Slogans to be treated like any other trademark applications

January 17, 2012

The Tel Aviv District Court has upheld a decision by the Israel Patent Office  to refuse Eveready’s Trademark Application Number TM 204, 832 for shaving creams and 204,499 for razors and shavers  for the slogan “Free your skin”.

However, the court has over-turned the assumption that slogans are always descriptive or laudatory and therefore invariably non-registerable, ruling that they should be examined like any other mark. Consequently, the current Commissioner or Patents and Trademarks Adv. Assa Kling has cancelled Patent Office Circular MN 29 that held that slogans cannot be registered.

BACKGROUND

On August 28, 2010, then Deputy Commissioner Noah Shalev Shmulovits upheld a decision of the trademark examiner, that Israel Trademark Number    was invalid for registration.

Shmulovits based his decision on Israel Patent Office Circular Number M.N. 29 in which then Commissioner of Patents and Trademarks Dr Meir Noam ruled that slogans could generally not be registered.

Since then, there have been a number of exceptions. See  for example party-like-a-rockstar,  im-lovin-it, shufersal, its-all-for-you, bleach-free and diamond in your pocket  for specific rulings.

Eveready appealed the decision to the courts. In a well-reasoned ruling, Judge Yitzhak Anber has ruled that slogans may often be laudatory or descriptive, but should be considered as simply multi-word marks and judged on their merits.

21488-05/11 Eveready vs. Commissioner of Patents and Trademarks, Tel Aviv District Court  by Judge Yitzhak Anber, 8 December 2011.

Leave a Comment » | Israel, Israel Court Ruling, Israel IP, Israel Patent Agency, Israel Patent Office, Israel Patent Office Rulings, Israel Related, trademarks | Permalink
Posted by Dr Michael Factor

Kiss but don’t tell

December 4, 2011

In a case referred to as Plonit vs Ploni and Almonit (from Ruth 4:1), the Jerusalem District Court has issued an injunction to recall a book written by a student “Ploni” (i.e.  John Doe), that documented his relationship with a second student “Plonit”  (i.e.  Jane Doe) that he had previously enjoyed a romantic liaison with.  The relationship was originally kept discreet as Ploni was married and the student was living with her “Significant Other”, but eventually their circle of friends knew about the relationship, and, after Ploni separated from his wife, he was known to be living with the student.

A temporary injunction to recall unsold books and to prevent their circulation and further publication was obtained fairly quickly and upheld by the Judge Gronis of the Supreme Court. This ruling concerns making the temporary restraining order permanent and alleged damages to the plaintiff.

The plaintiff claimed that her private and public world were described in graphic detail, including her body, emotions, weaknesses, conscience, activities and preferences for sexual stimulation. She alleged that the publication damaged her privacy, good name, and cruelly exposed, shamed and insulted her. Furthermore, since extracts of some of Plonit’s letters were published, and her final college project was described, there were charges of copyright infringement in addition to invasion of privacy.

The publisher claimed ignorance of the biographical aspects of the book and that they were under the impression that the work was pure fiction. On the suit being filed, they recalled the unsold books pending judgement. However, nearly one thousand copies were already sold by then.

The defendant led a spirited defense to allow publication, and brought expert opinions of literature professors Ariel Hershfeld, Hanan Hever and Mira Magen to substantiate his claims that the style of the work was that of fiction. He claimed a free speech defense, alleging that allowing the plaintiff to prevent publication of a fictitious work based on alleged similarity would prevent the publication of fiction in general, since the author invariably draws on his/her life experiences.  He further asserted that the public interest was to allow publication, in that the subject matter of broken families and relationships are of clear public interest.

In her ruling, Judge Kanfei-Steinitz found the publishers claim of ignorance convincing and dismissed the charges against them.

Though recognizing the value of free speech, she ruled that free speech is not absolutely protected and a balance needs to be struck between free speech and other rights, including the right to privacy, noting that both are fundamental rights, with right to privacy being protected by the Basic Laws. In addition to the case-law, she quoted from the ruling by Supreme Court Judge Gronis, concerning the appeal to the temporary restriction order in this case, where he pointed out that one of a couple in an intimate relationship is entitled to prevent the other party from publishing details of that relationship as this is fundamental to society.

