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Birnhack on Copyright in Mandate Palestine

By Lawrence Solum

Michael Birnhack (Buchmann Faculty of Law, Tel Aviv University) has posted Hebrew Authors and English Copyright Law in Mandate Palestine (Theoretical Inquiries in Law, Vol. 12, No. 1, 2011) on SSRN. Here is the abstract:

This article (re)tells the as yet-untold story of copyright in Mandate Palestine. It is a story about the introduction of copyright law in one region, beginning a century ago: the Ottoman province that became Palestine under the British rule (1917-1922) and a Mandate (1922-1948), and then Israel (1948). The account provides an early case of legal globalization through colonialism (although Palestine was a Mandate, not a colony). The imposition of copyright law in Palestine enables us to observe the difficulties of applying an uninvited legal transplant and to trace its dynamics. The discussion queries the fate of copyright law in Mandate Palestine from two perspectives. First, the Colonial-Imperial point of view: I will ask "why that then", i.e., why did the British government impose copyright law in the newly administered territory only a month after the establishment of the civil administration in the summer of 1920 and then replaced it in 1924. The answers are to be found in the general imperial agenda, its Palestine agenda, as well as the nature of copyright and additional reasons. Second, from the local point of view, I will trace the first steps of copyright law within the Hebrew community and especially within the literary circle in the 1920s.

The discussion is located within several frameworks. The first is that of globalization and legal transplants. Copyright law today is at the forefront of the battle on globalization. Copyright features high on the agenda of those nations that push for stronger legal protection and for more enforcement measures in the name of free trade, private property as well as harmonization and unification. The new global copyright regime imposes foreign concepts on countries which are not always interested in these legal formulas. While copyright law was first introduced in the region by the Ottoman Empire in 1910, it was the 1911 (British) Imperial Copyright Act, applied to Palestine in 1924 (with a precursor in 1920), alongside a Copyright Ordinance that left their mark in the long run. Here, I focus on the non-Orthodox Jewish Zionist Hebrew community, known as the Yishuv. The article examines the literary field.

A second framework of the discussion is the interaction between law and social norms. This framework is a subset of the previous, globalization one, as copyright law was foreign and the social norms were local. It took a while for copyright law to be absorbed in the region and for the notion of a legal protection for intangible creative works to resonate within the local community. One main goal of the article is to point out this slow absorption and seek for explanations. This does not mean that there were no local copyright-related needs. There were such needs. The legal issues that bothered the literary field concerned the author-publisher relationship, attribution, the integrity of the work and international transactions. However, the answers to these problems were not found in the law but rather in private ordering, namely contracts and social norms.

Full post as published by Legal Theory Blog on February 17, 2010 (boomark / email).