AKUM Received injunction against Arab Music Website

April 22, 2014

Music Pirate

The District Court has accepted charges brought by AKUM (Israeli artist’s copyright collection society) and the French equivalent for whom it acts as a collection agency, that the INTERNET site Kol ElArav, had played some 20 musical creations without approval, and that AKUM could collect sue on behalf of the French Collection Society. Counter-claims that the congs were owned by an Egyptian production company or that the website had paid royalties were dismissed as unfounded.

A permanent injunction was granted, and the defendant was ordered to pay 75,000 Shekels compensation.


Israel Removed from Special 301 Watch List

March 3, 2014

pirate food pyramid

Oh, better far to live and die
Under the brave black flag I fly,
Than play a sanctimonious part,
With a pirate head and a pirate heart.
Away to the cheating world go you,
Where pirates all are well-to-do;
But I’ll be true to the song I sing,
And live and die a Pirate King.

Pirates of Penzance Gilbert & Sullivan

At the end of January 2014, the Office of the United States Trade Representative removed Israel from the intellectual property watch list of the Special 301 Report. This formally means that the United States, who are, of course, totally objective leaders of the free world, no longer consider Israel to be a haven for pirates.

TEVA is the largest company traded on the Tel Aviv Stock Exchange, and is the world’s biggest manufacturer of generic drugs. Israel has appeared in the watch list since 2005 since its patent laws did not conform to the standards that the US demanded, particularly in the field of generic drugs. Inclusion on the Watch List of the Special 301 Report subjects countries to increased scrutiny on relevant trade issues, and even possibly to sanctions.

Unlike WIPO that reflects international IP agreements reached by the countries of the UN, or even TRIPS which reflects an international regime pushed through by the US under the World Trade Organization in an attempt to bypass WIPO, The Special 301 Report simply reflects narrow US interests and does not reflect international standards accepted by the world, the free world, the Western world or advanced economies. It represents the US trade interests.

Israel recently amended its Patent Law to US satisfaction. See here. Not overly surprisingly, various Israel Ministers are on record as stating that this kowtowing to US financial bullying is a positive development. Economy Minister Naftali Bennett’s spin is that the decision is an “important vote of confidence by the US”. He believes that the move will help Israel advance its industry and innovation, not just in the US but around the world. Justice Minister Tzipi Livni has vowed to continue strengthening Israeli intellectual property rights. “This is a significant achievement, which reflects great efforts for advancing the international status and position of Israel as a leading country in intellectual property,” she said.

This development is the culmination of negotiations between the US and Israel from 2008 onwards. See 2009 article and 2010 article for the history. Beyond the hype, we suspect that this development does not particularly help TEVA and may account for recent job losses and talk of the company moving more activities abroad.


Israeli Photographer Wins Copyright Damages from AlJazeera

February 24, 2014

AljazeeraAl JazeeraDalal

Shmuel Rachmani photographed a bus destroyed on the coastal road in a terrorist attack in April 1978, including photographs of the terrorist, Dalal Mugrabia, and one of a victim. At the time, the photographs were printed in Maariv, then Israel’s evening newspaper, now a weekly.

On 15 March 2010, Israel’s Channel 10 broadcast an item about Dalal Mugrabi during which, the two images were aired together with the Al Jazeera icon, thereby alerting the photographer that Aljazeera had infringed his rights. In the Maariv paper from where the photographs were taken, the name of the photographer was displayed, so Shmuel Rachmani alleged that in addition to copyright infringement, his moral rights were trampled on.

Rachmani sued for a total of 80,000 Shekels, consisting of two counts of willful copyright infringement and two counts of willful moral rights infringement. Under the 2011 Copyright Ordinance, the maximum damages is 10,000 Shekels, but for willful infringement, this may be doubled.

Rachmani also requested an injunction against Aljazeera, but dropped this demand. In separate proceedings Rachmani sued Channel 10 and came to an out of court settlement.

Attempts to mediate a settlement were in vain. During preliminary stages of the trial, 7,000 Shekels in legal fees were awarded to the plaintiff.

THE RULING

Judge Raphael Jacoby of the Jerusalem District Court rejected arguments regarding Jurisdiction under International Law, standing and the like, and considered them damaging to the defendant. He noted that Aljazeera is broadcast on local cable television under license, so the company has local presence.