The plaintiff’s case was strengthened by the defendant’s ex-wife’s attempts to prevent damaging details about her and the children being published and by a recording of a conversation between herself and the author where she asked him how he could publish all the details of their relationship.

Due to the nature of the final year project of the heroine of the book, her place of study, the area where she lived and where her parents lived, her physical description including build, hair and eye colour and tattoos, and the clear identity of the author who wrote in the first person without a pseudonym and was known to have lived with the plaintiff, Judge Kanfei-Steinitz ruled that whether or not the work was categorized as fiction, there was a clear and compelling case that there was an invasion of privacy and that the balance between literary freedom and right of privacy justified preventing the book from being published.

In addition to ordering the books recalled, the court ordered that Ploni pay NIS 700,000 in damages for invasion of privacy according to the abstract (NIS 200,000 according to the end of the ruling – so the actual sum is unclear) and a further NIS 50,000 costs.

T.A. 3213/09 Plonit vs. Ploni and Almonit, Judge Gila Kanfei-Shteinitz, Jerusalem District Court, 11 October 2011.

COMMENT

The copyright issues in this squalid case are actually quite interesting since the author can claim a moral right to his work, in addition to freedom of expression. Nevertheless, I think this judgement was correct to focus on the privacy issues.

One wonders how much the good name of a known adulteress and family breaker is actually worth. then again, I don’t know whether the damages awarded were NIS 200,000 which seems rather low and NIS 700,000 which seems a little high. I concur with the judge that the plaintiff is entitled to prevent her ex-partner from publishing intimate details of their relationship in the guise of fiction. Sadly, I suspect that the nearly a thousand copies sold before the recall and following excerpts published in the weekend papers and described in television interviews, were no doubt largely snapped up by acquaintances of the litigants.

The decision is a good one, and seems very thorough and well-reasoned.

As to the public interest, a distinction should be made between what the public is interested in knowing and what is fairly considered as public interest.

Ayn Rand: “The idea that ‘the public interest‘ supersedes private interests and rights can have but one meaning: that the interests and rights of some individuals take precedence over the interests and rights of others.“

James Wilson: In the long run, the public interest depends on private virtue.

 

2 Comments | book review, Copyright, Israel, Israel Copyright, Israel Court Ruling, Uncategorized | Permalink
Posted by Dr Michael Factor

Israel Judge Refuses Class Action Against Google Books

November 29, 2011

Google Books scans books and stores a searchable electronic copy on Internet accessible servers, making a short extract of 2-3 lines available to searchers, together with name of author, title, publisher and year of publication.

If the authors consent to take part in the project, the can allow a larger extract t be available and in return, a link to online suppliers of the book is provided.

Jonathan Bruner, the author of “What you see from there” filed a Class Action against Google Books, on behalf of Israeli Authors whose copyright was he considers infringed by this.

In her ruling, Judge Tamar Bazak Rappoport refused to allow this to be considered a Class Action. She considers the Law of Class Actions to restrict the procedure to trade related disputes where a supplier or vendor provides a service to a large group of people. In the current instance, this is not the scenario. Google considers the authors who work with them as partners. That as may be, those who do not join the program are not clients or customers.

Regardless of whether there is a case of Unjust Enrichment or Copyright infringement resulting from Google’s activity, following the Israel Supreme Court Precedent 3126/00 State of Israel vs. E.Sh.T. Project Management and Personnel LTD, 2003, the instances where a Class Action is appropriate is limited to vendor-customer type cases.

She threw out the request for the case to be considered a Class Action and ruled NIS 10,000 to Google.

Class Action Ruling11319-04-11 : Bruner vs. Google Inc., 23 November 2011, Judge Tamar Bazak Rappoport

5 Comments | Class Action, infringement, Intellectual Property, Internet, Israel, Israel Copyright, Israel Court Ruling, Israel IP | Permalink
Posted by Dr Michael Factor

Can one have IP rights such as copyright in a syllabus?

November 13, 2011

“It's fun to charter an accountant, and sail the wide accountant sea!”

The Israel courts recently had to address the issue of IP rights in a syllabus.

Ms Orli Tal claimed to have created a pedagogic program for teaching 4th year accountancy that she alleged was purloined by the Israel Open University, and sued the university, the Head of the MBA program and various other staff members for NIS 3,172,000.

