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

Fair Use under Israel's New Copyright Act

Tony Greenman[1]

 

 

1.         Introduction

Israel's new Copyright Act, which took effect on 25th May, 2008, introduced a long list of limitations and exceptions to the exclusive rights of the copyright owner.[2] Chapter D of the Act permits the use of protected works for 11 specific purposes, under certain conditions.[3] This list of uses draws in large part from the permitted uses under English law and the EC Directive on Copyright in the Information Society.[4] The permitted uses of works are: use in judicial or administrative proceedings;[5] reproduction of a work deposited for public inspection;[6] incidental inclusion of  a work in photographs, cinematographic works and sound recordings;[7] broadcast or copying of a work situated in a public place;[8] copying and making derivative works of computer programs in order to achieve interoperability and for other specified purposes;[9] recording of a work in order to broadcast it;[10] temporary copying of a work for transmission through a network or for a lawful use;[11] copying by an artist of his own work for the purpose of making further works;[12] use of architectural plans and works for renovation and reconstruction of buildings;[13] public performance of a work in educational institutions;[14] and reproduction of works for archival and preservation purposes and for patrons of libraries.[15] It also creates a compulsory license for the use of musical words and related lyrics in the manufacture of sound recordings.[16] The conditions for exercise of each of these permits are set out in the relevant sections of the Act.

Alongside these specific and conditional permits, Section 19 of the Act adds a general, open-ended permit to make fair use of a work. This permit is based on the fair use provisions of United States law. In fact, Section 19 is an almost verbatim copy of Section 107 of the U.S. Copyright Act.[17] It permits fair use of a work "for purposes such as private study, research, criticism, review, journalistic reporting, quotation, or instruction and examination by an educational institution. Section 19 replaces the limited fair dealing provision, which existed under the 1911 Copyright Act. In line with English law, that Act allowed for "fair dealing" with a work for one of the following purposes only: private study, research, criticism, review, or newspaper summary.[18] Israel has thus become only the second country outside of the United States to adopt an open ended fair use provision in its copyright law.[19]

 

 

2.         The Transition from Fair Dealing to Fair Use

The transition from a limited fair dealing defense, available for specified uses of a work only to an open-ended fair use permit is without a doubt a major development in Israeli copyright law. In fact, it is probably the most important change introduced by the new Act. At first glance, this appears quite remarkable since the former fair dealing defense was largely redundant for the majority of the life of the former copyright act. In fact, there is no reported case in which the defense was accepted before the turn of the millennium. Yet, on closer inspection, it is in fact the culmination of a natural progression, which became apparent in case law and literature over the last two decades.

The first step in the progression to fair use came in the well-know Donald Duck case, which offered the Israeli Supreme Court its first opportunity to address the fair dealing provisions of the 1911 Act.[20] In that case, the late artist Dudu Geva had used the character of Donald Duck in his book on ducks. The Disney character appeared, under the name of Moby Duck, in a short comic strip, sporting an iconic Tembel hat (of the type worn by Kibbutzniks in many early photos from the fifties and sixties). In response to Disney's claim of infringement, Geva claimed that his use of the Disney character was a parody, which should be allowed as fair dealing. In addressing this claim, the court recognized that the defense of fair dealing exits so as to maintain a balance between the rights of the copyright owner and other public and social interests.[21] Aware of the difference between the defenses of fair dealing, under English law, and fair use, under U.S. law, the court nonetheless readily adopted the four fair use factors under Section 107 of the U.S. Act, finding them suitable for examining the fairness of a dealing under the relevant section of the Israeli Act.[22] The court was also willing to follow American case law in extending the meaning of the term "criticism" to include parody.[23] Indeed, the court was willing to go even further in this direction and to accept, that in the right circumstances, the term could also encompass satire.[24] While none of this aided the defendant artist, the court finding his work to be a mere commercial appropriation of the Donald Duck character, it merged not only the terminology of fair dealing, but also its substantive meaning, with those of fair use, setting the stage for further expansion of the defense.

The later Charlie Chaplin case, decided at the beginning of the millennium,took fair use thinking to a new level.[25] The case involved an advertising campaign of the Israeli national lottery featuring Chaplin's famous Little Tramp character in recreations of some of the most famous scenes from Chaplin's films, The Kid, Modern Times and After the Gold Rush. Although the court rejected out of hand the defendant's claim that its scene recreations were parodies of the original, it accepted that, in the right circumstances, such defense is available not only for parodies and satires, but for any work that uses an existing work as a "starting point" and as part of a "creative dialogue in which other creators also participate".[26] Furthermore, although fair dealing was available only for the five specific uses mentioned in the 1911 Act, these would be interpreted broadly, the main focus of the analysis being on the fairness of the use.[27] 

