Ms. Tempska examines the Israel Supreme Court's ruling on August 31, 2002 regarding reconstruction and copyright infringement of the Dead Sea Scrolls. She reviews the copyrightability doctrine and its possible misapplications, illustrates the reconstruction process of the text involving the Dead Sea Scrolls, and describes the legal arguments and procedure of the Dead Sea Scrolls case. Tempska concludes that: 1) the arguments opposing copyright protection fail because they gloss over the facts of the reconstruction process and disregard the originality requirement for copyrightability under United States law; 2) the Israeli court's copyrightability analyses adequately accounted for the creative process, the author-work relationship, and the categorical classification of the work resulting from that relationship; and 3) the Dead Sea Scrolls decision and its district court predecessor exemplify a reformed copyrightability analysis that avoids the pitfalls of a positivist generic analysis, of a New Critical reification of the work, and of a post-Romantic elevation of authorial originality.
"Originality" After the Dead Sea Scrolls Decision: Implications for the American Law of Copyright,
6 Marq. Intellectual Property L. Rev. 119
Available at: http://scholarship.law.marquette.edu/iplr/vol6/iss1/5