Ms Tal is a lawyer and accountant who teaches tax law and accountancy.  At the time relevant to her filing suit, she worked for the Legal Dept. of the Israel Tax Office.

Apparently, a degree course in accountancy in Israel is a 3 year program, after which, students can study a fourth year whilst obtaining work experience as a trainee accountant.

At a private function, Ms Tal set up a meeting with the director of the Open University to discuss her study program. She subsequently met the other directors and there was an exchange of study materials, followed by a couple more meetings, and a verbal declaration to get married, understood to mean that the sides would work together.

However, the collaboration didn’t last and Ms Tal sued, claiming that her program was being used without accreditation and in contravention of her rights.

The grounds for legal recompense include:

  • Unjust Enrichment
  • breach of entrepreneurial Trust
  • Breach of Statutory Obligation
  • Breach of Contract
  • Malpractice
  • Acting in Gross Bad Faith
  • Theft of Trade Secret
  • Passing off
  • Physical and Moral Copyright Infringement

The university claims to have been working on a fourth year syllabus prior to the sides meeting, and claims to have met with the Accountant’s Guild some five months prior to the first meeting between Ms Tal and the director of the Open University. The university met with Ms Tal to assess whether she could be incorporated into the program as a lecturer, since she had relevant experience, but due to the differences between her expectations and theirs, no deal was reached. They deny acting in bad faith.

Since the program Ms Tal suggested was built on the elements of low registration fee and a mixture of remote learning and frontal teaching, according to the university, there was nothing new in the approach when compared to what the Open University traditionally did, and therefore there was no trade secret, nor any other IP rights in her program.

According to the defendants, Ms Tal neither proved that her hourly charge of $200 was accepted by them, nor that she had spent the number of hours she claimed to have put into developing her program. They dismissed the alleged damages of NIS 3,172,000 as grossly inflated.

Finally, since the individuals named in the statement of case where working for the Open University and acted in official capacities, they alleged that their being named as co-defendants was inappropriate.

In analyzing the case, Judge Shaul Meinheim considered each legal grounds separately.

COPYRIGHT – noting that the plaintiff had referred to her idea as a pedagogic model and as an idea, Judge Meinheim noted that the first wasn’t a known copyright category and didn’t fit easily into any of the categories. He went on to note that section 5 of the copyright ordinance states quite clearly that there is no copyright in ideas per se. Finding that the model wasn’t fixed in a medium on plaintiff’s testimony, he dismissed the charges. He noted that even if Ms Tal indeed spent 1500 hours researching the program, there was no program presented that could be considered as being a creation protected by copyright.

TRADE SECRET – Judge Meinheim was unable to isolate the alleged trade secret that was the property of Ms Tal prior to being stolen by the university, and therefore dismissed the charges.

BREACH OF CONTRACT – The only document produced was a personal memo by the plaintiff of what was discussed at the first meeting. Judge Meinheim dismissed this as insufficient to indicate that the sides had reached a binding contractual arrangement.

BAD FAITH – It appears that the university negotiated with the plaintiff and no agreement was reached. This is not indicative of bad faith.

UNJUST ENRICHMENT – No evidence was produced that the University made profit from Ms Tal’s ideas.

ADDITIONAL DEFENDANTS – Here again, the judge could see no justification for the various personnel affiliated with he university to be included in the case.

DAMAGES – Even were he to have accepted legitimate grounds for compensation, the sums claimed were considered grossly exaggerated.

The charges were dismissed and costs of NIS 200,000 were awarded against the plaintiff.

T.A. 4130-10-07 Tal vs. Open University and Others., 11 October 2011 Tel Aviv District  Court, Judge Haim Meinheim.

COMMENT

In a recent article I discussed a conference hosted by WIPO and ONO on traditional knowledge. When the idea first came up, Dr Shlomit Yanitzky Ravid who was on sabbatical, invited me to collaborate on the program, expecting this to help create a rigorous conference that would attract the profession.

Although not being particularly positive regarding traditional knowledge, I spent about a week making inquiries and putting together ideas which were presented to ONO and WIPO.

WIPO have strict rules on working with the private sector and they decided that JMB, Factor & Co. couldn’t co-host, nor could I present a lecture.  We decided not to spend any more time on the program and cut our losses. The program that eventually took place did have several elements that I can take credit for, and Dr Shlomit Yanitzky Ravid actually acknowledged the fact on the second day to the participants.