While the fair use discourse in the Donald Duck and Charlie Chaplin cases provided little comfort to the defendants at bar, those cases were followed by a number of lower court judgments, actually accepting the fair dealing (by then, sometimes called "fair use") defense for the first time. One of the first of these cases involved a nostalgic print album of the 1950's, which reproduced some graphic art used in advertising in that period. The court found this to be a fair dealing.[28] Another held that an author had dealt fairly with the characters of the classic children's book series, "The Hasamba Gang". The author had recreated them in a novel depicting them in their later adult life, in which they had succumbed to various vices and misfortunes, leading to a loss of their former idealism, so central in the original series.[29] A further case, decided in the last months of the life of the 1911 Act completely broke free of all restrictions on fair dealing. In that case, in the absence of legislation addressing ISP liability for third-party copyright infringement, the court employed the defense to absolve an internet host form liability relating to literary materials posted by a third party on its website.[30] Remarkably the court did not even try to place the "use" of the works in this case within one of the five prescribed uses under the Act.

As the case law was developing, so too educators and copyright scholars were advocating a broadening of the fair use defense.[31] A draft copyright bill, published in 2003 proposed such a broadening, adding "quotations" to the list of permitted uses. During the debates over this bill, some advocates floated the idea of opening up the list of fair uses altogether. By the time that the Copyright Bill was drafted, the open fair use permit, now included in Section 19 was ripe for adoption.

 

 

3.         Applying Fair Use

Section 19 merges into an Act which has drawn from many sources. Still predominately based on English law,[32] it is also influenced, although to a lesser extent by European law, incorporating not only permitted uses included in the Information Society Directive, but also moral rights.[33] How will the decidedly American doctrine of fair use be applied within this myriad of multiple influences? This question is addressed in the following sections.

 

 

(a)        In Search of the Purpose behind Fair Use

In interpreting and applying statutes, Israel's courts follow the doctrine of purposive interpretation, which became dominant in the Supreme Court under former president Aharon Barak.[34] Thus, the application of fair use in the courts will be influenced by the perceived legislative purpose of the provision. The court in the Donald Duck case considered fair use to be a doctrine designed to establish a balance between the rights of the copyright owner, on the one hand, and important public and social interests, such as the freedom of information and expression of users of works, advancing education and the preservation of culture.[35] This is consistent with the explanatory notes to the Copyright Bill, which stated that the goal of the Copyright Act is to create a balance between the need to establish a suitable incentive for creation, on the one hand and the need to allow the public to use works so as to further culture and knowledge, on the other hand.[36] However, some leading scholars maintain that such a framing of the purpose of fair use is erroneous, since it presupposes the existence of an exclusive right of the copyright owner, extending to the particular activity covered by fair use.[37] Relying, in part on American case law and literature, they stress that fair use should be seen as designed to foster and contribute to the very goals that copyright promotes.[38] This approach is consistent with the observation of the Supreme Court that "breakthroughs or advances" in the field of creative endeavor that serve society derive from the previous creative achievements of others who pave the way, building on them "stone by stone".[39] It appears that both approaches are correct and thus fair use should be seen as serving two mutually compatible purposes: the first, which may be called "the external purpose" is indeed that of balancing the rights of the copyright owner with the aforesaid competing interest; the second, which may be called "the internal purpose" is to allow a measure of freedom for creators to make use of existing works for creative purposes that further copyright's purpose, which has been stated by the courts as encouraging a diversity of works.[40] These dual purposes will no doubt influence the courts in their application of fair use under the new Act.


 

(b)        Categorizing Fair Use

While fair use is normally defined in American case law as a defense, an exemption or a privilege, some leading commentators in Israel are arguing that the permitted uses should be considered as "users' rights" and not mere defenses to an infringement action. [41] As such, they should be immune from waiver by contractual stipulation, at least to some extent, such as in the case of contracts of adhesion. One court has also invoked this terminology, although in obiter dictum.[42] In as much as the courts follow the "users' rights" terminology and ideology, fair use may be expected to be interpreted very liberally. Such a holding may also act to pass the burden of proof from the defendant to the plaintiff, who may have to prove that the defendant's use was not a fair use. This would be a much more far reaching change in the law than intended.[43] 

The drafting of the new Act supports the finding that that fair use is a permit (which is type of privilege), and not merely a defense.[44] As such, and in light of the public interest in fair use, terms in contracts of adhesion negating a user's right to make fair use of a work should be considered unfair and void. Yet, fair use should not be considered a full-fledged right, carrying with it an obligation on the part of the copyright owner to make a work available for the user. As such, it would be permissible for a right owner to employ technological measures to protect a work from copying. However, it would be equally permissible for one who has succeeded to circumvent a technological measure to copy the work, or a part of it, if such copying was a fair use.[45] It would also seem that, although fair use is a privilege, the burden or proving that a use is fair should still be borne by the defendant.[46]

 

 

 (c)       Examining Fair Use

The Act directs the courts to examine fair use in a manner similar to that mandated by Section 107 of the U.S. Act, analyzing. Inter alia, the four factors set out in that section. Nonetheless, I believe that fair use analysis in Israeli courts will differ from that of American courts in several respects.  

