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Israel

Fri, 13/03/2009 - 07:15 — Ehudp

Legal background

Scope and duration of copyright

Is the period of protection of each type of copyright work limited to the minimum duration mandated by the Berne Convention? NO
Works are generally protected for 70 years after the author's death. Works published by the government and recordings, are protected for 50 years.		 CA s.38-44
Must a work be fixed in some material form before copyright attaches? YES
CA s.4(A)(1)
Is the exercise of copyright subject to competition law, for example by compulsory licensing or regulation of royalties in the case of copyright holders who misuse their monopoly power? LIMITED
Interpretation would apply competition law to impose restriction on copyright owners.In the recent "PL" decision the court acknowledge balance between cultural rights and the monopoly of sport's broadcasting and allowed the public to use copyrighted material in certain cases.
Is the exercise of copyright subject to compliance with a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech? LIMITED
Lower courts indicate such interpretation.
Does the compilation of a database of non-original material fall outside the scope of copyright? LIMITED
Databases fall in the scope of copyright. But databases are protected only if there is originality in the selection and organization of the data.		 CA s.1, 4
Do exceptions and limitations in national copyright law prevail over contracts purporting to limit or override them? NO
In most cases contract prevails over limitation and expiations in national copyright law.

Freedoms to access and use

By Home UsersIs there a general exception for the fair use of copyright material for any purpose that satisfies a set of balancing criteria? NO
Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)? NO
CA s.12
Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes? LIMITED
Licensed software reproduction is allowed explicitly. Reproduction of software for the purposes of system maintaining, backup or security risk assessment is allowed.		 CA 18, 19, 24
Can works be communicated to a limited public (for example, family and friends) without infringing copyright? LIMITED
Licensee is prohibited to communicate the licensed work to public ("private performance" is open to court interpretation).
Does a collective licensing scheme permit the copying or sharing of copyright material by consumers in exchange for a media or equipment levy? YES
ECA
For EducationIs reproduction permitted for the purposes of research or study? YES
Subject to fair use criteria: usage purpose, nature of the work, usage scope, affect on the commercial value of the copyrighted work and its potential market.		 CA s. 19 CO s. 1-2
Does any such research and study provision cover distance and online education? NO
No (not specifically) CA s. 19
May translations of works be made for educational purposes? LIMITED
Only if fair use criteria is satisfied. 		CA s.19
May works be reproduced and published by educational institutions in connection with systematic instructional activities? LIMITED
Pending litigation		 SHOKEN
OnlineIs hyperlinking to a Web site allowed without permission of the site's owner? YES
Are temporary or transient copies, incidental to a lawful use, excepted from copyright? YES
CA s.26
Are ISPs protected from liability for infringements by third parties, because the law either does not impose liability upon intermediaries or limits their liability in certain circumstances? YES
ISPs must expeditiously remove an infringing material from their networks if they become aware that it is likely to be infringing. Courts established the ISP limited liability doctrine and the current act draft adopted it.		 ECP s.9; BOROCHOF ; SUDRI
Do ISPs provide Internet access without conducting filtering or monitoring for potential copyright-infringing material? LIMITED
Research shows ISPs interfece internet traffic. 		NN
Are the names and personal information of customers who are alleged to have engaged in copyright-infringing behaviour protected from disclosure by their ISPs? LIMITED
Copyright owners may apply to court for subpoenas to expose the names and personal information of such customers. 		ARIEL; PREMIER
By content creatorsCan copyright works be non-commercially remixed or mashed up into new works? LIMITED
Remixed or mashed up works may be legal if done according to fair use criteria or incidental use.		 CA s.22
May computer software be reverse engineered for the purpose of creating interoperable software? YES
The law protects the right to create a derivative work for the purpose of interoperability. However, reverse engineering specifically is not discussed. 		CA s.24
Is the incidental inclusion of a work in other material permitted? LIMITED
Incidental inclusion of copyrighted work maybe allowed in a limited manner. 		CA s.22
Is there are copyright exception for parody or satire? YES
Satire is excluded but not parody.		 GEVA
Do creators who license their work retain the moral right of attribution? YES
The right is non-transferable		 CA s.45
By the pressIs there a copyright exception for the news of the day? YES
The news of the day are not protected; however, the form of expression of news is protected.		 CA s.5(5)
May copyright material be reproduced for the purposes of review and criticism? YES
CA s.19
May political speeches, speeches in judicial proceedings and/or other public speeches be used for any purpose? LIMITED
Copying and re-publishing may be excepted when the intention of the author was to be heard by a wide public. Court decisions and legislation are excluded from copyright.		 BITON
May quotations be used for any purpose? YES
According to CA expectations.		 CA mark D
By LibrariesMay libraries copy works that cannot reasonably be obtained commercially? LIMITED
for the purpose of work preserving only.		 CA s.30-31
May libraries copy works for users for the purpose of research or study? YES
CA s.30 (B)
Are libraries allowed to make preservation or archive copies of materials in their collections? YES
It can be done for the purpose of work preserving and replacement of a damaged copy.		 CA s. 30 (A)(1)
In making permitted copies, are libraries entitled to circumvent technological protection mechanisms (TPMs)? NO
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? LIMITED
According to provisions in "Equal opportunity to disable people" act.
In public affairsAre laws excluded from copyright? YES
CA s.6
Are other governmental works excluded from copyright? YES
Parliament protocols and courts decisions are excluded from copyright.		 CA s.6
Is there a copyright exception for use of material in judicial proceedings? YES
CA s.20
Are the results of publicly funded research required to be published under an open access license? NO

