Datafax LTD accused the Institute of Certified Public Accountants in Israel (ICPAI) of copying 10 questions from their website and incorporating them in exam papers for testing trainees. Datafax sued for NIS 200,000 (almost $55,000) in damages.
The plaintiff manages an Internet site that provides information on employment law, workers rights, salaries, etc. They also publish a weekly newsletter.
The website is for subscribers only and permits fair personal, non commercial use.
The ICPAI is a voluntary body of licensed accountants that represents over 11,000 certified public accountants. Among their activities they provide regular professional training.
The ICPAI decided to run a training course and engaged an external adviser to prepare it.. The adviser subcontracted a tax consultant to draft questions. The tax consultant provided questions taken from nine different editions of Datafax’ weekly newsletters. The exam papers bore the copyright symbol.
When sued by Datafax for statutory damages of NIS 10,000-20,000 per copied question, the ICPAI presented a number of defenses including:
- Datafax did not prove the existence of the weekly publications that the alleged infringement copied.
- Exam questions are not literary works that are suitable candidates for copyright protection.
- The questions were not original or creative.
- The ICPAI was unaware of the infringement.
- The questions are covered by the fair use exception.
- Datafax’ non commercial use exception covered the ICPAI’s activities.
- Datafax wase guilty of inequitable behavior in asserting their copyrights.
- The ICPAI was not aware who copied from whom and suggested that Datafax copied from the person they hired to write the questions.
- Even if there was infringement, it should be considered as only one act.
Judge Chagai Brenner, who ruled on the case, considered that Datafax provided sufficient evidence that the questions appeared in their publication at a date prior to the exam, and that the tax consultant did not provide any evidence that he had created the questions himself at an earlier date.
The fact that the ICPAI attached a copyright symbol to the exam papers estoppeled it from claiming that copyright law did not apply.
As to the question of the number of infringements, Judge Brenner ruled that the single exam paper consisting of 10 questions taken from different editions of the same journal should be considered as one act of infringement. However, due to the fact that the questions were collected from different editions and that the ICPAI fought intensely rather than admitting their guilt, the infringement should be considered a serious one. Consequently, the Judge awarded the maximum statutory award of NIS 20,000 for copyright infringement, a further NIS 20,000 for ignoring the moral right of the company to be credited as the source of the questions, NIS 1,500 legal costs and NIS 20,000 + VAT lawyers’ fees.
T.A. 21685-07 Datafax LTD vs. the Institute of Certified Public Accountants in Israel