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Jewish World Review April 14, 1998 / 18 Nissan, 5758 Dead Sea Scroll

The case of the 2000 year-old copyright

By Abraham Rabinovich

JERUSALEM -- The document at the heart of the appeal which reached the Israeli Supreme Court last month could hardly have been older --- a Dead Sea Scroll written about 150 BCE.

But what drew the attention of the international legal community to the case was the likelihood of a precedent-setting ruling on that most modern of legal concepts --- intellectual property rights.

At issue were the rival copyright claims of an Israeli scholar who had spent 11 years reconstructing the tattered scroll and a Washington publisher who maintained that copyright died with the scroll's author some 2000 years ago.

The badly fragmented document was among the Dead Sea Scrolls found a half-century ago. Even when pieced together, great chunks of the text were missing. For three decades the document remained undeciphered.

In the early 1980s, a young Israeli scholar, Elisha Qimron, undertook the job. The painstaking task involved not only reading the often obscured script but filling in the gaps, about 40 percent of the original text, with conjecture about what had been written. This educated guesswork was based on Qimron's intimate knowledge of the language and concepts of the Dead Sea sect and of a broad spectrum of relevant Jewish writings from antiquity.

It took him 11 years but his reconstruction showed the document to be one of the most important of the Dead Sea scrolls, a letter that may have been written by none other than the founder of the Dead Sea sect, the Teacher of Righteousness. The letter cites the practices and beliefs that set the sect apart from mainstream Judaism. The name Qimron gave it was Miktzat Ma'aseh haTorah (Some of the Precept of the Torah), a phrase used in the letter. In short, MMT.

Before publishing his reconstruction, Qimron sent copies to four colleagues abroad for comment. Bootleg copies were Xeroxed and circulated without Qimron's knowledge. One was published in a Polish scholarly newsletter. Subsequently, Washington publisher Hershel Shanks published MMT in an archaeology book without crediting Qimron with the reconstruction.

Infuriated, Qimron sued. In Jerusalem District Court, his lawyers claimed infringement of Qimron's copyright to MMT. "These people did it because they thought I wouldn't sue," said the scholar. "They're rich and influential people and they don't fear me."

Shanks, who publishes the popular glossy, Moment, told the court that he had been unaware that the document was a laborious reconstruction. However, when asked whether he would have published it even if he had known, he replied "correct". The judge ruled in Qimron's favor and obliged Shanks to pay damages.

A Supreme Court ruling on whether copyright can apply to a reconstruction, not only to an original work, is a precedent that could be cited in foreign courts as well. At the hearing on Shanks' appeal, an attorney representing the Committee of Concerned Intellectual Property Educators, an American organization, asked for permission to submit a brief as amicus curiae, a friend of the court.

Shanks' attorney, Prof. Dov Frimer, contended that the lower court ruling has induced a "chilling effect" on scholarship by inhibiting the give-and-take of academic research with copyright restrictions. An associate, Yanina Hoffman, argued that Qimron had not created anything original. "There is no authorship here," she said in an interview. "He discovered facts. He had to have the skill and knowledge to know where to look for the clues but he didn't create what the clues led him to. Another scholar with the same knowledge would have arrived at the same facts."

Qimron's attorney, Jakob Melcer, suggested to the court an hypothesis in which a Latin translation of the original letter had been found, including the parts missing from the Hebrew text. "If Qimron had only filled in the missing parts by translating back from the Latin version into the Hebrew used at Qumran -- and he's the world's leading expert on the language and grammar of the Dead Sea sect -- he would be entitled to copyright because translations are entitled to copyright. But what he actually did, recreating the missing parts from nothing, was incredibly more creative."

The Supreme Court is to decide within a few months whether Qimron is entitled to copyright to MMT or whether copyright, long lapsed, should remain with the Teacher of Righteousness.

Abraham Rabinovich is JWR's Israel Correspondent.


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© 1998, Abraham Rabinovitch