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Israeli court enforces CC License for the first time

Jan 18, 2011
Last week, the District Court of Jerusalem enforced a Creative Commons license against a commercial user of photographs [C 3560/09 Avi Reuveni v. Mapa Publishing Ltd. Hebrew PDF]. The Court ruled that the infringement of 15 copyrighted photographs should be considered as 15 separate acts of infringement, rather than a single joint act. The decision marked the first time in Israel that a court has enforced a Creative Commons license. Pearl Cohen Zedek Latzer represented the plaintiffs in this pioneering case.

The plaintiffs, Mssrs. Avi Reuveni and Amir Rivlin, uploaded photographs they had taken during a journey to Jerusalem to Flickr.com. The photographs were published under a Creative Commons license which permitted non-commercial use, prohibited derivative works and required attribution. The defendant, Mapa Publishing, copied and used the photographs in a book it published, without receiving authorization from the plaintiffs and without proper attribution. One of the photographs was also published on the defendant's website.

Judge Zvi Zylbertal had no doubt as to the plaintiffs’ copyrights in the photographs and the infringement of those rights by the defendant. The Creative Commons license covering the works was merely mentioned in passing, and was accepted as a valid license that was breached. The main question was the sum of damages to be awarded and how it should be calculated – both sides presenting different interpretations of the Copyrights Act 2007. The court sided with the plaintiffs and ruled that a separate act of infringement is committed for each photo. This conclusion relied on the logic and purpose behind clause 56(c) of the Copyrights Act, which is primarily to deter such infringements. The court stated that there is no justification for regarding all 15 photographs as one work of art, seeing as each photograph describes a different object, was taken at a different time, and by a different person (either of the two plaintiffs).

The Court awarded the plaintiffs a total of NIS 47,000 (US $12,500) as damages: NIS 3,000 (approximately US $800) for each of the 15 infringements in the book, and NIS 2,000 (approximately US $650) for the publication of a single photo on defendant's website. Judge Zylbertal considered, amongst other issues, the fact that the plaintiffs are not professional photographers who earn their living from photography, and that the defendant removed the infringing books from circulation. However, he did weigh against the defendants the fact that they are book publishers that are expected to comply with copyright laws more stringently than others.

The defendant was also ordered to cover half of the plaintiffs’ court fees, and bear the plaintiffs’ legal costs in the amount of NIS 9,000 (US $2,400).

The plaintiffs were represented by Attorneys Tal Kaplan and Haim Ravia of Pearl Cohen Zedek Latzer.