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Tuesday, July 29, 2014

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Judges discuss comparative law

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Federal Court justice Roger Hughes, left, Supreme Court justice Marshall Rothstein and Rabbi Berel Bell of the Montreal Beth Din take part in a symposium on intellectual property.

MONTREAL — Even a Supreme Court justice, it seems, can benefit from the wisdom of the Talmud.

Marshall Rothstein, the Winnipeg native who has sat on Canada’s highest judicial bench since 2006, came to a Chabad centre in a commercial building on Jean Talon Street last week to teach and to learn.

Rothstein, as well as Federal Court Justice Roger Hughes and Montreal lawyer Frederick Pinto, were the faculty, along with Rabbi Berel Bell, a Lubavitcher and a judge of the Va’ad Hair’s Beth Din.

The topic was “Intellectual Property (IP) at a Crossroads: A Comparative View.”

Copyright, trademark and patent laws have historically protected intangible assets, but jurists must increasingly interpret them in more creative ways to keep up with the fast pace of technology and science and the undreamed of scenarios this creates.

Legislation is slow. Canada’s patent law, for example, was enacted in 1869.

But that’s like the day before yesterday for Rabbi Bell who emphasized that Jewish legal authorities have grappled with IP issues since the 16th century, and the Talmud, the wellspring of all rabbinic jurisprudence, dates back to 500 CE.

Attracting two of the country’s leading jurists was a coup for Chabad of the Town, which for the past two years has organized law symposiums recognized by the Quebec Bar. Participants earn credit hours toward the continuing education lawyers are required to take.

Usually, local lawyers give expositions on a particular field of law, with a Lubavitch rabbi offering Judaism’s perspective.

For Chabad director Rabbi Moishe Krasnanski, these educational programs underline the fact that, hundreds of years ago, Judaism was trying to find solutions to ethical dilemmas that resonate today.

About 100 lawyers, Jewish and non-Jewish, attended the half-day symposium, enjoying a generous lox-and-bagels breakfast before settling down to business.

Rothstein said only one or two IP cases a year are heard by the Supreme Court.

A memorable patent case he was involved in 10 years ago as a Federal Court of Appeal judge, was that of the “Harvard mouse,” a rodent genetically altered to be more prone to cancer and therefore useful in laboratory research.

The court’s upholding of Harvard College’s right to patent the mouse was overturned by the Supreme Court in 2002 by a five to four vote. The egg from which the mouse is conceived was patentable, but not the mouse itself because the majority ruled that it was a sentient, higher form of life.

The dissenters, including Rothstein at the lower court, did not subscribe to their fear that patenting a mouse would lead to patenting of human genetic matter and ultimately people.

Even if it did, Rothstein thinks that’s not necessarily a bad thing, at least not the pre-human material. A patent on, say, the discovery of a superior brain gene would not lead to ownership of any human zygote into which it was introduced – simply because ownership of people has not been legal in Canada since the abolition of slavery, he said.

This December, the Supreme Court heard a copyright case pitting provincial educational authorities against an association representing authors and publishers. The educators take issue with a more than doubling of the fee per student for the right to photocopy textbooks.

Rothstein and his colleagues must decide whether this purpose is within the exemption of copyrighted material for private study or research, and, if it is, whether that’s a fair deal, in the sense of the laws, for the producers of that material.

Another pending case is the objection of music producers to short previews of recordings being made available without charge online. Is listening to these streamed, undownloadable 30-second clips consumer “research” as foreseen by the copyright law or a commercial gain for the online suppliers, not shared with those who make that music?

Rabbi Bell, who graduated from Yale University with a BA in psychology, told of how rabbinic sages issued their first protection of IP in 1519 when the first Hebrew grammar book was printed. It bore a warning that a curse would befall anyone who reprinted it without permission. By 1550, a rabbinical tribunal in Italy had its first case challenging that ban: a copying of Maimonides’ Mishneh Torah.

The concept of “property” – what it was and how it could be acquired – was something Maimonides gave a lot of thought in his 12th-century code of Jewish law, Rabbi Bell said.

Only that which has substance can be transferred, either through sale or a gift, Maimonides wrote. Similarly, ownership of something that has not yet come into existence cannot change hands.

Today, the majority opinion among rabbinic scholars is that IP is not property in the sense of something tangible, he said, which is in accordance with the Talmud.

However, there is a longstanding recognition of the value of creative thought. The 19th-century Rabbi Yosef S. Nathanson may have been ahead of his time when he wrote: “It is obvious that when an author prints a new book and merits that his words are accepted by the world, he has rights to it forever. Regardless, if you print something new or develop a new technique, someone else is not permitted to use it without permission.”

Ideas, Rabbi Bell said, are seen as “an extension of the person’s mind” and therefore are like the fruit of a tree. Unlike civil law, Jewish tradition places no statute of limitations on the protection of those ideas, he added.

Rothstein told The CJN at the morning’s conclusion that he found the symposium a worthwhile educational experience.

“Hearing Rabbi Bell talk about the background was interesting – absolutely.”

As a Supreme Court justice, however, Rothstein said he must avoid assessing any religion or favouring one over the other.

Chabad is finalizing plans for an accredited legal mission to Israel highlighting the country’s interpretation of international law, particularly as it relates to security.

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