confirm its content. When a foreign law remains unexplained (unproven) for some reason, the court resorts to the legal fiction that it is identical to local law.[12] Judge Dorner, presented with no evidence of US law, applied Israeli law based on the principle of equivalence of laws. He pointed out that using the presumption of identity was not a fiction because both laws (American and Jewish) originated in English law. Although Israeli copyright law was indeed based on the British Copyright Act of 1911 at the time, American law was not influenced by it for nearly 200 years.[13]

Jewish judges are generally familiar with foreign law, mainly English and American. They have access to libraries with rich foreign material and case law. Judge Dorner used three American cases in deciding the dispute.[14] He also cited the US copyright treatise Nimmer and the English copyright treatise Copinger. The examples cited demonstrated an additional source of knowledge for the judge rather than the application of foreign law.[15]

The defendants objected to the presumption of identity and the application of Israeli law in the case, arguing that Qimron did not establish the law of the place of the offence; “thus, it did not allege the facts forming the basis of the claim”. Shanks, the Society for Biblical Archeology and the editors appealed the decision. They pointed out that Qimron’s rights were not violated in Israel. Therefore, he had no cause of action under Israeli law, and there were no circumstances to apply Jewish law. According to them, deciphering the scroll was nothing more than a reconstruction of an existing work. The defense of the reconstruction of the text undermined scientific research by giving one person ownership of “part of the cultural heritage of the Jewish people”. Their publication of the text conformed to “scientific convention” and enjoyed protection as a publication made with Qimron’s implied consent. Qimron himself circulated the deciphered material among researchers. Therefore, publishing without mentioning his name did not violate his moral right. In the complaint, they claimed that they did not cause the material damage corresponding to the compensation claim, and they considered the amount charged for the lawyer’s services and moral damage excessive.[16]

The defendants clearly claimed the “monopoly” granted to an international group of researchers, which prevented many scholars from studying the scrolls. The book’s publication “made a great contribution to the study of the scrolls, and in this way alone ended the existing monopoly”.[17]

2. On the Anglo-American Copyright Law

All major English translations of the Bible, other than the authorized version, are copyrighted.[18] Some ancient Bible manuscripts used for translations are also copyrighted. Violating these rights leads to lawsuits against those who reproduce the Bible for Christian servants without the permission of the copyright holders. Naturally, a theological question arises: Should mortals who believe in the Bible as the Word of God have copyright over it?[19]

Some scholars worry that copyright extends to God’s Word. Others believe that this way, the Bible is protected from counterfeiting[20] and is a financial gainer that is used to translate, print, and subsidize it in third-world countries. As copyright is known to be related to property, should the Bible or its translation be subject to intellectual property, given its divine origin?[21]

The first copyright legislation in England was the Statute of Anne 1709, which provided that “the author shall have permission for fourteen years to print and reprint books”. In 1774, the House of Lords considered the famous case of Donaldson v. Beckett,[22] where the copyright on several poems had expired, and the publisher sought a publication ban. On the other hand, Donaldson, the copyist, argued that copyright could not be part of the common law because reproduction had never been an illegal act since time immemorial. He stated: “The law at common law must be based on the principles of morality and natural law. Copies of books have always existed, and copies have always been made. And yet, that one man alone should have had the exclusive privilege of reproducing copies has never been dictated by natural law in any age or country. Since antiquity, it has been the right of every individual to transcribe or copy a book; no author enjoys the possibility that they alone have the perpetual right to produce copies. Printing, a more rapid reproduction method, cannot change the principles of justice and injustice. After centuries of silence, common law cannot immediately declare this new type of right connected with property, no matter how much the authors may encourage it. Anne’s new copyright legislation is not a declaratory piece of common law; it was introduced to enable educated people to acquire property they did not have before”. Beckett, the publisher, argued that copyright was indeed part of the common law, as he believed it was fair for the author to receive a profit. He stated: “The claim of authors to the sole and exclusive right to print and publish their works is based on common sense and natural law principles. It is only fair and lawful that those who communicate their ideas to the public in written compositions should be remunerated. Authors retain the right to reproduce hard copies for profit from the publication of their work. There is an implied agreement that the buyer shall not infringe upon the reproduction copyright in selling a particular copy. In England, from the earliest days of introducing the art of printing, this peculiar property has been known by the name of copyright”.[23]

