I spent a chunk of time at work last week reading about copyright and fair use laws. Unsurprisingly, the laws surrounding copyright and fair use are quite complex and situational. Particularly interesting to me was the conversation about public domain, “creative materials that are not protected by intellectual property laws such as copy right, trademark, or patent laws. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can ever own it” [1]. Simply put, people can use public domain material in their content because the material itself belongs to the public.
Laws, for example, are considered public domain. In a 2002 case [2], a court ruled that an entity cannot sue for copyright infringement regarding laws, such as building codes. The court justified this ruling by noting that “when a model code is enacted into law, it becomes a fact—the law of a particular local government” [3]. The fact in this context, though, is somewhat ambiguous. Indeed, the Supreme Court doesn’t explicitly call laws fact; however, laws parallel census data, scientific facts, historical data, and biographical data inasmuch as “they may not be copyrighted and are part of the public domain available to ever person” [4].
This framework—namely, the modern US legal conceptions of law in relation to data and facts—raise interesting issues regarding biblical and ancient Near Eastern law: To what extent have modern US legal conceptions of law and copyright impacts how we approach and think about the function and creation of law (broadly construed) in the ancient Near East? More specifically, how does contemporary copyright law impact studies regarding things like innerbiblical exegesis, Pentateuch studies, law in the Hebrew Bible, redaction criticism (et. al), and in light of Milstein’s recent work, ancient law more broadly? (Literary studies undoubtedly play a huge role, as well as other methodologies. Still, identifying how this particular issues impacts conclusions and studies, if at all, might be a worthwhile endeavor.)
While I can’t answer these questions here, these questions are part of the reason why I appreciated Sara Milstein’s book Making A Case. Rather than framing biblical texts through a distinctly modern legal framework, her work takes into greater consideration how the Hebrew Bible fits with broader historical trends. In doing so, her approach to biblical law moves beyond other approaches that contemporary law impacts to a great extent.
The problem of copyright and public domain in US law likewise raises another question: To what extent did facts exist in ancient Near Eastern law? And how did different ancient communities draw the line between fact and opinion, if at all? Again, I have no answer to this question, but the issue is worth thinking about. (At least I think the issue is worth considering.)
[1] https://fairuse.stanford.edu/overview/public-domain/welcome/#are_local_laws_in_the_public_domain
[2] Veeck v. Southern Building Code Congress International, Inc., 293 F. 3d 791 (5th Cir. 2002).
[3] https://fairuse.stanford.edu/overview/public-domain/welcome/#are_local_laws_in_the_public_domain
[4] https://law.justia.com/cases/federal/appellate-courts/F3/293/791/521953/
The Biblical Review 