Jacoby went on to rule that the pictures were creative works that were protected by copyright and dismissed the hot news defense, noting that the images related to a historic event from 36 years ago. He did not consider the usage incidental. He acknowledged that the photographer could not produce the negatives and prove ownership or produce proof that the copyright was not transferred to Maariv, but accepted evidence of the archivist of Maariv that this was the standard work terms between the parties, and the acknowledgment of the photographer in the original newspaper as proof that Rachmani was the copyright owner.

Noting that under the new law, Rachmani could sue for 100,000 Shekels a time, Judge Raphael Jacoby ruled that the damages sought were proportional and ordered that Aljazeera should compensate Rachmani a total of 50,000 NIS for the infringements and should pay a further 15000 Shekels in legal fees.

T.A, 45542-12-11 Rachmani vs. Aljazeera International LTD, Jerusalem District Court, by Raphael Jacoby, 19 February 2014.


The Diary of Anne Frank – Can it be protected past January 2016?

February 11, 2014

Anne frank

The Diary of Anne Frank is a well-known book that Anne Frank wrote whilst in hiding from the Nazis in a house at Prinsengracht 263, Amsterdam. It is an important eye witness account of the Second World War from the perspective of a teenager.

Anne was caught, transported to Bergen Belsen where she died in March 1945, a month before the camp was liberated by the British.
Her father, Frank, found the diary and published it. It has been translated into many languages and is very widely read.
The copyright is owned by the Anne Frank Trust, an organization that Anne Frank’s father founded. It will, however, enter the public domain in January 2016.

The Anne Frank Trust has applied for trademark protection for “Het Dagboek van Anne Frank” (“The Diary of Anne Frank”) and “Het Achterhuis” – The Hiding Place, also known as the secret annex.

The Benelux Office for Intellectual Property (BOIP refused to register the word marks for goods and services in Classes 9, 16, 39 and 41 on grounds that the phrases do not have sufficient distinctiveness to qualify as trademarks. They will not be understood by the public as a sign that the goods and services of a certain company can be distinguished from those of others. The BOIP also held that “Het Dagboek van Anne Frank” and “Het Achterhuis” describe the content of the films, books and plays which will be published under these trademarks.

The trust appealed, but was unsuccessful. In a similar argument to that of the BOIP, the Court of Appeal felt that the marks lacked sufficient distinctiveness because they “described” the content.

COMMENT
The diaries should enter the public domain. This is why copyright has a limited period of protection. The Dutch Parliament could pass a special law, similar to the Peter Pan Amendment to UK copyright law, which keeps J. M Barrie’s protected since royalties were donated to the Great Ormond Street Hospital by the Peter Pan Bequest. When the copyright originally expired at the end of 1987, 50 years after Barrie’s death, the UK government granted the hospital a perpetual right to collect royalties for public performances, commercial publication, or other communications to the public of the work.

Copyright, Designs and Patent Act 1988 Section 301 Provisions for the benefit of the Hospital for Sick Children:

The provisions of Schedule 6 have effect for conferring on trustees for the benefit of the Hospital for Sick Children, Great Ormond Street, London, a right to a royalty in respect of the public performance, commercial publication [F1or communication to the public] of the play “Peter Pan” by Sir James Matthew Barrie, or of any adaptation of that work, notwithstanding that copyright in the work expired on 31st December 1987.

The UK copyright was subsequently extended through 2007 by a European Union directive in 1996 standardising terms throughout the EU to the author’s life plus 70 years.

The Dutch and British cannot make exceptions and expect the rest of the world to follow suit. The problem with lex specialis, no matter what the justification is that it is, just that: a special law.

I am not a great fan of using trademarks to extend copyright either. Presumably if the Anne Frank trust use the term Anne Frank or the Diary of Anne Frank in trade, they can have rights to the mark. In all, a reasonable decision.


Israel Newspaper to Pay Compensation for not correctly attributing photographs to photographer

February 6, 2014

Israel_Post

Israel Post is a Hebrew Language free paper distributed via supermarkets and the like. It is published by Jerusalem Post Publication Media LTD who publish the Jerusalem Post, an established Israel daily newspaper in the English language.