I imagine that Ms Tal had some legitimate grievances and from her perspective, and no doubt she felt that her ideas were being misappropriated. I can understand how Ms Tal felt. Nevertheless, going to court is not generally a solution. As a lawyer she should have known that she had a very weak case and little evidence. I suspect that this decision won’t do her teaching career any good, and will close doors and burn bridges.

One wonders why the lawyer representing her, Calderon, a well-known IP practitioner, took the case.

2 Comments | Academia, Intellectual Property, Israel Court Ruling, Israel IP, Uncategorized | Permalink
Posted by Dr Michael Factor

Copyright in Photographs from Old Newspapers Shown in History Programs

October 30, 2011

Shmuel Rachmani is a photographer who was affiliated with the Ma’ariv newspaper. Some of the time he was a freelance photographer and some of the time he was an employee. Rachmani’s contract with Ma’ariv left the copyright in all the photos with him.

In a documentary series called “This week previously,” The Israel News Company Ltd. related to important events that had occurred in the same seven-day period in previous years. Included in their coverage were images from the archives of the Ma’ariv newspaper at Bet Ariela.

Rachmani claimed copyright in 11 such images, of which 10 credited the archives rather than him.

The TV channel claimed the defences of no copyright in images of events,  and that where a newspaper has cropped an image, the copyright is lost. They also claimed defences of fair use, education and newspaper exception and incidental inclusion of the images in the program.

Judge Arnon Darel dismissed the claim of no copyright outright, and also the cropped image argument.

Having established that there was copyright in the image, Judge Darel would have contemplated the various fair use arguments if the identity of the photographer had been acknowledged, thereby preserving his moral right, but ruled that the channel could and should have clarified and acknowledged the identity of the photographer. Since they didn’t he ruled 7 separate counts of copyright infringement, ruling NIS 15,000 a time, as a compromise between the minimum and maximum statutory damages under the old law, and a further NIS 20,000 for moral rights.

The 7 counts were arrived at by dismissing one case where the identity of the photographer was acknowledged and treating two cases where more than one photograph of the same event was shown as being single infringements.

He went on to rule NIS 25,000 legal costs.

The Case: T.A. 7036/09 Rachmani vs. The News Company LTD., Judge Arnon Darel, Jerusalem Magistrate’s Court, 9 October 2011.

Leave a Comment » | Copyright, Intellectual Property, Israel, Israel Copyright, Israel Court Ruling | Permalink
Posted by Dr Michael Factor

Health Club Wars

October 30, 2011

Hadas Guvrin is a former aerobics champion and trainer of physical trainers. Now having reached the age of 40 she runs a couple of fitness clubs called PhysiKal (Kal mean easy in Hebrew) in the Hod Hasharon and Ramat Gan regions. The clubs have some 30,000 members.

A second fitness club called Switch, based in Netanya used her picture to promote their club. The photo was run in 4 or 5 editions of the local paper and one street hoarding.  Guvrin and PhysiKal sent a cease and desist letter and requested that Switch stopped using the picture and pay NIS 590,000 damages.

Switch took the picture down immediately and agreed to pay statutory damages of NIS 20,000 for copyright infringement.

A year later, Guvrin and PhysiKal sued Switch and owners Shermeister and Frankel for copyright infringement, moral rights infringement,  unjust enrichment, passing off, and damage to Guvrin’s privacy. They also requested a public apology from the defendants and an injunction against further usage of the picture.

Judge Amiram Binyamini accepted that there was copyright infringement, but ruled that the advertising campaign should be considered as a single incident and awarded maximum statutory damages of NIS 20,000 under the Old Law (pre 2007). He accepted that the copyright in the picture was indeed owned by the client, i.e. the fitness club, but ruled that the moral rights were owned by photographer who wasn’t a plaintiff, therefore dismissed the moral rights claim.

As to the tort of Passing Off, although damages of up to NIS 100,000 could be awarded, Judge Binyamini ruled that the plaintiff was entitled to damages under either Copyright Infringement or Passing Off, but not both. In view of the short time period that the campaign ran and the different geographical location of the two clubs,  he saw no reason to increase the damages for Passing Off beyond the NIS 20,000 already awarded for Copyright Infringement.