 

 

(1)        From Two Tests to a Single Test

Under the former fair dealing provision of the 1911 Act, courts took a two-step approach to examining fair use. In the first instance, it had to be shown that the use made of the work at bar was for one of the five purposes recognized by the Act. In the second stage, the court would examine whether the use was fair.[47] Since the permitted uses are no longer limited in number, courts should now move directly to an examination of the fairness of any use, with the purpose and character of that use being one of the more important factors to be examined.

 

 

(2)        Applying the Four Fair Use Factors in Line with the Berne Three Steps Test

Section 19(b) of the act instructs the courts to analyze claims of fair use by examining, inter alia, the following four factors, which are taken, almost verbatim, from Section 107 of the U.S. Act: (1) the purpose and character of the use; (2) the nature of the work which is the subject of the use; (3) the scope of the use, quantitatively and qualitatively, in relation to the work as a whole; (4) the effect of the use on the value of the work and its potential market. As previously stated, these factors had, in fact, been adopted by the Supreme Court prior to the enactment of the new Act.[48] However, it, and other courts, had not always made a point of examining them in total, sometimes reaching a finding of unfair use on the basis of one factor alone. For example, in the "Charlie Chaplin" case, the court dismissed the defendant's parody claim due to the highly commercial nature of the use, not finding it necessary to examine the other factors.[49]

Some commentators hold that any one factor may still support or negate a fair use claim.[50] I, however, believe that, while one factor may tip the balance in favor of, or against fair use, the court must reach its finding after weighing them all. However, while the U.S. Supreme Court held in Campbell[51] that no one factor holds precedence over the others, I believe that Israel's courts should see the first and last of the four factors as central to the finding. These factors go directly to the heart of the purpose of fair use. Together they pose the questions: has the work been used for a purpose and in a manner that serves competing public and social interests, such as freedom of speech and education, or that advances the very aim of copyright law, which is to encourage creativity and promote knowledge? And, does permitting such use create a fair and desirable balance between those interests and the rights of the copyright owner, in light of the effect of the use on the work and on its market? The second and third factors are, in fact, ancillary tests which assist in answering these questions. They are not of independent consequence.

Such an application of the fair use factors has another advantage. It is compatible with the so-called "three steps test" under the Berne Convention and the Trips Agreement. As may be recalled, these international conventions permit member states to create exemptions to the exclusive rights of the copyright owner ("the author" under Berne) in certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the owner ("author").[52] While there may be some doubt as to whether an open-ended fair use provision complies with the first of these steps, which requires the exemptions to be limited to certain specific cases, the legislature has by the very act of adopting this provision expressed its view that it does.[53] Stressing the centrality of the first and last of the four factors may give effect to the other two "steps". Thus the purpose and character of the use should be examined in light of the question of whether that use conflicts with the normal exploitation of the work. In examining the effect of the use on the work or its potential market, the court may examine whether the effect is such that it unreasonably prejudices the legitimate interests of the copyright owner (again, "author"). Such an examination will also further the policy of interpreting the copyright laws in a manner that is compatible with the provisions of the international conventions to which Israel is a party.[54]

Whether or not the courts will adopt this approach, on examining the four separate factors, they may certainly be expected to adopt a new approach to fair use. When examining the purpose of the use, the courts will no doubt have regard to the specific uses mentioned in Section 19(a). Here, the addition of "instruction and examination by an educational institution" allows substantial and welcome expansion of fair use. Thus, use of a newspaper article in a matriculation examination, in which the examinees are asked to comment on it, which in the past was held not to pay fair dealing, may now certainly qualify for fair use.[55]

The addition of a general category of "quotations" in the list of qualifying uses is potentially an even broader expansion of fair use, particularly since the law does not limit the purpose of the quotation. Thus quotations for artistic purposes may well qualify, if otherwise fair. Moreover, since the list of potential fair uses is no longer a closed list, other uses, not specifically mentioned in Section 19 may also qualify. Such uses will be examined on a case-by-case basis. Here it is interesting to note that the Copyright Bill proposed allowing fair use "inter alia for these purposes…". This text was amended by the Knesset Economics Committee to "for purposes such as…". The intent of the amendment was to limit how far the courts may expand fair use beyond the core uses. Yet, the section at present is still wide enough to allow for versatile application of the permit.

In examining the character of the use, its commercial nature has in the past been almost fatal to a fair use claim.[56] Section 19(b) noticeably omits any reference to this factor. Thus while it will no doubt still be relevant, the courts may now be expected to follow American law and pay more deference to transformative use.[57] Thus, in the right circumstances, the transformative character of a use may – and should – trump its commercial nature in many cases.