Not all countries recognize moral rights in copyright law. Nevertheless, copyright also includes moral rights, which provide the opportunity to receive royalties in case of infringement of the work. “One component of sophisticated copyright law is the recognition that, in addition to protecting property rights, copyright also applies to moral rights”.[24]

Modern copyright law provides for property and moral rights. Moral rights include:

1. The author’s right to be recognized as the author of the work;


2. The author’s right to prevent changes and protect their work from distortion or other interference.


3. The author’s right to withdraw the work and stop its publication;


4. The right not to be recognized as the author of someone else’s work.[25] While property rights are transferable, moral rights remain with the author.[26]

In 1789, copyright provisions were added to the US Constitution. US copyright doctrine has evolved freely from the influence of any theory. In 1884, the Supreme Court heard a case involving a contemplative pose of Oscar Wilde photographed by Napoleon Saron. During the discussion, the question arose of whether it is possible to qualify the photographer as an “author” under the Constitution. The court stated: “The author is the one who participated in the creation. An inventor, a producer, one who creates a scientific or literary work”.[27] It is hardly surprising that the Supreme Court recognized the beauty of Wilde’s Saronic portrait and ruled that it was the author’s work, not the device’s. This work was not a “conventional” example of photographic production. The court had to translate the camera’s inanimate labor into the artist’s creative expression. Thus, the question remained: Who created the artistic photograph: the photographer or the camera?[28] Could the photograph be copyrighted? The court noted: “The photographer gave a visible form to the posing of the mentioned Oscar Wilde in front of the camera by selecting and placing the costume, curtains, and various accessories. Arranging the subject to present graceful contours, distributing light and shadow, and sculpting the desired expression, as a result of such disposition and arrangement, he created a photograph. These findings demonstrate that the photograph is an original work of art, a product of the plaintiff’s intellectual creation, of which he is the author”.[29]

Two decades later, the Supreme Court debated whether a circus poster was copyrightable. Judge Holmes stated: “It would be a dangerous undertaking for persons qualified in the law alone to appreciate the narrowest and most extreme values of pictorial illustrations. Sometimes, works of genius are underappreciated. The novelty in them is unacceptable until the public learns the new language in which their author speaks. It is doubtful, for example, that paintings by Goya or Manet would have benefited from copyright protection after they were first seen. If the images are of any public interest, they have commercial, not aesthetic, educational value. The value of these pictures is explained by the desire to reproduce them”.[30]

3. Does Professor Qimron own the copyright?

Does Qimron have a copyright on the decrypted text? First, let us define the work he worked on for eleven years. We must distinguish two primary components of the deciphered scroll. One is the physical, tangible “raw material”, or fragments, created about 2,000 years ago and found at Qumran. The second component turned the collection of scroll fragments into a decipherable text by restoring, sequencing, and filling in the gaps. In other words, breathing life into the fragments makes them a meaningful and living text.[31]

According to Article 35 (1) of the Israeli Copyright Law, a “literary work” that may be subject to copyright includes, inter alia, compilations. According to this definition, “copyright may subsist in a unique edit or design” as long as it is considered “an original work because of the thought, labor, and skill embodied in it”.[32] Thus, a “literary work”, as the term is used in the Act, will benefit from copyright protection only if the work is original. The requirement of originality is somehow omitted in the official Jewish translation of the Act, although it is reproduced in the first section of the English Act: “Every original literary, dramatic, musical and artistic work”. According to the English norm, copyright protection is provided not for an abstract idea, but for a tangible expression of an idea. The work must come from its creator, the author, and not be copied from another work. Although the author has used already existing material, although it sufficiently reflects independent efforts and his own talent, the work will be subject to protection.[33]

4. The concept of originality in copyright law

The primary purpose of copyright law in the United States is to “promote the progress of science and art. This goal serves the motivation of authors to create scientific and artistic works”. Thus, a work that is “an original work of authorship is subject to protection in order to encourage more similar authorship in the future, which should ultimately bring about the desired progress in intellectual production”. Copyright protects “original works of authorship”, i.e. works created by those who claim protection.[34]