As to Unjust Enrichment, Binyamini ruled that the plaintiffs had failed to show that the defendants had attracted members as a result of the activity. At best, they had saved themselves the cost of a stock photo under terms of non-exclusive use, which was a saving of perhaps tens of dollars, and thus negligible in light of the NIS 20,000 already awarded.

Since Hadas Guvrin had used her picture to promote fitness clubs herself, privacy wasn’t an issue either.

As four years had passed since the infringement, Judge Binyamini declined to order a public apology. He also felt the permanent injunction was unneccessary since the defendants had stopped using the picture immediately, and considered it requested merely to send the case to the District Court, but saw no reason not to issue it.

He noted that the defendants had offered NIS 20,000 at the outset, and taken down the picture immediately, so there was really no reason for the case to go to court. Furthermore, the defendants had offered to allow the case to be decided under Section 79a of the civil procedures, without evidence being heard, but the plaintiffs had insisted otherwise. Nevertheless, since the defendants had offered some fairly ridiculous defences as to why there was no copyright infringement and had insulted Ms Guvrin in one of the newspapers, he awarded a further NIS 10,000 legal fees.

the case: T. A. 1637/08 Hadas Guvrin and PhysiKal Events LTD. vs. Switch Fitness Club, Roei Shreimester and Israel Frankel before Judge Dr Amiram Binyamini, Tel Aviv District Court, 9 October 2011.

COMMENT

This seems to be a balanced ruling and Judge Binyamini is correct, the case was a waste of the court’s time. With a lot of daily commuters from Netanya to Ramat Gan, I am not convinced that the different geographical locations is important, but the judge is correct, that there was no evidence of actual damage.

Leave a Comment » | Copyright, Intellectual Property, Israel, Israel Copyright, Israel Court Ruling, Israel IP, passing off | Tagged: | Permalink
Posted by Dr Michael Factor

Israel Supreme Court Reverses Eve – Eva Trademark Decision

October 10, 2011

Back in May 2010, we reported that the then Deputy Commissioner of Patents and Trademarks, Noah Shalev Shlomovits ruled that the Aktsionerno Droujestvo Bulgartabac Holding’s  cigarette brand Eva was not confusingly similar to the Philip Morris brand Eve. See  here  for more details.

Essentially, Shlomovits ruled that the fact that the marks had different graphical elements was less important than the sound of the mark since cigarettes are bought by requesting a brand from a salesperson.  He went on to rule that since the Bulgartabac Holdings cigarette was pronounced Eva (rhyming with Never), it was very different from Eve (rhyming with weave). I was less than confused, as I would typically pronounce Eva as EEva rhyming with Beaver. I did a small survey of IP professionals and others, and am certainly not the only one to pronounce the name differently than Shmulovitz.

Anyway, Philip Morris wasn’t happy either and appealed the decision to the Supreme Court.

Counsel for Philip Morris claimed that the name Eve would be pronounced EEV in the UK, EV in France, and Eva or Yeva in  Russia. Also, cigarettes are sometimes purchased from vending machines so placing all the evidence on the sound of the name exaggerated the audible aspects of the name.

In their defense, Bulgartabac Holdings relied on Shmulovitz’ ruling and also pointed out that the name is not Eva, but rather an ‘E’ followed by a heart followed by an ‘a’  and should not necessary be assumed as being a ‘v’, although they admitted that the cigarettes are sometimes labelled Eva in Hungary. Whilst acknowledging that both cigarettes were aimed at female smokers, Bulgartabac Holdings argued that the price difference to indicate that the Philip Morris cigarette was aimed at connoisseur market, whereas their fag was more aimed at the mass market. Because both cigarettes were somewhat established, even were it argued that there was perhaps a possibility of confusion once upon a time, this was certainly no longer the case.

Somewhat refreshingly, the Israel Supreme Court quoted Maimonides, acquisition, Laws of Sale 18: 1, that passing off is forbidden, and went on to refer (perhaps somewhat irrelevantly to a responsa of Rabbi Moshe Isserles (the Rema) concerning an Edition of the Maimonides Code published by MaHaRam Padua, and also to Talmud Babli, Baba Batra 21:2, all quoted by Rabbi Navon in his article Copyright in Jewish Law, Tsohar 7:35.

