New Israeli Copyright Law

Publié le 09/12/2009 par Yossi Ben-Dror - 264 vues

Although the general principle under the Copyright Law remains the same as on the eve of its enactment (i.e., that the author is the owner of the work), the Copyright Law provides two exceptions. The first – work created by an employee in the course of his/her employment and as a part of his/her service – remains the property of the employer, unless agreed otherwise by the parties; the second – in the case of work that is a portrait or photograph of a family or other private event made pursuant to a commission, the first owner of the copyright therein shall be the commissioning party.

The Copyright Law extends the “fair use” doctrine by overwriting the narrow definition under the previous legislation, allowing the courts more flexibility in deciding what constitutes “fair use” on a case-by-case basis.

The Copyright Law stipulates standards for the “fair use” doctrine, including the purpose and manner of the use, the nature of the protected work, the amount and substantiality of the portion used in relation to the work as a whole, and the effect of the use upon the value of the work and its potential market. For example, use of the work for purely educational use or for electronic backup purposes shall be considered as “fair use.”

The Copyright Law differentiates between copyright and moral right, limiting the type of works over which authors are entitled to exert their moral right. Software applications and records, for example, are specifically excluded. As a moral right cannot be assigned or transferred under the Copyright Law, but can only be waived, it is important to explicitly address the issue of the author’s waiver of his/her moral right in any assignment or transfer of copyrights.

The Copyright Law raises the upper limit for “compensation without proof of damages” to NIS 100,000 (to date, approximately US$ 25,000) as well as abolishes the lower limit (which used to be NIS 10,000). Pursuant to the Copyright Law, the courts may consider several factors, such as the scope, duration, and severity of infringement, actual damages benefit to defendant due to infringement, the nature of the defendant’s activities and the defendant’s good faith.

The Copyright Law requires a written instrument to execute the transfer of a copyright or to grant an exclusive license to use a protected work, and provides that both the owner of a copyright and the exclusive licensee of a copyright shall have standing to file a claim relating to the copyright against third parties.