By Moti Kahiri, Adv.
The revelation, published in May 2005, that 's second national anthem, Jerusalem of Gold, is in fact copied from a Basque folk song received considerable media coverage. Until recently, Ms. Naomi Shemer has been regarded as the composer of said anthem. Now in a shocking "after-life" confession, it appears that in the mid sixties a friend sang the Basque folk song to Shemer in a private setting. From this event Jerusalem of Gold eventually evolved. The vast public interest that arose as a result of this discovery is well understood in light of the position assigned to this song in the Israeli hall of fame. The question concerning Shemer's artistic integrity notwithstanding, the question of law is: who is the true proprietor of the copyright in Jerusalem of Gold?
At first, an analysis between the two works of music is required. Does such analysis demonstrate that Shemer's composition is substantially similar to the Basque folk song? Assuming that Shemer's post life confession is factually true, the differences between the two works are demonstrated in eight original musical blocks, which were composed by Shemer. These blocks are scattered throughout the composition. Under s Copyright Law, a musical work must be original in order to receive protection. According to Shemer's confession these eight musical blocks were originally composed by her and therefore, grant her copyright to her "version" of the folk song. Shemer tries to substantiate this contention by the notion of sub-conscious intervention, rather than a deliberate infringement. However, did Shemer infringe any copyright at all?
The question of sub-conscious intervention was dealt with by an American court in a case regarding George Harrison's song My Sweet Lord. There it was determined that infringement is possible even in a sub-conscious manner. Therefore, as far as the question of infringement goes, it is irrelevant whether Shemer copied the Basque folk song consciously or sub-consciously, deliberately or accidentally. When questioning the infringement of a copyright, which is an In Rem right, there is no need to prove intention to infringe, but rather to prove the infringement itself. Therefore, in order to answer the question, whether Shemer infringed any copyright whatsoever, it is necessary to trace back to the original composer of the Basque folk song. Where we do not have historical information regarding an original composer's life and death we are left with two options.
First, if said composer is alive, or died less than seventy years before 1967 (i.e. after the year 1897), when Shemer allegedly composed Jerusalem of Gold, then Shemer's work is an infringing work. Albeit minor differences between the two musical works, finding their expression in eight scattered musical blocks, Shemer's own need to confess of the copying is enough to prove that even in Shemer's own mind, the work of music is not an original one, but rather an adaptation of the original. The right to make an adaptation of a copyright work is reserved solely to the author of said work. Therefore, Shemer's version infringes the copyright of the original composer in his composition. The musical supplements added by Shemer in the form of eight unconnected musical blocks do not suffice to cause the "new" work of music to be a wholly original one
If said composer died prior to the year 1897, then Shemer as a matter of fact, did not infringe any copyright in the Basque folk song, where such rights have already lapsed. Assuming that a folk song requires more then a century to become a folk song (namely, the original composer died prior to 1897) what rights does Shemer's estate obtain in the composition of Jerusalem of Gold, if any?
Can eight musical blocks spread in the entire folk song be regarded as a piece to be protected to begin with? It seems to me that this question is to be answered from an approach that takes into consideration the Moral Right and its rationalizations, rather than the mere definition between an idea and its expression. In my opinion the economical issues are insignificant next to the parenthood and non-distortion rights originating from the Moral Right, in cases such as this, where a national anthem is at stake. As mentioned above, the moral right comprises the paternity right which is the right of the author to receive credit in connection with the protected work, and the right of integrity. i.e. the right that the work not be modified in a manner which would be prejudicial to the author's honor or reputation. What would Naomi Shemer (had she been living) possibly have said about a broadcasting network that did not caption Shemer's name as the composer of Jerusalem of Gold, whilst broadcasting it? What would Shemer say to an artist that morphed or mutated the composition of Jerusalem of Gold to his own needs? Where the Israeli moral right adheres to the tenor of the continental approach to copyright generally, the matter needs to be construed by the continental rationalizations to the mere existence and necessity of copyright. The Continental approach to copyright recognizes the natural right of the author in his work. Unlike the American approach, which considers utilitarian rationalizations (to promote the progress of useful arts); the Continental approach recognizes the special bond between the author and his work. With regard to Shemer's composition, can we really say that such bond has been stretched? In my opinion the answer is no. Albeit Shemer's true connection to the work, her interest in concealing the authentic origin of the composition for so many years, works against the considerations to acknowledge Shemer as the proprietor of "Shemer's version" of the Basque folk song. How could paternity rights be granted to someone who deprived them for so many years from the authentic composer of the specific work? How can someone who mutated the original work acquire immunity from further mutation of the specific work? Surely these questions raise obstacles to the recognition of Shemer as the author or composer or proprietor of Jerusalem of Gold. Granting Shemer's estate with such rights (and more) will, in fact, keep these questions echoing upon the abyss of the already deteriorating copyright law in . In addition, constructing subjective parameters in borderline cases such as this, where the originality of the version is not certain, will diminish the necessity of using the Unjust Enrichment Law, which is in my opinion alien to the IP laws, and is excessively used in Israel.
When observing the question of ownership of the new version to the Basque folk song, the true goals of copyright rationalities should be taken into consideration. One is to reward the author for his contribution to the intellectual world. The second is the encouragement of authors to make and publish their works for the benefit of all. In my opinion, it is imperative to enforce the copyright laws, even in a clear case of an un-deliberate infringement such as this. Otherwise, the entire intellectual world will collapse instead of progress.
Therefore, the best answer I can provide to the question regarding the proprietor of the rights in the composition of Jerusalem of Gold is that this version/composition is free for use (provided that the original author's rights indeed lapsed). This approach slightly amends Shemer's "guilt" in this matter as well. Shemer's place as the one who actually did write a version to the Basque folk song, in the form of Jerusalem of Gold will not be forgotten. Neither should the basic rules of fairness, taking their expression in this case as the copyright laws, be forgotten either