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David L. Cohen

Abstract

In 1992, Professor Elisha Qimron of Ben Gurion University in Be'er Sheva, Israel, brought suit against the editors and publisher of A Facsimile Edition of the Dead Sea Scrolls, a complete set of photographs of the scrolls, for copyright infringement and the tort of mental anguish asking for approximately $250,000 in damages. The case centered on an appendix of the book which included a portion of a scroll text, Misgat Ma'Aseh ha-Torah—Some Rulings Pertaining to the Torah (MMT), reconstructed by Qimron. MMT consists of 121 lines of text, and Qimron's reconstruction—referred to in the suit as the Compiled Text (CT)—consisted of the MMT and 11 lines reconstructed by Qimron, for a total of 132 lines. Qimron contended that the CT was his original work and its publication in the Facsimile Edition was an infringement of his copyright. Qimron won at trial in Israel and the case is pending before the Israeli Supreme Court. So striking was the trial court's ruling that for the first time in the history of the Israeli Supreme Court an amicus curiae brief was filed. Two things make this case remarkable. First, it was the first case in the world to recognize the copyrightability (including both economic and moral rights) of a scholarly reconstruction of an ancient text. Second, an American publisher was held liable by an Israeli court, applying Israeli copyright law as if it were American copyright law, for a copyright infringement that occurred in America. This Article argues that the Israeli district court was too quick in finding that reconstructed manuscripts are copyrightable. It ignored the inherent paradoxes of claiming, on the one hand, that a reconstruction was an historically accurate version of an ancient manuscript, and on the other hand, claiming that the reconstruction was a work of “originality.” The court also brushed aside the grave danger that its ruling might pose for the freedom of scholarly inquiry and ignored the entire fifty-year context of recriminations and backbiting that surround the Dead Sea Scrolls. This Article also argues that the court was mistaken when it presumed that the United States provides moral rights protection. The court's conflicts of law analysis set a worrying precedent in this age of cross-border transactions by presuming that all legal systems protect intellectual property rights in the same fashion. Finally, after outlining and critiquing the district court's decision, this Article will offer some suggestions on how the Israeli Supreme Court should proceed to redress the balance between protecting an author's rights and freedom of inquiry.

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