As has previously been stated, fair use has been employed in the past to provide judicial solutions in areas where the legislature has been slow to act, or has failed to adequately address an issue. Therefore, it is suggested that in addressing the nature of a work, the court may consider its status as an orphan work – an area of the law clearly looking for a solution. Thus, if the user has made diligent efforts to locate the copyright owner, and the use is of a type that is compatible with fair use, the orphan status of the work and the efforts made by the user should weigh in favor of fair use, where that owner is not available to license it.

Section 19 does not direct the courts to specifically address the question of whether a work has been published or not prior to the use. Nonetheless, in the Dead Sea Scrolls case, the fact that the defendants' early unauthorized publication of plaintiff's work denied him his right of first publication was one of the decisive factors leading to the failure of their fair use claim.[58]

It would appear that defining the work as more "creative" or "factual" is in truth not very useful, since at the end of the day, it is more important to look at what the defendant did with the work. Defendant's parody of the highly-creative Hasamba stories was nonetheless fair use, while another defendant's verbatim copying of a factual account of the capture of Adolf Eichmann was not.[59] It can be expected that this factor will remain of limited importance.

Similarly, although the amount of the work used may sometimes have bearing on the question of fairness, at the end of the day, this factor really only assists us in the examination of the first and fourth questions. That is to say, we may ask whether the amount of taking was justified in light of the purpose of the use, and whether it was such that the use has, or does not have a significant impact on the work or on its market. Israel's courts have not balked at finding fair use even in cases in which the whole work has been used, when other factors favor a fair use finding.[60]

 

 

(3)        Considering Other Factors

Although the courts are mandated to consider the statutory factors when considering whether a use of a work is fair, they have discretion to consider other factors as well. Review of the Act and the case law under the former Act indicate that the courts will take into account whether the defendant has respected the moral rights of the author, as well as his good faith, or lack thereof. Additionally, they may consider other factors.

 

 

(I)        Moral rights

As already mentioned, Israeli law recognizes moral rights, as mandated by Article 6bis of the Berne Convention, these being the right of attribution and the right of integrity.[61] Under the new Act, while fair use of a work is allowed, notwithstanding the economic rights of the copyright owner, neither the fair use permit, nor the specific permits absolve the user from respecting the moral rights of the author.[62] Indeed, in considering fair use (or, in the past, "fair dealing") courts usually examine whether the fair use claimant has granted sufficient attribution to the original author. Thus, in the well known Dead Sea Scrolls case, the defendants' fair use claim was brushed aside by the court because they had published the plaintiff's reconstructed text without granting him credit.[63] The courts can be expected to continue to pay deference to this factor.

In another case, defendant's lack of respect for the integrity of the defendant's work led to the failure of a fair use defense. In that case, defendant had used a section of plaintiff's documentary film in its own documentary work. The court held that the section has been taken out of context, thus distorting its meaning.[64]

Of course, moral rights are not absolute. The right of attribution is granted to the extent and in a manner as befitting under the circumstances.[65] The right of integrity, defined as the right that the work not be made subject to distortion, mutilation, modification of form or other  derogatory action, is infringed only if such act harms the author's honor or reputation.[66] Even if it does, such act will not be actionable if it was reasonable in the circumstances.[67] Thus, moral rights may have to step aside at times when the nature of the fair use mandates withholding attribution or infringing the integrity of the work. Parody is the classic example of such a case, for parody must, by nature, take aim at the work. Furthermore, a successful parody relies on the viewer, reader or listeners intuitive recognition of the work parodied.[68]

 

 

(II)       Good Faith and Fair Dealing

The duty of good faith and fair dealing is an over-arching principal, applying in all fields of Israeli law.[69] Thus, the courts may be expected to reject fair use claims when the defendant is perceived to have acted in bad faith. Nonetheless, the courts must remember that fair use is an extremely grey area with a high level of uncertainty. Therefore, it is legitimate for a potential user of a work to try to reduce his risk by enquiring about the possibility and cost of acquiring a license for a work prior to making an unlicensed use of it. The fact that such enquiry was made should not provoke a knee-jerk holding that the unlicensed use has acted in bad faith if the use is otherwise consistent with fair use.[70]

 

 

4.         Statutory Fair Use Standards?

The enemy of fair use is its uncertainty. Many potential users (and their attorneys) balk at relying on fair use, due to its amorphous character and the severe consequences that may stem from mistaken reliance on the permit. Thus many documentary filmmakers, historians and others spend much time and money on purchasing licenses that they may, in fact not need. In an effort to overcome this obstacle to fair use, section 19(c) of the Act provides that the Minister, with approval of the Knesset Economics Committee is authorized to issue regulations setting conditions under which a use of a work will be considered fair use. It remains to be seen whether the Minister will indeed respond to this extremely daunting and complex challenge.  

