On Monday, November 19, 2007, the Knesset (Israeli Parliament) enacted a new Copyright Law, which represents a complete transformation of Israeli intellectual property law. In May, 2008, within six months of the new law's publication in the official publication, the 96 year-old Copyright Law currently in force will be abolished. The current law, which has its roots in the English law of 1911, was applied in Israel in 1924 by the King's Privy Council. Over the years, the law was amended from time to time, and adequately served its purpose. Proof of the current law's success and adaptability is evident by the law's ability to protect intellectual property in new media, such as radio, television and computer software, which had not yet been conceived at the time at the time of the law's enaction.
The new law introduces numerous changes. Some of the most prominent changes in the new law are summarized below:
The law expressly recognizes certain new copyrights for the first time in Israel, including (a) the general right to produce a derivative work, a work based on a preceding work (e.g., a book dramatization); and (b) making available to the public which means "performing an action with a work so that people from among the public will have access to it from a place and time of their choice" (e.g., placing a work on an Internet website.)
According to the new law, copying a work requires the production of a tangible copy thereof. In this regard, copying comprises storage of the work in electronic or other technological means, including temporary copying, such as loading software into a computer's Random Access Memory (RAM). However, the law makes clear that if the aim of the copying is to enable other lawful use of the work, and the copy does not have any essential economic value of its own, such temporary copying is allowed.
The domain of "fair use" of the work, which, when adhered to, will not be regarded as infringement of its copyright, has been extended by the new law. In the past, the statutory list of permitted uses was exhaustive. Under the new law, there is no such statutory limitation of what will be considered fair use. As in the past, the list of uses includes self-instruction, research, review, journalistic surveying, and reporting. Added to these uses, however, are citing of quotations and teaching and examination by an educational institution. In other words, copying part of a work by an educational institution may constitute fair use of said work, provided further circumstances exist. Now, it is made clear that the list is cited as examples and that courts are given the authority to decide on further fair uses.
A new clause specifies permitted uses of computer software. This clause is particularly detailed, its main points being: It is permitted to copy software for backup purposes, for maintenance of an authorized copy of the software, or for servicing an authorized copy of the software on behalf of the owner (e.g., a computer technician has the right to copy software to a CD to enable him to give service to the lawful buyer of a license of such software). Furthermore, copying software to produce a derivative work is permitted in certain circumstances, including: in order to correct errors contained therein, to check the security of the information contained in the software, and to receive information required to adapt the software for compatibility with other software and systems.
Compensation Without Proof of Damages
This is one of the essential changes of the law. The current (old) law stipulates that compensation shall not be less than NIS 10,000 and not exceed NIS 20,000 for any right infringed. As a result, the Court lacked discretion in matters of determining damages. For example, damages in the amount of NIS 10,000 were adjudicated for showing a picture on an Internet site for 20 minutes, even though it had been proven to the Court that the photographer’s actual damages would have amounted to no more than NIS 400.
The new law blurs the distinction between compensation without proof of damages and conventional damages. First, the law does not include a minimum amount of damages, and the maximum amount for each infringement was raised to NIS 100,000. Second, the considerations that the Court should follow when adjudging the indemnification are enumerated to include: the extent of the infringement, the duration thereof, the severity thereof, the actual damage caused to the claimant as estimated by the Court, the profit gained by the respondent, and the characteristics of the respondent's action. All these may be significant considerations when estimating the actual damages.
Moral right includes the right to claim authorship of a work and to object to any distortion, mutilation or other modification, or other derogatory action in relation to the work that would be prejudicial to the honor or reputation of the author. In the new law, it is expressly established that the moral right does not apply to computer software. Consequently, technology companies may change the software they develop without concern for a potential claim by an employee author that his moral rights were infringed. The law determines that moral rights are personal in nature and cannot be transferred, even if the title of the work was transferred. Furthermore, it is stipulated that if a work was modified, and the court determines that the action of modification was reasonable under the circumstances, this shall not be construed to be an infringement of the moral right.
Transfer of Copyright and Granting a License
Until now, granting of a license to use a work or transfer title of a work was invalid, unless made in writing and signed by the owner of the copyright. The new law cancelled the need for a signature, and determined that a document in writing would be mandatory only if the agreement transfers title or grants an exclusive license. In this context, an exclusive license is a license granting the right to do one of the transferred actions in a unique manner to the owner of the right, as for example, copying or public performance, while simultaneously limiting the owner of the right to make or to grant similar licenses to others.
Entitlement to Claim Damages for Copyright Infringement
Until now, only the owner of a copyright had the right to file a claim for infringement. Therefore, if a company, being the owner of a unique license for transmitting in Israel a certain television broadcast, would have intended to sue someone who transmitted the broadcast contrary to the company's rights, it would not have been able to do so itself. The new law stipulates that the owner of an exclusive license also has the right to file a claim.
Public Use in an Educational Institution
Based on the new law, a public performance of a work is allowed in the course of educational activity of an educational institution, under conditions stipulated in the law. This means that singing or playing a song, for example, at a school ceremony, will no longer require the permission of the owner of the copyright.
Copyrights have been entirely cancelled in laws, regulations, Knesset speeches, and in Court judgments or those of any other governmental authority exercising jurisdiction according to the law.
Government initiated works
One aspect of the new law of particular note to providers of services to the State relates to work ordered by the State. In a work produced or ordered by the State, the State will be the owner of the copyright. The copyright term of a work owned by the State is shortened to 50 years from the date of production of the work, instead of 70 years from the death of the author.
Up to the present, the protection of photographs lasted for 50 years from the date of creating the negative. From now, it will be the same as other works, i.e., 70 years from the death of the author.