“Authorship” implies a necessary connection between the creator and the work. The work must originate from the author, with the minimum required quality. “It cannot be copied”. Authorship, originality, and protection cannot exist if the claimant acts as a mere conduit – when the work’s origin (verifiable facts or earlier text fragments) is only another source. Thus, protected works are “based on the creative abilities of the mind, are the fruit of intellectual labor, embodied in the form of books, prints, engravings and others”. The law expressly requires only a minimal dose of originality to maintain copyright protection: “It is sufficient if the author owns the work”.[35]

5. Decision of the Supreme Court

While the case was pending in the Supreme Court, Qimron published his work, and Shanks published a second edition of the book without the deciphered text.[36]

On August 30, 2000, a panel of the Supreme Court agreed with the lower Court’s decision, adding that Shanks had to give Qimron any copies of the book he still had in his possession. The Court ruled that Israeli law applied to the case. The decipherment contained enough originality and creativity to qualify for copyright. Thus, Professor Qimron was deemed to be the copyright holder. In its deliberations, the Court articulated some basic principles of copyright: compilations of raw material may be subject to copyright protection; An expression deserves protection, not an underlying idea; The claim of originality refers to the author and not to another source.[37]

The court considered the appellants’ claims that the application of public policy should have led to the denial of copyright to the deciphered text. Shanks and the editors argued that copyrighting the deciphered text would prevent other scholars from criticizing Qimron’s work and would generally prevent the public interest in scroll research. The court explained that Qimron’s copyright did not prevent anyone from studying, deciphering, arranging the fragments and filling in the gaps. Therefore, anyone could have done it using methods different from Qimron’s and benefited from copyright protection. It was a “multi-factor” equation that anyone could try to solve to fit different “definitions” into place.[38] The court ruled that Shanks had infringed Qimron’s copyright. He claimed that a Polish researcher published the deciphered text for the first time. According to the scholarly convention, once published, the author’s consent to allow further use of the text without obtaining his permission was implied.[39]

The Israeli Supreme Court did not clarify whether the presumption of identity was applied correctly. Moreover, it did not use the presumption and applied it directly to Israeli law because three copies of the publication were sold in Israel, and therefore, copyright infringement occurred in that country. In doing so, the Court confirmed Israel’s choice of private international law norms regarding copyright and moral rights issues.[40] How would the dispute be resolved if the Court applied US law? Does American law provide a precise answer? The answer to this question is the main principle of copyright law – the requirement of originality.[41]

Conclusion

The Supreme Court found that by sending three copies of a book published and ordered in the United States to Israel, the unauthorized publication of the consolidated text took place in Israel. Copyright requires that the author’s name be indicated on the work in the usual way.[42]

The author of the scroll is long dead. What did Qimron do? He restored the scroll, deciphered the text of the fragments, and filled in the gaps in them. Over the years, selfless work, impressive talent, and profound knowledge combined to decipher the text. Qimron did not claim to have written anything himself; he did not create the text himself or arrange the fragments randomly. He claimed to have restored the original text written at the time of the origin of Christianity. According to the court, studying the work with different phases reveals originality and creativity. Qimron’s work was not technical, “mechanical”, the result of simple labor.[43]

Bibliography

1. Birnhack, D. M. (2001). The Dead Sea Scrolls Case: Who is an Author, European Intellectual Property

Review Case Comment, Sweet and Maxwell Limited and Contributors.

2. Birnhack, D. M. (2001). The Dead Sea Scrolls Case – Translation.

3. Farley, C. H. (2004). THE LINGERING EFFECTS OF COPYRIGHT’S RESPONSE TO THE INVENTION OF PHOTOGRAPHY, UNIVERSITY OF PITTSBURGH LAW REVIEW, vol 65.

4. MacQueen, H., (30 August 2008). The Scrolls and the Legal Definition of Authorship Edinburgh University.

5. Nimmer, D., (2001). HOUSTON LAW REVIEW, COPYRIGHT IN THE DEAD SEA SCROLLS, AUTHORSHIP AND ORIGINALITY

6. STEWART, S. M., (1989). INTERNATIONAL COPYRIGHT AND NEIGHBORING RIGHTS, Butterworths 2^nd ed.

7. Syn, R., (2001-2002). © COPYRIGHT GOD: ENFORCEMENT OF COPYRIGHT IN THE BIBLE AND RELIGIOUS WORKS, REGENT UNIVERSITY LAW REVIEW, Volume 14, Number 1, HeinOnline.