Ariel Yeruzolimsky was a photographer that was employed by the Jerusalem Post over 11 year period up until 2010. The work contracted established that the Jerusalem Post owned the pictures. On 32 occasions, his photographs were printed in the Israel Post. Due to the work contract, there was no case of copyright infringement. However, the pictures were accredited to a different photographer and Yeruzolimsky claimed 32 statutory awards of 10,000 Shekels in statutory moral damages, arguing that each and every photograph published was a separate infringement, a further 200,000 shekels for damages to his reputation and 150,000 Shekels for suffering caused, but the fee paid entitled him to a maximum total of 420,000 Shekels.

Judge Michael Tamir of the Tel Aviv-Jaffa Magistrate’s Court accepted that each and every photograph published was a separate infringement but ruled that in the circumstances, and where the same photograph was used more than once, there was no justification to award maximum statutory damages.

The judge noted that the photographer had requested accreditation over and over again, but the Post continued to publish his photographs without proper accreditation. On the other hand, he considered the photographs fairly run of the mill images that were not of major historical significance ,lacking in particular artistic merit and which had not endangered the photographer’s life to obtain. He dismissed the defence of an unintentional mistake made without inequitable beahviour, and also the newspaper’s rights to publish the news, noting that the paper was aware that there was copyright in the photographs, and should have correctly attributed the pictures. The error was an unintentional mistake, but it was avoidable had the Jerusalem Post taken its obligations seriously. However, the judge did not consider that the photographer was actually harmed by the publication of his photos. Nor did he believe that the photos had resulted in a profit to the Post, i.e. had helped sell papers. He noted that the law gave him wide latitude in ruling damages. He awarded 77,500 Shekels in statutory damages, a further 10,000 Shekels for the suffering caused, 3000 Shekels in legal expenses and 12,500 Shekels for legal costs.

T.A. 19977-03-11 Tel Aviv Magistrate’s Court: Ariel Yeruzolimsky vs. Jerusalem Post Publication Media LTD. by Michael Tamir, 20 January 2014.


Copyright Claim Filed in US Regarding a Screenplay set in a Concentration Camp

February 5, 2014

 

Writers Bernard Hiller and Gabriel Bologna claim Mexican filmmaker Luis Mandoki  has misappropriated central elements of their screenplay set in a concentration camp to develop a competing story of his own. Hiller and Bologna claim that the Mexican filmmaker was hired to direct their screenplay “Brundibar” after co-defendant Informant Media optioned the work in February 2012 for a year long period. During the option period, Mandoki allegedly read the screenplay several times, and used the writers’ work to develop his own project.
The writers say that although their story relates to historical events and characters, it includes original material that is copyright. According to the lawsuit, Informant Media did not extend the option agreement after it elapsed, then pitched Mandoki’s screenplay around town. Alleging copyright infringement and contributory copyright infringement, the plaintiffs seek $1 million in general, special, actual and statutory damages. They also want Informant and Mandoki enjoined from making the film.  For more information, see here.

COMMENT

I suppose fictional parts of a film based on the Holocaust are subject to copyright. I still find this type of development makes me feel uncomfortable.


Apollo and Polo vs. Krause Direct Marketing LTD.

January 19, 2014

Summer Holiday  Holiday on the buses

This is a double case concerning alleged infringement of trademarks and counter claims of copyright infringement. The subject matter are backpacks made in China and imported for distribution by Egged, a large Israel Cooperative Bus Company, to children of employees at summer camps ran on behalf of the company. Hence the pictures which relate to perhaps two of the worst British films of the Sixties and Seventies.

The first case concerns a complain by the related companies Apollo ADKS LTD, Promo Polo LTD and Polo Universal LTD which sued Krause Direct Marketing. Apollo et al. claim to own the intellectual property in a backpack manufactured and supplied in 2009 to Egged, a large Israel Cooperative Bus Company. The following year, Krause Direct Marketing provided similar bags complete with the Polo Star registered trademark owned by Apollo et al.

 In the second case Krause Direct Marketing sued Apollo ADKS LTD. Promo Polo LTD and Polo Universal LTD., claiming that in 2010 Apollo et al. used copyright images from Krause’ 2009 catalogue in their 2010 catalogue and website. Since the parties are common, the two cases were ruled on together, despite the issues being different, but the evidence and summaries were kept separate.