Freedoms to share and transfer

May copyright works be freely offered for commercial rental? LIMITED
Rental of a record, cinema work or software work is right protected by the copyright owner.		 CA ss.11(7), 17
Does the law permit a work to be released to the public domain before the copyright term expires, without any formality other than an overt act of relinquishment? LIMITED
Formaility has to be expressed
Are orphaned works treated differently in the law to other copyright works, for example by allowing them to be compulsorily licenced, limiting remedies, or by releasing them into the public domain? YES
The duration of copyright is limited to 70 year after the creation or first publication of the work. 		CA 40
Is parallel importation permitted? YES
Court may injunction parallel importation in a case of bad faith. 		ELIYAHU
Are there incentives for the use, production and dissemination of free and open source software within copyright law or elsewhere in national law/policy? LIMITED
Government provides limited incentives for open source by funding open source software localization projects and adopting open source in governmental offices and institutes.
Are there incentives for the use, production and dissemination of open access material (e.g. textbooks) within copyright law or elsewhere in national law / policy? NO
However, there are limited funded governmental and academic efforts to promote open access.
Are there specifications or incentives in national law/policy for the use of open document formats? NO

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual? 100,000 NIS (~28,000 USD) CA s.56
What is the maximum penalty for copyright infringement for a corporation? 100,000 NIS (~28,000 USD) CA s.56
Do the penalties for copyright infringement distinguish between personal versus (large-scale) commercial use, other than at the discretion of a judge? YES
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for purposes that would not infringe copyright? YES
Is the use of such devices by consumers permitted for any purpose that would not infringe copyright? YES
Does national copyright or consumer protection law require disclosure to consumers of the existence of TPMs and any potential limitations on the use of TPM-protected material? NO
Are the operations of copyright collectives subject to public oversight? LIMITED
Like any other NPO, with special regards to antitrust issues.
Are ISPs independent of copyright owners, to the extent that no law or industry code of conduct requires them to notify their users who are alleged to have committed a copyright infringement online? NO
Several courts already exepted "John Doe" procedure
Are criminal sanctions limited to cases of large-scale commercial counterfeiting? YES
commercial, but not only large scale
Are damages for copyright infringement based on the loss sustained, rather than by a pre-established or statutory damages award? YES
Statutory damages are subject to the damage the plaintiff incurred by the courts estimation (no requirements to prove damage).		 CA s. 56
Is there provision to penalise the wrongful allegation of copyright infringement? LIMITED
There is no specific regulation which address wrongful allegation of copyright infringement. However, specific clause is suggested at the draft of the E-commerce Act.

Conclusions

Israel's recently-passed Copyright Act is notable as containing one of the few examples outside the United States of a broad general exception for fair use.  It also contains a balanced and modern provision for the reproduction of computer softwarei, which includes some innovative exceptions such as reproduction for the purposes of service or maintenance of computer software, and for addressing bugs and security issues.

Whilst modern in this respect, the Copyright Act perhaps anachronistically - but more likely quite deliberately - omits to deal with the circumvention of Technological Protection Mechanisms (TPMi), thus allowing Israeli consumers to utilise their fair uses rights unfettered by blanket technical limitations.  Combined with the fact that mere possession of infringing material without commercial intent is not criminalised, Israel's law demonstrates remarkable balance in the face of significant pressure from content owners for a law slated in their interests.

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