8. Tempska, U., (2002). “Originality” After the Dead Sea Scrolls Decision: Implications for the American Law of Copyright, Intellectual Property Law Review, Volume 6, Issue 1, Article 5. <http://

scholarship.law.marquette.edu/iplr/vol6/ iss1/5>

9. Wilkof, N., (2001). COPYRIGHT, MORAL RIGHTS AND THE CHOICE OF LAW: WHERE DID THE DEAD SEA SCROLLS COURT GO WRONG? HOUSTON LAW REVIEW.

10. Berne Convention for the Protection of Literary and Artistic Works 1986, <https://www.wipo.int/

treaties/en/ip/berne>

Footnotes

[1] On the slopes of the Judean desert near the Dead Sea between 1947 and 1956, more than 800 ancient manuscripts were discovered in caves. They contained texts from all but one book of the Bible (the book of Esther). The rest of the manuscripts were ancient, non-biblical Hebrew texts: apocrypha and pseudo-epigraphs. Needless to say, the scrolls provide direct evidence of the period of consolidation of Judaism and the rise of Christianity, and it is no wonder that they are considered one of the most important archaeological discoveries of the twentieth century. Birnhack, D. M. (2001). THE DEAD SEA SCROLLS CASE: WHO IS AN AUTHOR, European Intellectual Property Review Case Comment, Sweet and Maxwell Limited and Contributors, 1. Birnhack, D. M. (2001). The Dead Sea Scrolls Case –

[2] Nimmer, D., (2001). HOUSTON LAW REVIEW, COPYRIGHT IN THE DEAD SEA SCROLLS AUTHORSHIP AND ORIGINALITY, 54, 55, 56.

[3] Professor of the Harvard University - Strugnell noted: is unique in language, style, and content. Using linguistic and theological analysis, the original text has been dated as one of the earliest works of the Qumran sect. Together the six fragments provide a composite text of about 130 lines, which probably cover about two-thirds of the original. The initial part of the text is completely missing. Nimmer, D., (2001). HOUSTON LAW REVIEW, COPYRIGHT IN THE DEAD SEA SCROLLS AUTHORSHIP AND ORIGINALITY, 58.

[4] Strugnell’s report: Elisha Qimron and John Strugnell, “Qumran Cave 4”, Miqsat Ma’ase Ha-Torah, in X Discoveries in the Judaean Desert 1994, Birnhack, D. M. (2001). THE DEAD SEA SCROLLS CASE: WHO IS AN AUTHOR, European Intellectual Property Review Case Comment, Sweet and Maxwell Limited and Contributors, 3.

[5] Birnhack, D. M. (2001). THE DEAD SEA SCROLLS CASE: WHO IS AN AUTHOR, European Intellectual Property Review Case Comment, Sweet and Maxwell Limited and Contributors, 3.

[6] Nimmer, D., (2001). HOUSTON LAW REVIEW, COPYRIGHT IN THE DEAD SEA SCROLLS AUTHORSHIP AND ORIGINALITY, 68.

[7] The Society for Biblical Archeology (“BAS”), based in the United States, published the Biblical Archeology Review (“BAR”). It had more than half a million readers in many countries of the world, including Israel. Birnhack, D. M. (2001). The Dead Sea Scrolls Case – Translation, 2, 4.

[8] Since the late 1980s, no controversy has been more heated than that surrounding access to the scrolls and the movement to accelerate their publication. The push by scholars to gain what the “Biblical Archaeology Review” characterized as “intellectual freedom and the right to scholarly access” has had significant results. In 1988, the administration for scroll research, the Israel Antiquities Authority, began to expand the number of scroll assignments. By 1992, they included more than fifty scholars. In 1991, a computer-generated version as well as a two-volume edition of the scroll photographs were published by the Biblical Archaeology Society. Nimmer, D., (2001). HOUSTON LAW REVIEW, COPYRIGHT IN THE DEAD SEA SCROLLS AUTHORSHIP AND ORIGINALITY, 66, 67.

[9] This is, of course, a literal translation. However, in Israeli law “copyright” is translated in European style as “author’s right”. Birnhack, D. M., (2001). The Dead Sea Scrolls Case – Translation, 4.

