updated August, 2008
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Israel’s long-standing copyright statute, the 1911 British Copyright Act, which became law in the country in 1924, during the time of the British Mandate, has taken its final bow. The new Copyright Act, 2007 came into effect on May 25, 2008.
Although Israel's copyright law was based on the former British statute, and Israel in principal follows the “copyright tradition”, moral rights are recognized by law, specifically the right of attribution and the right of integrity, and elements of “Author’s Right’s” thinking can be discerned in some judicial decisions. A recent Supreme Court case affirmed that Copyright is a basic right, constitutionally protected under the provisions of the Basic Law on the Dignity and Freedom of the Individual. Nonetheless, the dominant theory behind copyright in Israel is that copyright exists to promote creativity for the benefit of society as a while. Therefore, Copyright must be balanced against other basic rights, such as the right of free speech and the right to receive information. This "relativity" of copyright finds expression in the new law, which balances the exclusive rights granted to authors against a lengthy list of permitted uses.
In general, copyright subsists in original literary, dramatic, musical and artistic works, terms that are broadly interpreted. Photographs are considered as artistic works. Cinematic and other audio-visual works are protected as dramatic works. Sound recordings and computer programs also enjoy copyright protection. The Supreme Court has also held that sufficiently developed literary or dramatic characters will enjoy protection, even outside the context of the original work in which they first appeared. Another controversial Supreme Court ruling also recognized copyright in a reconstructed facsimile of a 2,000 year old writing, comprising a part of the famous Dead Sea Scrolls. The scroll had been found in fragments, with about 40% missing. The reconstruction involved piecing together the fragments and filling in the missing text. The court found copyright to exist in the reconstruction process. The new copyright law also recognizes copyright in compilations and databases. However, these must comply with the originality requirements discusses below.
The threshold of originality for copyright protection is minimal. However, whereas in the past, copyright could be obtained under “the sweat of the brow” theory, the Supreme Court held in the landmark "Interlego" case that a work will not be protected unless its making involved some kind of original creativity. This elevated requirement for originality finds express recognition in the new law, which holds that a compilation or database will only be protected in as much as originality resides in the selection or arrangement of the materials contained therein.
In general, copyright subsists in the author or joint authors of a work. Copyright in works prepared by an employee during the course of employment and as a result thereof vests with the employer. Copyright in a commissioned work will ordinarily vest in the author. However, under the new law this rule is subject to any actual or implied contract vesting copyright in the commissioning party. It is yet to be seen under what circumstances courts will imply such an agreement. In other circumstances, the commissioner will receive a limited license to use the work.
Under the new law, the first owner of Copyright in a sound recording is the producer. Two recent District Court judgments have recognized the authorial status of Film and Television Directors, therefore placing them in the position of first owners of copyright in a film or television work, possibly jointly with other authors, such as the screenwriter. However, it is yet to be seen how the new rules pertaining to commissioned works will affect those judgments.
In accordance with the provisions of the Trips Agreement and the Paris Act of the Bern Convention, copyright protection is extended to a work if the author was, at the time of creation, a citizen or resident of a WTO member-state, or if the work was first published in a member-state.
Copyright generally lasts for the life of the author plus 70 years. However, sound recordings are protected for only 50 years. Photographs, which were previously subject to this lesser period of protection will, under the new law, enjoy a "life plus 70" term. There are no formal requirements for copyright protection. No registration is necessary. A transfer of copyright must be in writing. The new law states that exclusive licenses must also be in writing. Non-exclusive licenses may be oral or implied.
Copyright owners enjoy exclusive rights of reproduction, publication, public performance, broadcasting and adaptation. There is also a rental right, applying to commercial rental of audio-visual works and sound-recordings on tapes, discs and other devices containing a fixation of a copyrighted work. This right does not apply to non-commercial loaning of such devices by public libraries. The new law has introduced the "right of making available to the public" in line with the 1996 WIPO Copyright Treaty.
The infringement of the copyright holder’s exclusive rights gives rise to a cause of action for damages or an injunction. Infringement occurs where there is an unauthorized exercise by another of one of the exclusive rights of the copyright owner, as to the work in whole or “a substantial portion thereof”. The substantiality of a portion of a work is measured qualitatively and not quantitatively.
A copyright owner's exclusive rights are subject to exemptions. A very important provision of the new law implements the US doctrine of fair use. Under the former law, fair use was permissible only for personal study, research, criticism, review and news reporting. Under the new law, this closed list has been opened up and it is expected that Israeli courts, which are always inventive, will now apply the fair use doctrine in a variety of circumstances. The courts are directed to measure the fairness of a particular use in light of the specific circumstances of the case, applying the same tests applied by US courts: the amount and substantiality of the use; the type of work and the nature of the use; and the market effect. Case law has directed that the court will also consider whether credit was given to the author. The Supreme Court has ruled that parody may be considered criticism under the fair use doctrine, and it appears that satire may also qualify.
Home recording for private use is permitted, but not on “a device designed for use in a computer” - a significant proviso which limits the scope of this right in the digital environment.
The new law also carves out certain important exemptions for archives and libraries, designed to allow preservation of works, thus ensuring the continuing right of access of the public to the culural heritage of the nation. Another important new exemption applies to computer works, which may be copied or reverse-engineered for purposes such as maintenance, back-up and, most importantly, acheiving interoperability.
Musical works are subject to a statutory licensing scheme, although it is rarely used.
The usual Remedies for copyright infringement are an injunction and damages. The court may also award statutory damages, without need for proof of actual damage in an amount of up to $25,000 per infringement. Actions for accounts are not uncommon. In cases of copyright piracy, Israeli courts will sometimes issue “Anton Pillar” orders.
Moral rights are recognized, namely the right of integrity and the right of attribution. However, the new law has somewhat curtailed moral rights, subjecting the author's moral right to a reasonability standard. Under this new rule, an act which distorts or mutilates or modifies a work without the author's consent may nonetheless be permissible if such act is considered reasonable under the circumstances. The right of attribution is not absolute. Authors have a right to recieve attribution in a scope and manner befiting the circumstances.
The major collecting society in Israel is “Acum”, which represents musical and literary authors. Israel’s film and television directors and screenwriters have their own collecting society called “Tali”. Other Societies represent owners of rights in sound recordings and performers. Collecting societies are subject to scruting by the anti-trust authority and require a permit from the antitrust tribunal in order to operate.
Israel has yet to pass legislation dealing with DRM of ISP liability for online copyright infringement. The Electronic Commerce Bill, recently introduced by the government contains provisions concerning ISP liability for copyright (and other) infringement.
Performers Rights
Performers have the right to authorize any fixation, reproduction, broadcast or distribution of a fixation of their performance of a literary, dramatic, musical or artistic work. Performers Rights last for 50 years from the date of performance. Recently implemented TRIPS-compliance legislation applies the anti-bootlegging protection to performances in TRIPS member-states, but the provisions regarding broadcasting apply only to live transmissions of live performances.
Performers also enjoy the right to equitable remuneration in relation to any visual or auditory rendition of their performance. This remuneration is paid to the performers collecting society, which distributes it to the performers.
Performers also enjoy a moral right or integrity in their performance and the right to receive attribution.