Then the decision related to Article 11 of the Trademark Ordinance 1972, to prevent confusingly similar marks from issuing.  After acknowledging that an appeal is not supposed to be a retrial, the judges noted that in this case, it is not witnesses that are being reconsidered but the nature of objects. They went on to point out that analyzing the likelihood of confusion by a pedestrian application of the triple test was insufficient, and that as well as analysis, one should synthesize the evidence and come to a decision based on the total picture. With this perspective, the judges ruled that the marks were indeed confusingly similar and overturned the deputy commissioner’s ruling, preventing the marks from issuing.

The upshot of this is that Aktsionerno Droujestvo Bulgartabac Holding’s Eva brand was not allowed to be registered, and legal costs of NIS 45,000 (more than $12,000) were awarded.

Civil Appeal 3975/10 Philip Morris Products S.A. vs. Akisionerno Droujestvo, Supreme Court (Judges Handel, Hayot and Amit) 2 October 2011.

COMMENT

I am very pleased with this decision, not least becuase the judges ruled in accordance with my comments last year! We hope that more weight will be given to common sense in the ‘any other considerations’ strand of the triple test. We also applaud the reference to Jewish Civil Law in the Supreme Court decision.

Leave a Comment » | Fair Use, infringement, Israel Court Ruling, trademarks, Uncategorized | Permalink
Posted by Dr Michael Factor

Cheap Versions of Bakugan Game Imported From Far East

October 10, 2011

Spinmaster have a popular game called Bakugan that is apparently not just popular with the kids, but also with importers and judges – see here and here.

The authorized distributors and trademark rights holders have been back in court. This time against a Mr Chai Omra who imported some 40,512 sets of Bakugan from China. The sets were impounded by Customs and the rights owner sued for their destruction and NIS 100,000 for copyright infringement. He also claimed trademark infringement, passing off and unjust enrichment.

Mr Omra claimed that these were legitimate sets and was parallel importing, so there was no copyright infringement or at least that he had a defense of not knowing that these were not authorized sets.

The rights owner noted that the ball was a different size, that there were Chinese instruction cards in the box, which are not provided in original sets intended for the Western market, and the bar codes were wrong, thereby proving that the sets did not originate with an authorized manufacturer.

In his ruling, Judge Zerankin dismissed the ignorance defense, noting that Omra had bee in court before for importing toys manufactured in the Far East, and had previously shipped 15,000 Bakuga sets as well.

The Judge ruled to rule NIS 20,000 for trademark infringement, NIS 40,000 for copyright infringement and NIS 40,000 for passing off. As there was no enrichment from this shipment, he rejected the unjust enrichment claim. In addition, he ruled a further NIS 40,000 legal fees.

The Case:  T.A. 43006-08/10 Spinmaster vs. Hai Omra LTD and Israel Customs Authority,  Judge Adi Zerankin, Haifa District Court, 22 September 2011

COMMENT

The applicant requested statutory damages of NIS 100,000 for copyright infringement. Importing copyright material is indeed copyright infringement. He is entitled to statutory damages for passing off or for copyright infringement, but I don’t believe is entitled to additive statutory damages for both. Once the total damage is NIS 100,000, it hardly matters. Still I would have expected damages of NIS 100,000 for copyright infringement and NIS 100,000 for passing off, then capped at NIS 100,000 as one cannot receive more than NIS 100,000 for a single infringing event.

I am also not sure where the statutory damages for trademark infringement come from.

Leave a Comment » | Copyright, infringement, Intellectual Property, Israel, Israel Copyright, Israel Court Ruling, Israel Trademark, trademarks | Permalink
Posted by Dr Michael Factor

Copyright in photographic images reproduced on websites – fair use

October 6, 2011

Roman Kriman is an accomplished photographer with some 5000 images on the Jerusalem Shot website here.

Newsru is a Russian language news portal that is apparently the most popular Russian news website in Israel. The website is to be found here.

Kriman’s site indicates that his images may be used free of charge, but that the photographer must be acknowledged and a link from the picture is required to lead to the Jerusalem shot website.

Kriman sued Newsru for copyright infringement for failing to comply with the licensing conditions. Kriman requested 200,000 Shekels.

I assume the sum sued for covers both statutory damages for copyright infringement and for moral rights infringement. It is not clear if this is for multiple statutory damages under the old law or for a single offence under the new copyright law, but the ruling does relate to some dozen cases and applies the old copyright law despite apparently being filed in 2010 and relating to recent events.