* In March 1993, it was about US$36,000. $1=2.764 NIS.

[10] Birnhack, D. M. (2001). The Dead Sea Scrolls Case – Translation, 5.

[11] The court noted: “Everyone agrees that the dispute must be governed by the law of the place of infringement, that is, the law of the United States. Undoubtedly, this law has not been confirmed”. The court relied on the fact that the books were sent to Israel. Thus, some of the sales were made in this country as well. Based on Shanks’ testimony and the evidence presented, it appeared that BAS sent three copies of the book to readers in Israel. Although the order was placed and payment was made in the United States, the court found BAS’s sending of the decrypted text to Israel sufficient to find infringement of Qimron’s copyright in Israel. Accordingly, he considered this the basis for applying Israeli law. Birnhack, D. M. (2001). The Dead Sea Scrolls Case – Translation, 6.

[12] Birnhack, D. M. (2001), THE DEAD SEA SCROLLS CASE: WHO IS AN AUTHOR, European Intellectual Property Review Case Comment, Sweet and Maxwell Limited and Contributors, 8.

[13] The unique development of Israeli copyright law should be considered. The Jewish legal system is based on common law, with elements of continental law added over the years. Israeli copyright law was based on the UK Copyright Act of 1911 and the Copyright Ordinance, used in Palestine in 1924, and became part of Israeli law in 1948. The Moral Rights Act was added in 1981. In 1999, several significant changes were made to the law to meet the requirements of TRIPS (Agreement on Trade-Related Aspects of Intellectual Property Rights). Section 4 a (1) of the Israeli Copyright Ordinance states, “The author has the right to use his name on his work, in the manner and form accepted.” Over the years, Israeli copyright law has differed somewhat from its English counterpart. Birnhack, D. M. (2001), THE DEAD SEA SCROLLS CASE: WHO IS AN AUTHOR, European Intellectual Property Review Case Comment, Sweet and Maxwell Limited and Contributors, 7. Wilkof, N., (2001). COPYRIGHT, MORAL RIGHTS AND THE CHOICE OF LAW: WHERE DID THE DEAD SEA SCROLLS COURT GO WRONG? HOUSTON LAW REVIEW, 465.

[14] Including the 1991 case of Feist Publications v. Rural Telephone Service Co, where the court found the intellectual contribution of the alphabetization of names too minimal to benefit from copyright protection. The CEO of a local telephone company decides to create a telephone directory of the best databases. After carefully designed surveys, it categorizes the communities to be included in the company’s produced directory in a new and innovative way. He spends much time researching the alphabetization of surnames, paying detailed attention to patronymics, hyphenated surnames, and other unusual combinations that his predecessors never did. As a result, the created telephone book is, according to his assessment, “a work of art”. Does it deserve copyright protection? According to the judge's ruling, while a phone book may contain copyrighted material (e.g. prefaces and yellow pages) when it comes to the alphabetical white pages, copyright does not apply to it. Nimmer, D., (2001). HOUSTON LAW REVIEW, COPYRIGHT IN THE DEAD SEA SCROLLS AUTHORSHIP AND ORIGINALITY, 20.

[15] Birnhack, D. M. (2001), THE DEAD SEA SCROLLS CASE: WHO IS AN AUTHOR, European Intellectual Property Review Case Comment, Sweet and Maxwell Limited and Contributors, 9.

[16] Birnhack, D. M. (2001). The Dead Sea Scrolls Case – Translation, 5, 6.

[17] 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.” Birnhack, D. M. (2001). The Dead Sea Scrolls Case – Translation,7.

[18] Translations, adaptations, musical arrangements, and other adaptations of works of literature or art are protected as original works without prejudice to copyright in the original works. Berne Convention for the Protection of Literary and Artistic Works of September 9, 1886, Article 2(3).

[19] The term “Authorized Version” refers not only to the King James Version published in 1611, but also includes earlier translations authorized by the Church of England. In 1875 in New York, Lesser v. In Sklarz, the defendant argued that the Bible existed outside of human memory. Such books should not have been subject to copyright protection. The judge patiently listened to the long discussion and granted the plaintiff’s request. Syn, R., (2001- 2002). © COPYRIGHT GOD: ENFORCEMENT OF COPYRIGHT IN THE BIBLE AND RELIGIOUS WORKS, REGENT UNIVERSITY LAW REVIEW, Volume 14, Number 1, HeinOnline,1,2,12,13.