 

 

5.         Fair Use and the Specific Permits

A question arises whether the boundaries of the specific permitted uses under the Act are conclusive, or whether a use which does not fit within them may nonetheless be considered a fair use, if operation of the fair use factors favors such a finding. Commentators agree that the two are not mutually exclusive and that failure to comply with the conditions for a specific use does not preclude a finding of fair use.[71] Thus, for example, while a youth movement is not an educational institution, qualifying for the permit to publicly perform a work for educational purposes before its student body, a public performance of a work for educational purposes before the members of the movement may nonetheless be a fair use.[72] As such, the specific permits may be seen as statutory safe harbors in which a user may moor, even if his use is not objectively "fair". Fair use may be uncharted waters, which he may nonetheless be able to navigate, even though he has not fulfilled the conditions for the specific-use permit.

 

6.         Conclusion

The fair use model adopted by Israel in the new Copyright Act is almost entirely "made in America". Nonetheless, it has to be integrated into a law and system, which are influenced by other sources of law. Thus, it may be predicted that the Israeli version of fair use will take on unique characteristics, creating a somewhat different version of the original. Therefore, watching Israeli fair use case law develop over the coming years promises to be extremely interesting and will no doubt provide food for thought for both American courts and the legislators of other countries, who may consider adopting a similar provision.

 


[1]Tony Greenman Law Offices, Tel-Aviv, Member of the Bars of Israel and California, Adjunct Professor, Faculty of Law, Hebrew University of Jerusalem. email: tonyg@tglaw.co.il.; website: www.tglaw.co.il.

[2] The Copyright Act, 2007. An English translation of the Act, is available on the WIPO website at: http://www.wipo.int/clea/en/search.jsp?cntryorg_id=59&cat_id=&order=date

[3]Sections 20 – 30 and 32 of the Act. An unofficial translation of these sections (which it is believed is slightly more accurate than the above translation on the WIPO site) is attached to this article.

[4]Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society, Article 4, O.J. L167/10.

[5]Section 20 of the Act.      

[6]Section 21.

[7]Section 22.                           

[8]Section 23.

[9]Section 24.

[10]Section 25.

[11]Section 26.

[12]Section 27.

[13]Section 28.

[14]Section 29.

[15]Section 30.

[16]Section 32.

[17] Section 19 is drafted more sparingly than Section 107, omitting text appearing in Section 107 which clarifies the scope of the permitted uses and expanding on the application of the fair use factors. More noticeably, it adds "quotation" as one of the specified permitted uses.

[18]Copyright Act, 1911, Sec. 2(1)(I).            

[19] Neil Netanel points out that the copyright law of the Philippines already contains such a provision: Neil Netanel Israeli Fair Use from an American Perspective,  in Creating Rights 377 (ed. by Michael Birnhack & Guy Pesach, 2009).

[20].L.A. 2687/92 Geva v. Walt Disney Company, 48(1) P.D. 251 (1993).

[21]Id.at 268, 277.

[22]Id.at 271.

[23]Id. at 274.

[24] Id. at 284.

[25]C.A. 8393/96 Mifal Hapais v. The Roy Export Establishment, 54(1) P.D. 577 (2000).

[26]Id. at P. 597.

[27]Id. at P. 599.

[28]C.C. (Mag. T.A.) 24595/97 Bass v. Keter Publishing, Ltd., 5762(3) P.M. 337 (2002).

[29]C.C. (Dist. T.A.) 1437/02 Mosinzon v. Haephrati, 03(2) Tak-District 30775 (2003).

[30]  C.C. (Mag. T.A.) 64045/04  "Al-Hashulchan" Gastronomic Center. Ltd. v. Ort Israel, 07(14) Pdor 486 (2007). The court employed fair use in the absence of a statutory exemption for ISP's. Such an exemption was included in theElectronic Commerce Bill, 2008, which failed to garner the necessary support in the 17th Knesset (Parliament). After the recent elections, It remains to be seen whether it will be reintroduced in the 18th Knesset.

[31] See, for instance, Tony Greenman, Copyright 465 (2003).

[32]Tony Greenman, Copyright  18 (2nd ed. 2008).

[33]Moral rights have been somewhat tapered in the new Act. Of Particular importance, the right of integrity has been subjected to a reasonableness standard adopted from the Australian Copyright Act. See Tony Greenman Moral Rights: From Droit Moral to Moral Rights, in Creating Rights 439 (ed. by Michael Birnhack & Guy Pesach, 2009) (in Hebrew). For an English language discussion of moral rights in Israel, see Tony Greenman,Israel, in Copyright Throughout The World § 20:20 (ed. by Silke von Lewinski, 2008)

[34]Aharon Barak, Purposive Interpretation in Law 375 (2003).

[35]Geva, 48(1) P.D. 251.

[35]Mifal Hapais, 54(1) P.D. at 598.

[36]The Copyright Bill, 2005.

[37]Niva Elkin-Koren, Users' Rights, in Creating Rights 327, 342 (ed. by Michael Birnhack & Guy Pesach, 2009).

[38]Id.at 376.

