Copyright Law

Israeli Court Enforces for the First Time a Creative Commons License

By Zohar Efroni

A court in Israel found that taking CC-licensed pictures from Flickr and publishing them in a book violated the copyright in each and every picture separately. (Source: www.law.co.il, including a link to the decision in Hebrew).

The facts are trivial: Plaintiffs, amateur photographers, uploaded their pictures to Flickr under a CC attribution, non-commercial, no-derivative license. Defendant, a commercial publisher, published the pictures both in a physical format (a book) and some of them also on its website.

To the court it was evident that such unauthorized use violated all three conditions of the Creative Commons license. It did note devote even one single word to the nature of the CC license and the consequences of its arguable breach. It was simply an infringement of copyright. Period.

The court further rejected the fair use defense briefly raised by defendant, and this is probably the most interesting aspect of the decision. A violation of the right of attribution (a classic moral right) pulled the rug from under any possible fair use protection. In other words, no fair use to violators of moral rights, which gives a very interesting twist to fair use law in Israel. The ruling implies that fair use is not all about economic interests. Fair use, (perhaps as in Fair Trade or Fair Game), also involves questions of ethical behavior.

The court considered the question of damages the main issue in this litigation, which connects to the question whether publishing the 15 photographs under dispute in one publication constituted one single ?bad act?, or rather, fifteen separate violations.

On this point the court accepted the position of plaintiffs and ordered statutory damages for each and every infringed photograph. The reasons: the purpose of the law in protecting authors, promoting original creation and deterring infringers in order to minimize to the extent possible instances of copyright violations.

UPDATE:
Haim Ravia, who represented plaintiffs in this case, draws my attention to the following points:

- Only one photo was published on defendant?s website in addition to being published in the book.
- It is not the first time a court rules that fair use (or, in its former incarnation in Israeli CR doctrine, ?fair dealing? defense of-a-sort) does not apply to violations of moral rights.

Which makes me think again about what I said above, suggesting that ?[t]he ruling implies that fair use is not all about economic interests.? The opposite is just as plausible: fair use has absolutely nothing to do with moral rights, for the good and for the bad. The bottom line remains the same: fair use cannot excuse violation of moral rights.

Full post as published by Zohar Efroni’s blog on January 14, 2011 (boomark / email).