[20] Property rights ensure financial benefits from the sale of the Bible, while moral rights are non-economic, protecting against forgery and plagiarism. For example, in the 1972 case Robert Stigwood Group v. O’Reilly, priests sued to modify the opera Jesus Christ Superstar because they believed it was a parody of the true gospel. The modified version presented Jesus as a strong, masculine individual who did not rise from the dead but simply died. According to them, Christianity is empty and futile if Jesus did not rise from the dead. Syn, R., (2001-2002). © COPYRIGHT GOD: ENFORCEMENT OF COPYRIGHT IN THE BIBLE AND RELIGIOUS WORKS, REGENT UNIVERSITY LAW REVIEW, Volume 14, Number 1, 14.

[21] These profits, however, come from subjecting the Bible to monopolies and royalties. Irrespective of the benefits, is there a dilemma in withholding the Bible and its free message if royalties are unpaid? Copyright involves ownership, so in view of its purported divine origin, should the Bible, or even a Bible translation, be owned as private intellectual property? Syn, R., (2001-2002). © COPYRIGHT GOD: ENFORCEMENT OF COPYRIGHT IN THE BIBLE AND RELIGIOUS WORKS, REGENT UNIVERSITY LAW REVIEW, Volume 14, Number 1, 2.

[22] Syn, R., (2001-2002). © COPYRIGHT GOD: ENFORCEMENT OF COPYRIGHT IN THE BIBLE AND RELIGIOUS WORKS, Roger Syn, REGENT UNIVERSITY LAW REVIEW, Volume 14, Number 1, 5.

[23] The House of Lords decided, twenty-two to eleven to allow Donaldson to copy the poems, which confirmed that copyright protected published books only for the statutory term, after which they entered the public domain. Syn, R., (2001-2002). ©COPYRIGHT GOD: ENFORCEMENT OF COPYRIGHT IN THE BIBLE AND RELIGIOUS WORKS, REGENT UNIVERSITY LAW REVIEW, Volume 14 Number 1, 5.6.

[24] Nimmer, D., (2001). HOUSTON LAW REVIEW, COPYRIGHT IN THE DEAD SEA SCROLLS AUTHORSHIP AND ORIGINALITY, 231. Violation of moral rights may have indirect economic consequences caused by damage to the identity of the author or work, whereas economic rights involve the direct ability to require royalties. Syn, R., (2001-2002). © COPYRIGHT GOD: ENFORCEMENT OF COPYRIGHT IN THE BIBLE AND RELIGIOUS WORKS, 13.

[25] Syn, R., (2001-2002). ©COPYRIGHT GOD: ENFORCEMENT OF COPYRIGHT IN THE BIBLE AND RELIGIOUS WORKS, 13.

[26] Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation, or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation. Berne Convention for the Protection of Literary and Artistic Works of September 9, 1886, Article 6 (1).

[27] In the 2000 case of Aalmuhammed v. Lee, the Supreme Court focused on the “mind of the master”, not the poseur. Nimmer, D., (2001). HOUSTON LAW REVIEW, COPYRIGHT IN THE DEAD SEA SCROLLS AUTHORSHIP AND ORIGINALITY, 11.

[28] During the discussion, the question arose: How could the sharp gesture of clicking the shutter be compared to the stroke of a brush? The court saw the author’s vision in selecting and arranging poses, costumes, and accessories. According to the court, he discovered the author’s handwriting in these actions. The judge did not discuss how the photographer can manipulate the image. Surprisingly, retouching, recycling, cropping, framing, redeveloping, and coloring abilities are not discussed. Moreover, the so-called “Art photographers” used this technique. The court focused only on the actions of the former shutter and not on the proceedings. However, the author’s work was completely separated from the work of the camera. Farley, C. H. (2004). THE LINGERING EFFECTS OF COPYRIGHT’S RESPONSE TO THE INVENTION OF PHOTOGRAPHY UNIVERSITY OF PITTSBURGH LAW REVIEW, vol 65, 389, 390, 391.

