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Israeli's new Copyright Law

By William Patry

Israel has a new copyright law, scheduled to enter into force in the Spring. I have an unofficial English translation I am happy to share. The law begins with a definitions section. Two are of interest: the definition of "infringing copy" limits the Act to copies made in Israel, or to copies imported from abroad which would have violated the Israeli Act if made in Israel, much like the U.S. section 602(b). The second definition is that of "publication" which includes a concept, derived from the Berne Convention, of a sufficient number of copies to satisfy the requirements of the pubic for the type of work in question. Publication is also important for national eligibility and determining the country of origin (which in turn is important for duration). Works published simultaneously (meaning within 30 days) in multiple countries one of which is Israel will have Israel as the country of origin. See sections 2 and 44.

Principal economic rights are granted in Section 11; 11(5) includes "Making a work available to the public," defined in Section 15 as "the doing of an act in relation to a work that shall enable members of the public to access the work from a place and at [a] time chosen by them." If this provision was a part of U.S. law, it would have implications for the RIAA P2P cases. While Section 12(4) grants copyright owners the right to make a temporary copy of a work, in Section 26, the Act states: "The transient copying, including such copying which is incidental, of a work, is permitted, if such is an integral part of a technological process whose only purpose is to enable transmission of a work as between two parties, through a communication network, by an intermediary entity, or to enable any other lawful use of the work, provided the said copy does not have significant economic value in itself." Boy do I wish this was a part of the U.S. statute, although there is nothing stopping the courts from getting to the same result.

There is a broad work for hire provision for commissioned works (Section 35(a)), but with an exception for commissioned photos. The State is permitted to own copyright in works created by its employees (Section 36) except for rights in Official Publications (Section 6). The term of protection is life plus 70 (section 38). There are also moral rights (Sections 46, 50-52). Damages "without proof of injury" are capped at 100,000 NIS (about $25,000). An earlier draft had a cap of 40,000 shekels, but also had a mandatory minimum of 20,000 NIS. There was apparently quite a lot of lobbying on the issue. Raising the cap may have been a trade off for eliminating the mandatory minimum.

There are no ISP or DRM provisions, although a pending bill called Electronic Commerce does address some of these issues. Most interesting, perhaps, are Sections 19 and 50, which contain fair use limitations for economic and moral rights, respectively. The provisions are a virtual copy of Section 107 of the U.S. Act, with one particular improvement: In the first factor, there is no reference to the commercial or noncommercial nature of the use. The Ministry of Justice is also permitted to make regulations "prescribing the conditions under which a use shall be deemed fair."

Full post as published by The Patry Copyright Blog on January 04, 2008 (boomark / email).