זכויות יוצרים, קניין רוחני, דיני מדיה ואינטרנט - עו"ד טוני גרינמן

Copyright: Night at the Museum: Copyright and Freedom of Expression

Tony Greenman,attorney law
January, 2008
 
A new ruling of the Tel Aviv District Court deals with the intersection of copyright law and the freedom of artistic expression.
 
The suit deals with the Tel Aviv Museum’s petition against the museum’s supervisor of security who was involved in the creation of a film, shot inside the museum, without the museum’s knowledge or permission. The Tel Aviv Museum asked that the movie’s screening be prevented.
 
The defendant, the museum employee cooperated with another party, the second defendant, to produce the film whose subject is a critique of "the museum space". The museum employee permitted the second  defendant to enter the museum after its closing hour, in breach of his authority and facilitating a trespass. Together they made use of the museum’s security cameras, whilst connecting their own private camera to the museum’s security system in order to record the film, which shows them interacting with the museum’s exhibits.
 
The museum claimed that screening of the film would constitute a double  infringement:. Firstly, the film puts into question the museum’s security arrangements and the trust put into protecting the works of art it holds. Secondly, the film caused the museum to appear to act in a manner which may be deemed unfitting and may harm the museum’s reputation as a secure place.
 
The museum further argued that in light of section 5 of the Copyright Law it is the owner of the copyright in the film and therefore it has the right to decide how the film is used. Section 5 of the copyright law provides that a work’s author will be the first owner of its copyright, unless the author was an employee and the work was authored during the course of his employment , in which case the copyright belongs to the employer.
 
In her ruling, Judge Ronen of the District Court adopted the test proposed in e book “Copyright” by Tony Greenman,  for determining when a work is to be deemed as having been created during one’s employment by another. Under this proposal the test in not only a question of time but also of purpose. The work will only be considered as one in which the employer owns the copyright if it was made for the purpose of the employment. In a situation where the work was made during employment but not for its purpose, even if it is a severe disciplinary violation , there is no justification for transferring copyright from the employee to the employer. However there is no obstacle to taking disciplinary action against the employee or seeking criminal sanctions.
 
The judge added that the film cannot be seen as a work made by the museum employee as part of his job for several reasons: the film was not made at the museum’s request but rather without its oversight or control, in defiance of the employee’s obligations to the museum. Furthermore, the work was made for the personal use of the defendants. The fact that the museum had a certain degree of contribution to the film, as it was filmed on its premises and with its security cameras is not enough to rule that the work was made as part of the security supervisor’s work.
 
Another question the ruling deals with is whether the film’s screening should be prevented as it was created by the employee whilst committing a tort against the museum. The film’s screening is a part of  the defendants right to freedom of artistic expression. The invalidation of this basic right should be made only in rare instances where there is sufficient justification. The invalidation of this right also essentially invalidates the right of the potential audience to examine the work and express their opinion of it, and so also causes damage to an important aspect of democracy and to cultural and artistic development.
 
The ruling recognizes that the rights of users, other artists and society at large are among the interests which copyright aims to further.
 
In the case dealt with here the screening of the film does not infringe the rights of any third party or cause it any damage. Therefore the film’s screening should not be prevented, merely because it was made whilst committing a civil wrong, as its screening will not cause further harm. The remedy which the museum seeks in relation to the wrongs committed against it by the defendants should be on the criminal and monetary levels, without harming the broader public by forbidding the film’s screening. There is no need to add further sanctions, particularly preventing screening of the film, in addition to the sanctions mentioned above, because such would unfairly punish both the work’s creators and the potential viewers.
 
In light of  the above, the judge ruled that the suit should be dismissed. There is no dispute that the defendants did not act correctly in creating the film but that alone cannot justify the prevention of its screening and create an unreasonable restriction on its creators’ freedom of artistic expression. The basic right to freedom of expression must be given further weight when balanced against other interests. It must be restricted only in exceptional instances which justify the restriction and must be done so in the required proportionality.
 
It should be noted that this test adopted by the court for ruling whether copyright in a work belongs to the employer is now adopted in the new copyright law which will take effect in May of 2008.
 
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