[39] Mifal Hapais, 54(1) P.D. at 598.

[40]Greenman,Supra note 32 at  397. The Supreme Court case referred to is the landmark Interlego case: C.A. 513/89 Interlego A/S v. Exin-Line Bros. S.A., 48(4) P.D. 133 (1994).  

[41] See, for example, Elkin-Koren, supra note 37, at 375. The "users' rights" advocates find support in the Canadian Supreme Court judgment in CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R 339, which employed the same terminology.

[42]C.M. (Dist. T.A.)1146/08 The Football Association Premier League, Ltd. v. Ploni 08(3) Tak-District 2514 (2008).

[43] See infra note 46.

[44]The fair use provision is contained in Chapter D of the Act, which deals with "Permitted Uses".

[45]Israel has not enacted legislation protecting technological measures.

[46]Under Section 47 of the Act, "a person who performs in relation to a work, any of the acts specified in section 11, or who authorizes another person to perform any such act, without the consent of the copyright owner, infringes the copyright, unless such act is permitted pursuant to the provisions of Chapter D". This Section appears to place the burden of proving that the act is permitted on the defendant

[47] Geva 48(1) P.D. 251 (1993).

[48]Id.

[49]Mifal Hapais, 54(1) P.D. at 598.

[50] Elkin-Koren, Supre note 37 at 369.

[51]Campbell v. Acuff-Rose Music Inc., 114 S.Ct. 1164 (1994)

[52]The Berne Convention for the Protection of Literary and Artistic Works, Article 9(2); Agreement on Trade-related Aspects of Intellectual Property Rights, Article 13.

[53]The provision of specific examples of fair uses in the Section, together with the provision that other uses "such as" those may be recognized may provide the necessary specificity.

[54]A.T. 3574/00 The Israel Federation of Phonograms and Tapes, Ltd. v. The General Director of the Antitrust Authority, 34(2) Dinim-District 175 (2004).

[55]C.C. (Mag. Ha.) 12595/98 Bergman v. The State of Israel (unpublished, 2.1.2001).

[56]Mifal Hapais, 54(1) P.D. 577 (2000).

[57]Greenman,Supra note 32 at 445; Elkin-Koren, Supra note 37 at 370. Both authors stress, however, that transformative use is not a prerequisite for fair use. Certain "as-is" uses may also qualify.

[58]C.A. 2790/93 Eisenman v. Qimron, 54(3) P.D. 817 (2000).

[59]The Hasamba case is C.C. (Dist. T.A.) 1437/02 Mosinzon v. Haephrati, 03(2) Tak-District 30775 (2003). The case involving the Eichman capture account is C.C. (Mag. T.A.) 1143/83 Belbo Film Production v. Chevrat Monitin, Ltd., 5747(2) P.M. 391 (1986).

[60]C.C. (Mag. Jer.) 8107/01 Zoom Tikshoret (1992) Ltd. v. Haaretz Newspaper Publishing, Ltd., 5762(3) P.M. 577 (2003).

[61]Copyright Act, 2007, Section 46.

[62]Section 18 of the law permits uses "notwithstanding the provisions of Section 11". The latter section deals with the copyright owners' economic rights.

[63]C.A. 2790/93 Eisenman v. Qimron, 54(3) P.D. 817 (2000). See also C.A (Dist. T.A.) 3038/02 Zoom Tikshoret (1992) Ltd. v. Israel Educational Television, 07(2) Tak-District 3822 (2007). In that case, the defendant produced and broadcast a documentary magazine containing a feature on "photographs that have become enshrined in the public memory". One of those photographs, the famous shot of the hand of atomic whistleblower Mordechai Va'anuna was used without permission. The magistrates court had held the use of the photograph a fair use for purposes of criticism, interpreting that term broadly to apply to any discussion of analysis or a work. On appeal, the District Court overturned that ruling, holding the use unfair, since the defendant had failed to credit the copyright owner. Although, moral rights mandate granting credit to the author, this ruling was (it would seem unwittingly) in line with Article 10(3) of the Berne Convention, which mandates indicating the copyright owner when quoting a work.

[64]C.C. (Mag. Jer.) 22228/95 Peled v. Israel Broadcasting Authority, 15 Dinim-Magistrates 675 (1999). The defendant did not claim his work to be a parody.

[65]Section 46(1) of the Act.

[66] Section 46(2).

[67]Section 50(b).

[68]In the recent case of Rubinger v. Walla!, the court found an infringement of both the right of attribution and the right of integrity when an artist recreated plaintiff's well know photograph of Israeli paratroopers standing at the Western Wall shortly after its capture by the Israeli army during the 1967 six-day war. The artist had added stones to the picture, these appearing to have been hurled from the Temple Mount above (as has happened during periods of political unrest in Jerusalem) and had placed his signature on the picture, but had not credited Rubinger. Because the court reached the conclusion that the picture was not a parody, it did not discuss the relationship between fair use and parody: C.C. (Maj. T.A) 43688 Rubinger v. Walla! Communications, Ltd, 09(3) Pador 605 (2009). In my view, the court's conclusion that the picture was not a parody is clearly erroneous.