Background

Both Apollo and Direct Marketing are private companies that import and distribute a range of goods manufactured by foreign entities, typically in China. The goods are generic items supplied to interested wholesalers who source them, import and sell them on.

Apollo supplies the bags as Polo Star and Direct Marketing supplies the bags as Innopak, Free Style and Green Bag. Until 2010, the two companies had a shared marketing relationship, before the bag related complaint was filed.

Originally, Apollo sued Egged and shareholders of Krause Direct Marketing, but came to a settlement with Egged and dropped the charges against the shareholders.

The history of the bag

In 2009 Egged ordered 8000 bags from Apollo for distribution to children of employees at a private summer day-camp organized by the cooperative. The bags carried both the Polo Star logo and Egged’s logo and Egged ordered some minor changes to the dimensions of the bag, and selected a green colour for the bag. (Presumably the choice of colour reflects the fact that Egged buses are coloured green to indicate their environmental friendliness).

In February 2010, Apollo asked if Egged were interested in a repeat order, but Egged indicated that they were not interested in purchasing an Apollo design. However, in July 2010 it transpired that Egged were distributing bags to their summer campers that had the Polo Star logo, but import tags from Krause Direct Marketing. Apollo claimed that this was infringing their intellectual property.

Krause Direct Marketing accepted that the bags they distributed included the Polo Star logo, but claimed that this was an unintentional mistake that they only realized when Apollo sued them. What had happened was that Egged had requested that they supply them with bags with various changes and improvements such as a lighter coloured fabric with a different texture and wider straps. The bags should have been supplied under the trade-name Innopack, not Polo Star, however the Chinese supplier made a mistake and used the wrong name, and didn’t bring the error to the importer’s attention.

Krause Direct Marketing did a cursory check in Ashdod Port and found that the bags were not marked at all. Due to the tight schedule they simply ordered that large labels be attached. Egged claimed to have also done a cursory check. On receiving a Cease and Desist and a temporary injunction, both Egged and Krause Direct Marketing did a more thorough check of remaining stocks and discovered that some carried the Polo Star logo. In the settlement, Egged agreed to give the bags over to Apollo and to give Apollo the first right of refusal for contracts for up to half a million shekels for the next three years.

Apollo sued Krause Direct Marketing claiming trademark infringement, (unregistered) design infringement and on various other grounds.

Trademark Infringement

Krause Direct Marketing noted that the Polo Star mark had lapsed on 28 May 2010 due to failure to pay renewal fees and was reinstated on 14 July 2010, so was not in force at the time the bags were supplied. Krause Direct Marketing further noted an Israel Trademark Office decision of 24 August 2010 that some marks could not be registered due to the well known Ralph Loren marks for Polo, and so submitted the rather convoluted argument  that if there was a likelihood of confusion it was with Ralph Loren and not Polo Star. Finally, Krause Direct Marketing argued that they had specifically asked the Chinese supplier not to embroider Polo Star’s logo on the bags, and since they were competing with Polo Star and were independently branding a superior product, they had no interest in the Polo Star logo appearing on the bags, so there was no issue of bad faith in Krause Direct Marketing’s behaviour, despite the unfortunate mistake with the branding.

In response, Apollo argued that in civil trademark disputes there is no need to show that the infringer intentionally infringed, and that the act of infringement was enough to create a basis for claiming damages. Furthermore, Krause Direct Marketing had not proven that they did not want to benefit from Polo Star’s mark and certainly had not taken adequate precautions to avoid infringing. Apollo alleged that the storeman of Egged noted that of the remaining 3220 bags, 1270 carried the Polo Star mark, and so apparently around 40% of the order of 8000 bags, i.e. 3400 bags infringed Apollo’s mark.

Unjust Enrichment

Apollo claimed to have designed and developed a unique bag that Krause Direct Marketing were able to supply to Egged at a 15% discount since they did not have the development costs.

Krause Direct Marketing argued that Apollo’s original design was taken from Krause Direct Marketing’s catalogue. Egged ordered changes to that. Apollo thus did not design the original bag, and the bag that Krause Direct Marketing supplied was upgraded and used different fabrics, different colours and incorporated additional changes.

