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

Cyberlaw, Copyright: Israel’s courts allow information to be free on the internet

April, 2005
 
Two recent rulings of Israeli District Courts have addressed the inherent tension that exists between copyright and the principal of the freedom of information in the digital world. In both cases the courts denied petitions for preliminary injunctions, in which the petitioners sought to use copyright law in order to prevent the copying and publication of factual information on the internet
 
The first case came before Justice Zafet in the Tel-Aviv District Court. The Petitioner, the publisher of the Maariv daily newspaper, claimed that the Respondent, “All You Need”, Ltd. systematically copies job listings from Maariv’s advertising section and republishes them on its internet job listing site. The site lists jobs currently advertised in the press, the information being gathered by the Respondent without having first sought permission from the advertisers or newspapers. The listings on the site are freely viewable, but do not include the contact information of the employer. This contact information is provided to interested job seekers at a charge. Maariv claimed that the copying constitutes infringement of its copyright in the job listings, as well as unjust enrichment.
 
The copyright claim was curtly dismissed. The court held that even if Maariv had exerted time, effort and capital in preparing its job listings, the listings themselves are mere facts and devoid of any creativity. As such, they are not entitled to copyright protection. Furthermore, the activities of Respondent serve to futher the interests of the public, and, indeed, of the advertisers in disseminating the information contained in the listings. Therefore, copyright law should not be used to restrain this dissemination. Even if the result is creation of competition between Maariv and the Respondent, such competition is in the public interest.
 
The court similarly dismissed the cause of action for unjust enrichment, holding, inter alia, that, even if Respondent benefits from the information gathered from Maariv, this enrichment is not illegal. Maariv is not the producer of the information, rather the advertisers are. Furthermore, Maariv’s investment is not in the production of the information, but in the promotion of its advertising platform. Respondent can not be said to have usurped this investment, since it did not use the goodwill of the Maariv platform.
 
The court concluded that the public should not be denied the benefits offered by internet technology in the absence of an infringement of a recognized right, such as copyright.
 
The second ruling was handed down by Justice Farkash of the Jerusalem District Court and involved similar copying of listings, this time real estate listings. However, in contrast to the Maariv case, the Petitioner in this action was not the publisher of the original listings, but rather a consolidator of listings published elsewhere. These consolidated listings, which are continuously updated are sold on a commercial basis to brokers and other interested parties.
 
The Respondent was the operator of a competing real estate listings consolidation website. Petitioner claimed, and the court accepted, that Respondent copies listings from Petitioner’s site. Nonetheless, the court held that this copying is not an infringement of any copyright of Petitioner, since the listings themselves are mere facts and not protected by copyright, no matter what effort Petitioner put in to produce the consolidation. Furthermore, even the order of the listings by way of city, neighborhood, street etc. is not sufficiently original to warrant copyright protection. Respondent could only be restrained from copying the protected format of Petitioner’s database, as it appears on the computer screen (meaning - or so it appears - the graphical format and presentation thereof), or Petitioner’s original additions and comments to the information, such as the exclamation “Suspicious” (we would submit that even this comment is not sufficiently original to be copyrightable).
 
The Petitioner in the Jerusalem case did not claim unjust enrichment, so the court did not examine this potential cause of action, but it is submitted that, as in the Tel Aviv case, such a cause of action should not have been available anyway.
 
Taken together, these two rulings signal a welcome lack of willingness by ’s courts to employ copyright law to restrain the free flow of information over the internet.
 
Civil Motion (T.A.) 2018/05 Maariv – Modiin Publications Ltd. v. All You Need Ltd.
 
Civil Motion (Jer.) 1011/05 Smilansky v. C.P.A. Real Estate, Ltd.
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