[69]The duty derives from Section2 39 and 61(b) of the Contracts (General Part) Act, 1973.

[70]Greenman,Supra note 32 at 466, citing Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2nd Cir. 2006) and Monster Communications v. Turner Broadcasting System Inc., 935 F. Supp. 490 (S.D.N.Y. 1996).

[71]Greenman,Supra note 32 at 366; Michal Shur-Ofry Software Protection, in Creating Rights 520 (ed. by Michael Birnhack & Guy Pesach, 2009).

[72] The permit for public performance of a work in an educational institution is under Section 29 of the Act. The scope of this permit, and its lack of a provision providing for payment of royalties to the creators of the works severely harms the incentive for creating dramatic, musical and audiovisual works designed for use in educational institutions. See Greenman,Supra note 32 at 369.

Appendix:

The Copyright Act, 2007

Chapter Four: Permitted Uses

18. Permitted Uses

Notwithstanding the provisions of section 11, the performance of the actions specified in sections 19 to 30 is permitted subject to the conditions specified respectively in the aforesaid sections and for the purpose of carrying out the objectives specified therein, without the consent of the copyright owner or payment or consideration, but, with respect to the activities specified in section 32 – upon payment and in accordance with the provisions of that section.

19. Fair Use

(a) Fair use of a work is permitted for purposes such as: private study, research, criticism, review, journalistic reporting, quotation, or instruction and examination by an educational institution.

(b) In determining whether a use made of a work is fair within the meaning of this section the factors to be considered shall include, inter alia, all of the following:

(1) The purpose and character of the use;

(2) The nature of the work used;

(3) The amount of the use, quantitatively and qualitatively, in relation to the work as a whole;

(4) The impact of the use on the value of the work and its potential market.

(c) The Minister may set regulations prescribing conditions under which a use shall be deemed a fair use.

20. Use of Works in Judicial or Administrative Proceedings

Use of a work in juridical or administrative procedures under law, including reporting on such proceedings, is permitted to the extent that is justified taking into consideration the purpose of the aforesaid use.

21. Reproduction of a Work Deposited for Public Inspection

(a) The copying of a work that has been deposited for public inspection under law is permitted if consistent with the purpose for which the work was deposited for inspection, and to an extent that is justifiable taking into consideration the purpose of the said use.

(b) The provisions in sub-section (a) shall not apply with respect to works deposited in accordance with The Books Act (Obligation to Deposit and Cite Details), 2000.

22. Incidental Use of a Work

An incidental use of a work by way of including it in a photographic work, in a cinematographic work or in a sound recording, as well as the use of a such work in which the work was thus incidentally includes is permitted; For this purpose, the intentional inclusion of a musical work, including its accompanying lyrics, or of a sound recording embodying such musical work, in another work, shall not be deemed to be an incidental use.

23. Broadcast or Copying of a Work Situated in a Public Place

Broadcasting, or copying by way of photography, drawing, sketch or similar visual description, of an architectural work, a work of sculpture or work of applied art, are permitted where the aforesaid work is permanently situated in a public place.

24. Copying of a Computer Program or Making of a Derivative Work

(a) Copying of a computer program for purposes of back up is permitted by a person who possesses an authorized copy of the computer program; A person holding such a copy shall destroy it once it is no longer needed to serve the purpose for which it was made.

(b) Copying of a computer program for purposes of maintenance of an authorized copy of the program or of a computer system, or for purposes of providing service to a person in possession of an authorized copy of the computer program, is permitted, provided that it is necessary for use of the program.

 (c) Copying of a computer program, or making a derivative work there from is permitted for a person who possesses an authorized copy of the computer program, for the following purposes and to the extent necessary to achieve said purposes:

(1) Use of the computer program for the purposes for which it was intended, including correction of errors in the computer program or adapting it for use with a computer system or with another computer program;

(2) Examination of the data security in the program, correction of security breaches and provision of protection from such breaches;

(3) Obtaining information necessary to adapt a computer system or another computer program, which is independently developed, such that it may operate with the said computer program.

(d) The provisions of sub-section (c) shall not apply with respect to the copying of a computer program or the making of a derivative work there from, as stated in said sub-section, if the information which has been obtained through the aforementioned means was used in a manner set forth below, or where such information was readily discernable without use of the aforesaid means:

(1) The said information is transmitted to another person for a purpose different than the purposes set forth in sub-section (c);

(2) The said information is used to make a different computer program which infringes copyright in the said computer program.

(e) In this section, "authorized copy" of a computer program means a copy of the computer program which was made by the copyright holder therein or with his consent.

25. Recording for Purposes of Broadcast

(a) Recording of a work by a person permitted to broadcast it is permitted if the copy is made solely for use in his broadcasts.

