ISRAEL
ISRAEL ROUND-UP: IMPORTANT CASES IN 2012
Nahum Gabrieli Seligsohn Gabrieli & Co
Unauthorised streaming of Premier League football
In a very controversial judgment the Tel Aviv district court denied an action brought by the UK Football Association Premier League Ltd, ruling that the unauthorised streaming of football matches fi lmed by the plaintiff did not constitute copyright infringement. T e district court considered the defendant’s actions, which involved off ering the footage for free, to be protected as fair use. T e Supreme Court accepted the appeal of the Premier League, ruling that the defendant infringed copyright. However the Supreme Court refused to order the Internet service providers (ISPs) to reveal the defendant’s identity.
T e Supreme Court ruled that while a football match itself is not copyrightable, the manner in which sports events are documented and edited is copyrightable, since it requires a substantial amount of creativity.
T e district court ruled that ‘streaming’ is not ‘broadcasting’ as defi ned in the 2007 Copyright Act and therefore the defendant’s actions did not constitute copyright infringement. T e Supreme Court reversed this ruling and held that ‘broadcasting’ exists where there is a “wired or wireless transportation”, and that there is no justifi cation to limit ‘broadcast’ to the technical means which were available prior to the Internet age. T e court also ruled that ‘streaming’ of data fully accomplishes the concept of ‘broadcasting’. T erefore in making the matches available to the public on the Internet, the defendant is liable for infringing the plaintiff ’s copyright.
T e Supreme Court further ruled that the defendant may not enjoy the defence of the fair use doctrine, since his use was commercial, and the work was not transformed but used exactly as created by the plaintiff . T e Supreme Court acknowledged that an important portion of the profi ts of sports leagues and professional associations in this fi eld is generated from the selling of broadcasting rights. Allowing the defendant’s activities would damage sports organisations and will not promote the important goal of encouraging public sports.
82 World Intellectual Property Review e-Digest 2013
T e fi nal issue discussed was the necessity of revealing the defendant’s identity, in order to allow the plaintiff to enforce the judgment and receive compensation for the copyright infringement. T e Supreme Court acknowledged the necessity of ordering the ISPs to reveal the site owner’s identity, but there is no basis to such an order in Israeli law and therefore the court was unable to grant it. T e court suggested diff erent possible routes to obtain such an order (such as legal action against the ISPs based on the tort of negligence; use of contributory infringement doctrine against the providers; etc), but the majority ruled that an order cannot be granted without an explicit provision in law. T e court reiterated the importance of this issue and urged the legislator to enact the necessary laws required.
Copyright in documentary photographs
T e defendant created a three-dimensional medal—commissioned by the Royal Norwegian Mint for the Nobel Peace Prize Winners series—adopting a portrait of the late Israeli prime minister Itzhak Rabin, which was created by the plaintiff , a professional photographer, during a formal memorial service at an Israel Defense Forces base.
T e plaintiff sued for copyright infringement. T e Magistrate Court ruled that indeed the defendant had infringed the plaintiff ’s copyright. T e District Court reversed this judgment ruling that the plaintiff ’s work was not entitled to copyright protection being a documentary work. T e plaintiff requested leave to appeal this second judgment to the Supreme Court. T e Supreme Court granted leave and reversed the District Court’s judgment, holding copyright infringement and ruling that documentary works are even more valuable to society—historically, culturally and socially—than non-documentary works, and therefore it is appropriate to encourage documentary artists to create such works.
T e fact that a documentary photograph may feature objects which are in the public domain does not diminish the artist’s creativity in choosing the
www.worldipreview.com
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