[29] Nimmer, D., (2001). HOUSTON LAW REVIEW, COPYRIGHT IN THE DEAD SEA SCROLLS AUTHORSHIP AND ORIGINALITY, 12.

[30] Bleistein v. Donaldson Lithographing Co., 188 U.S. (1903). Nimmer, D., (2001). HOUSTON LAW REVIEW, COPYRIGHT IN THE DEAD SEA SCROLLS AUTHORSHIP AND ORIGINALITY, 12.

[31] Qimron carried out combined work: physically aggregating the fragments and their arrangement, decoding the text, and filling in the blanks. In the fragments of the scrolls, he placed the “soul” with the merit of his knowledge and talent. Did his actions make the decrypted text a protected work? Birnhack, M. (2007), The Dead Sea Scrolls Case – Translation, Faculty of Law, Tel-Aviv University, 8, 9.

[32] Birnhack, M. (2007), The Dead Sea Scrolls Case – Translation, Faculty of Law, Tel-Aviv University, 9.

[33] Ibid.

[34] U.S. CONST. art I, §8, cl. 8 Congress has the power to promote the progress of science and art by providing authors and inventors with limited-time exclusive rights to their works and discoveries. Tempska, U., (2002). “Originality” After the Dead Sea Scrolls Decision: Implications for the American Law of Copyright, Intellectual Property Law Review, Volume 6, Issue 1, Article 5, 121,122. <http://scholarship.law.marquette.edu/iplr/vol6/iss1/5> [Last viewed: September 26, 2022]

[35] Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., U.S. 1879; Alfred Bell & Co. v. Catalda Fine Arts, Inc., 2d Cir. 1951. Urzula Tempska, U., (2002). “Originality” After the Dead Sea Scrolls Decision: Implications for the American Law of Copyright, Intellectual Property Law Review, Volume 6, Issue 1, Article 5, 121, 122.

[36] In 1994, Oxford University Press published an edition, edited by Qimron and Strugnell, which contained the remark: © Elisha Qimron 1994. MacQueen, H., (30 August 2008). The Scrolls and the Legal Definition of Authorship Edin-burgh University, 2, 3.

[37] Birnhack, D. M. (2001), THE DEAD SEA SCROLLS CASE: WHO IS AN AUTHOR, European Intellectual Property Review Case Comment, Sweet and Maxwell Limited and Contributors, 5.

[38] Birnhack, D. M. (2001), THE DEAD SEA SCROLLS CASE: WHO IS AN AUTHOR, European Intellectual Property Review Case Comment, Sweet and Maxwell Limited and Contributors, 5, 6.

[39] Birnhack, D. M. (2001), THE DEAD SEA SCROLLS CASE: WHO IS AN AUTHOR, European Intellectual Property Review Case Comment, Sweet and Maxwell Limited and Contributors, 6.

[40] Wilkof, N., (2001). COPYRIGHT, MORAL RIGHTS AND THE CHOICE OF LAW: WHERE DID THE DEAD SEA SCROLLS COURT GO WRONG? HOUSTON LAW REVIEW, 464.

[41] Birnhack, D. M. (2001), THE DEAD SEA SCROLLS CASE: WHO IS AN AUTHOR, European Intellectual Property Review Case Comment, Sweet and Maxwell Limited and Contributors 9, 10, 11. Originality means that the work originates from the author and not another source. However, a (minimal) investment of skills and labor is required. The US Supreme Court, in the famous Feist case, solved this difficult task by stating that the compilation of a telephone book does not confer copyright on the compilation unless the selection and arrangement of facts are original. In England, the requirement of originality implies that the author creates the work independently, with a minimum degree of labor and skill. MacQueen, H., (30 August 2008). The Scrolls and the Legal Definition of Authorship Edinburgh University, 3, 4, 5.

[42] Wilkof, N., (2001). COPYRIGHT, MORAL RIGHTS AND THE CHOICE OF LAW: WHERE DID THE DEAD SEA SCROLLS COURT GO WRONG? HOUSTON LAW REVIEW, 464, 465, 466.

[43] Birnhack, D. M. (2001), THE DEAD SEA SCROLLS CASE: WHO IS AN AUTHOR, European Intellectual Property Review Case Comment, Sweet and Maxwell Limited and Contributors 12, 15.