Krause Direct Marketing further argued that they had only lost money on the episode since they had to compensate Egged, had lost future marketing opportunities with Egged to Apollo and bags with Polo Star logo instead of the Innopack logo did damage to Innopack’s market presence.

Passing Off

Since the bags supplied by Krause Direct Marketing bore the Polo Star logo and was a Polo Star design, there was a clear case of passing off, and Apollo claimed statutory damages of NIS 100,000.

Krause Direct Marketing argued that since there was one customer (Egged) who had not wanted Polo Star bags, there was no passing off. The bags included an attached label stating the origin and were of a different design from the Polo Star bags of the previous year, which themselves had only had a limited distribution of 5000 or so, and so had no reputation anyway.

Other claims

For good measure, Apollo claimed that Krause Direct Marketing’s actions were robbery, interference in other’s business, commercial malpractice due to failure to take precautions, trademark dilution, deceiving the consumer, false marketing, and infringing statutory rights.

Krause Direct Marketing denied these, claiming that none of these additional charges were proven.

The ruling

In the ruling on the trademark infringement, Apollo’s claims were thrown out and Apollo was ordered to pay 25000 Shekels compensation to Krause Direct Marketing.

On the second case of copyright infringement, where Krause claimed that Apollo et al. had used images from their catalogue, the judge accepted that there was copyright in the catalogue images and that it was infringed. Apollo was ordered to pay 24,000 Shekels to Krause Direct Marketing and 10,000 Shekels legal fees.

COMMENT

I waded through 35 pages to write up this case. I suspect it should never have made it to court.


Claims for Statutory Copyright for Screening Euro-League Matches Thrown Out by Israel Court

January 10, 2014

Euroleague

Charlton LTD has the franchise to screen Euro League football matches in Israel, and does so via cable television networks HOT and YES.

Charlton sued Sachar Abu Saah for screening the matches without permission, claiming statutory  copyright damages of NIS 100,000.

Judge Hadassa Asif of the Hadera Magistrate’s Court threw the case out since Charlton only attached some pages of their contract, and not all of it, and the defendant successfully argued that by not submitting the contract in its entirety the plaintiff had failed to establish that they owned the copyright allegedly infringed.

ת”א 18812-01-13 צ’רלטון בע”מ נ’ אבו סאח

T.A. 18812-01-13 Charlton LTD vs Abu Saah, Judge Hadassa Asif of the Hadera Magistrate’s Court, 22 December 2013


Dr Ilan Sadeh’s Appeal to Supreme Court Rejected

December 29, 2013

boundary condition

Dr Ilan Sadeh is a mathematician, computer scientist and electrical engineer who claims that back in 1992 he developed some boundary condition theory concerning search engines and databases, thereby solving a problem which was not addressed for over 40 years. He was put out that his name wasn’t mentioned and his contribution wasn’t acknowledged in a review paper written by a Stanford academic – Professor Amir Dumbo, together with a student, and published in an IEEE journal edited by Professor Shlomo Shitz-Shamai. Professor Neri Merhav and Professor Ram Zamir also published articles in the IEEE journal, which failed to mentioned Sadeh’s contribution.

Sadeh sued the four academics and the IEEE for NIS 800,000 for copyright infringement, moral right infringement, malpractice by failure to exhibit due care and unjust enrichment.

The defendants requested for the case to be thrown out.

In the ruling, the court of first instance ruled that failure to reference or acknowledge an earlier researcher is not actionable under copyright law. Since there is no copyright in an idea, there is no moral right either. Charges of Unjust Enrichment and failure to take due care were also dismissed.  The court further ruled that the first three defendants hadn’t done anything actionable.  As for the US academic and the publisher, the court ruled that the charges were not properly served to the Stamford academic or to the publishers (IEEE – Institute of Electrical and Electronic Engineers). Since Professor Amir Dumbo emigrated to the United States in 1989 and was domiciled there, the Court of First Instance accepted that Israeli courts were not the correct forum. Furthermore, the court ruled that since Sadeh claimed that some 9 academic publications has wronged him in a similar way, the addition of two Israeli defendants was simply to try to create territorial jurisdiction in Israel for something where the US was clearly the proper jurisdiction to hear the case. The court also accepted Professor Dumbo’s contention that the case had been heard by a committee of academics appointed by the IEEE and again on appeal.