(b) A person who has recorded a work in accordance with the provisions of sub-section (a) shall destroy the recording within a period of six months from the date of the first  broadcast of the work, or until a later period if so prescribed by law, or until a later period if so agreed upon with the owner of the copyright of the recorded work.

(c) Notwithstanding the provisions of sub-section (b), preservation of a recording is permitted

(1) for archival purposes;

(2) with regard to a person permitted to broadcast the work – for as long as such person is permitted to make such broadcasts.

26. Temporary Copying

The temporary copying, including incidental copying, of a work, is permitted if such copying is an integral part of a technological process whose sole purpose is to enable transmission of a work as between two parties, through a communications network, by an intermediary entity, or to enable any other lawful use of the work, provided the such copy does not have significant independent economic value.

27. Additional Artistic Work made by the Author

The making of a new artistic work which involves partial copying of an earlier work, or which is a derivative work of an earlier work, as well as any use of the said new work, are permitted by the author of the said earlier artistic work even where said author is not the owner of the copyright in the earlier artistic work, provided the new work does not repeat the main part of the earlier work or constitute an imitation thereof.

28. Renovation and Reconstruction of Buildings

Use of the following works is permitted for the purpose of renovation or reconstruction of a building or other structure:

(1) The architectural work which is the aforesaid building or structure, or a model thereof.

(2) The drawings and the plans that were used with the consent of the owner of the copyright therein, at the time the said building or structure was originally constructed.

29. Public Performance in an Educational Institution

A public performance of a work is permitted in the course of the educational activity of educational institutions, of the type prescribed by the Minister, where such performance is made by the employees of the educational institution, or by the students studying therein, provided that said public performance is made before  an audience which includes the employees or students of the educational institution, as aforesaid the relatives of the students or other people directly connected with the activity of said institution, and  them alone; However the screening of a cinematographic work is permitted according to this section if done solely for purposes of teaching and examination by an educational institution.

30. Permitted uses in Libraries and Archives

(a) Copying of a work, a copy of which is already in the permanent collection of a library or archive of the type of libraries or archives as prescribed by the Minister, is permitted for the following purposes, provided that an additional copy of said work may not be purchased within a reasonable period of time and on reasonable terms:

(1) Preservation, in any format, of a work already in the possession of the aforesaid library or archive, provided that the said preservation copy shall not be used as an additional copy to the copies in the library;

(2) Replacement of a copy of the work held by the aforesaid library or the archive, which has been lost, destroyed or become unsuitable for use;

(3) Replacement of a copy of the work, that had been in the permanent collection of another library or archive and was lost, destroyed or has become unsuitable for use.

(b) Copying of a work, a copy of which is held in a library or archive as prescribed in sub-section (a), for a person requesting such copy, is permitted, provided that the request for such reproduction is made by a person, who, if he had made the copy himself, would be permitted by law to do so; The Minister may prescribe an application form for use by libraries or archives for purposes of this sub-section.

(c) Copying of a work by entities of the type prescribed by the Minister, for purposes of preservation, is permitted; The Minister may prescribe types of works which will be subject to this subsection, conditions for the performance of the copying as well as conditions for the grant of public access to copies that were made in accordance with this sub-section.

31. Regulations regarding Educational Institutions, Libraries and Archives

The Minister may prescribe different conditions for the applicability of sections 29 and 30, generally or with respect to particular types of educational institutions, libraries or archives, taking into consideration the character of their respective activities.

32. Manufacture of Sound Recordings against Royalties

(a) Despite the provisions of section 11, reproduction of a musical work in a sound recording is permitted, provided the following conditions are met, even without the consent of the copyright owner:

(1) The musical work has been previously recorded, with the consent of the copyright owner, in a sound recording that was published for commercial purposes (in this section – the Former Sound Recording);

(2) The musical work was reproduced in its entirety, except for modifications arising from  adaptation of the reproduction and modifications necessary for the making of the reproduction, or where such modifications were made in the Former Sound Recording;

(3) The person who makes the copy has informed the copyright owner of the making  prior to the making of the copy;

(4) The person making the copy has paid equitable royalties as agreed with the owner of the copyright; and in absence of agreement – as set by the Court;

(5) The copies are neither used, nor intended for use in commercial advertising;

(b) The Minister may prescribe regulations as regards the following matters:

(1) Methods for informing the copyright owner as stated in sub-section (a)(3);

(2) Considerations and parameters for the determining of equitable royalties by the Court as stated in subsection (a)(4).

(c) In this section, "musical work" – including the accompanying words, if any, in the Former Sound Recording.

צור קשר

אני מעוניין בקבלת ניוזלטר חינם
ועדכונים על דיני קניין רוחני,
זכויות יוצרים, סימני מסחר,
דיני מדיה ותקשורת ודיני אינטרנט
לכתובת הדואר האלקטרוני.