That as may be, in her ruling Judge Chana Yinon of the Jerusalem Magistrate’s Court applied the old copyright law, accepted that there is copyright in original photographic images but was satisfied that the defendant attempted to comply with the licensing terms by crediting images in a page of credits, and that clicking on an image opened a hyperlink to source information. She considered the licensing terms sufficiently unclear that she found this practice a genuine attempt to comply.

Where images were wrongfully attributed to sources from which Newru had obtained them, but not to the photographer, she found Newsru not at fault. In this regard, during cross-examination, Kriman indicated that in his opinion it was wrong to reproduce an image without knowing and attributing the original source, whereas the judge preferred the defendant’s understanding that third parties can reproduce an unattributed image.

Somewhat confusingly, Judge Yinon cited Civil Appeal 2312/02 Druk vs. Danziger and also Tony Greenman’s work, Copyright in the Digital Age, to indicate that it is not enough to not know who the rights owner is, if the defendant has reason to believe that there is copyright in an image.

Deciding that there was no damage, the case was dismissed.

T.A. 10587-01-10 Roman Kriman vs. Newsru LTD. before Judge Chana Yinon, 12 September 2011

COMMENTS

I think Newsru’s behavior appears to be within the ambit of fair use. There is a problem though. Any photographic image of an identifiable person or scene or that shows clothes or cars or other items that clearly date the picture within the past 50 years, or indeed any colour photographic image is copyright protected unless the photographer actively puts it in the public domain. However, in such circumstances it is impossible to identify the rights owner. Internet sites, particularly non-commercial ones should be able to use images for illustrative purposes, acknowledging the rights owner if they know it, and certainly should not remove copyright notices. Where an image is not protected with a watermark or similar, one often cannot tell who owns the copyright and the image is therefore effectively in the public domain. I don’t think it is reasonable to prevent reproduction under such circumstances.

It seems to me that correct policy is to allow non-commercial websites to reproduce such content but to require them to take down the images if requested to do so. giving statutory damages without proof of damage seems unreasonable.

Nevertheless, the judge cites case-law and an Israel authority to the effect that one may have grounds to assume that an image is copyright protected even where the owner is not identified. It seems to me that any colour photo must be copyright protected since the law does not require a copyright notice. But this is not in the public interest. It does not serve the photographer or the wider public.  The boundaries of fair use are not clear.

I’ve discussed my use of images on this blog with world leading IP experts who concur that it is fair use. Is someone with a claim to copyright in an image requests that I remove a photograph or other image, I will do so immediately. Eventually technology may result in images being readily traceable so permission from the rights holder can be requested. We are not there yet. Copyright Law does seem to need an overhaul.

Leave a Comment » | Copyright, Intellectual Property, Internet, Israel, Israel Copyright, Israel Court Ruling, Israel IP, Uncategorized | Permalink
Posted by Dr Michael Factor

Contributory Copyright Infringment Can Be Passive

September 14, 2011

As reported in http://blog.ipfactor.co.il/2011/07/04/contributory-copyright-infringement-in-israel/, Israel’s Supreme Court has upheld a judicial tort of contributory copyright infringement, finding Israel’s Labour Party guilty for activities performed to attract students to affiliated student associations. However, the Supreme Court did not find the Hebrew University responsible for infringing copies of textbooks sold by student societies.  Shocken, the publisher, appealed this decision and requested a Further Hearing.

The President of the Supreme Court, Beinish, rejected the request for a further hearing. Contrary to Shocken’s understanding she considers that the ruling does not rule out claiming damages for contributory infringement by failing to act, but that in the circumstances, the Hebrew University’s failure to police copyright on campus did not amount to copyright infringement.

D.N.A. 5004/11 Shocken House Book Publishers vs. The Hebrew University, The Israel Labour Party and Yaakov Cohen

COMMENT

I am a little scared by the concept of contributory copyright infringement by failing to act to prevent infringement. No doubt time will teach when this is to be applied. I do think it is a good thing that universities are not expected to actively police photocopying machines, and to review what is sold in all clubs and societies on campus.

1 Comment | Academia, Copyright, infringement, Intellectual Property, Israel, Israel Copyright, Israel Court Ruling | Permalink
Posted by Dr Michael Factor

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