158219-09 Dr Ilan Sadeh vs. Professor Shlomo Shitz-Shamai, Professor Neri Merhav, Professor Ram Zamir, Profesor Amir Dumbo and the IEEE., Tel Aviv Magistrate’s Court 7 July 2010

On 12 November 2013, the Tel Aviv District Court rejected the appeal, upholding the magistrate’s court ruling. It awarded costs of NIS 11,800 to the Israeli academics (defendants 1-3 together, and to the US academic and the journal independently.

Civil Action 11416-09-10 Dr Ilan Sadeh vs. Professor Shlomo Shitz-Shamai, Professor Neri Merhav, Professor Ram Zamir, Profesor Amir Dumbo and the IEEE, Tel Aviv District Court 

Dr Sadeh then appealed to the Supreme Court. Judge Amnon Rubinstein refused to reopen the case, and was dismissive of arguments brought by Dr Sadeh. From his comments, it would appear that Dr Sadeh did not address the issues raised and his legal pleadings were lacking in format and style.

COMMENTS

It appears that Dr Sadeh has sued Ben Gurion University, Tel Hai academic college and the State of Israel in the past.  Since he has so much hands on experience of litigation, I feel it is perhaps inappropriate of me to criticize. Nevertheless, I would respectfully point out that whilst one does not have to retain the services of an attorney to sue in Israel, it is generally strongly advised for anyone planning on litigation, particularly appealing to the Supreme Court, to use an attorney. There are approximately 55,000 of them in Israel.

The District Court cited the Petach Tikveh Doggy DNA case and Angel vs. Berman. Also cited were the Adidas case. I found the legalese unnecessary and tiring. The cited cases were not really relevant and, in my opinion, are best forgotten.

We note that there is a distinction between copyright and Jewish Law in this matter. In Jewish Law, there is an obligation to credit sources, but copying of ideas and using them is not considered wrong or inappropriate. They are in the public domain automatically, but the authors deserve credit. In Copyright Law, crediting sources is not a legal requirement, but quoting a significant amount is an actionable.

 


Advertising Slogans and Other Elements of Advertising Campaign Covered by Copyright

December 29, 2013

cemetary

Alei Shalechet, which literally means, ‘Autumn Leaves’, provides burial services. Actually, services is perhaps the wrong word, because their specialty is burials without a service, i.e. secular funerals.

Lifetime events in Israel are managed by the clergy. Most Israelis, even those who are ambivalent towards religion, want a traditional funeral. However, there is a minority who want a civil burial. Then again, not everyone who passes on is eligible for a Jewish, Christian or Muslim burial. Nevertheless, this is a dead-end business that has little appeal to me.

Presumably to drum up business, since few clients want burying more than once, Alei Shalechet ordered an advertising campaign from an advertising agency called  Kav HaOfek Maarechot Shivuck V’tadmit LTD. (Horizon Marketing and Image LTD). This included a Power Point presentation and a slogan. Alei Shalechet eventually used a different publicity firm, but used the slogan provided by Kav HaOfek.

The Kav HaOfek firm sued for Copyright infringement and Unjust Enrichment, and eventually were awarded NIS 75,000 in damages. Notably, the CEO of Alei Shalechet, Alon Netiv, was found personally guilty.

Civil Case 7357-09-10 Kav HaOfek Maarechot Shivuck V’tadmit LTD. vs. Alei Shalechet and others, Petach Tikveh Magistrates Court

COMMENTS

The Jewish content at a funeral is fairly minimal and I’ve never seen strong opposition to playing the deceased favorite music. For those wanting cremation, it may be a little more difficult. There are a couple of griffon vulture colonies in Israel, and food is put out to feed the birds. I suppose this offers the opportunity for Nepalese style sky burials. Maybe those not wanting a traditional funeral could donate themselves or their nearest and dearest to medical schools? Many rabbis are against this practice, but it does seem sensible for wannabee surgeons to cut their  teeth hone their skills on the already deceased.


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