Numerology is any belief in the divine, mystical relationship between a number and one or more coinciding events. It is also the study of the numerical value of the letters in words, names and ideas. It is often associated with the paranormal, alongside astrology and similar divinatory arts.
In gamatriya, each letter of the Hebrew Alphabet is assigned a corresponding number. the first nine letters are numbered 1 to 9, and the next nine are assigned the numbers 10, 20, 30, etc. The final four letters are assigned the values 100, 200, 300, 400.
The word alphabet comes from the Greek Alpha Beta, and the word gamatriya comes from Gamma – t(h)reeya. That said, the Greek alphabet was based on the Hebrew and Phoenician precedents. The Latin letters were derived from the Greek ones.
The issue in question here, is whether copying sections of verbal lectures and publishing them in writing is considered copyright infringement.
In coming to their verdict, the Supreme Court has reviewed the differences between the onld and new, law, what fixation is required and in what circumstnaes a publisher or distributor can be considered as innocently infringing.
Sharon Ron is a numerology lecturer. In 2002 Ela Shonia attended his numerology course at the Association for Promoting Awareness in Haifa. At the lectures, handouts and exercises were distributed by Ron. In 2003, Shonia and a fellow student called Sarah Vakhnin attended private lessons given by Ron at his home in Kfar Sava.
In 2004, Shonia published a book titled “Numerology for the third millenium” which went to three editions, the last one in 2010. In 2010 Shonia published a second book titled Combined Numerology. Both books were published by Astrologue Publishing LTD.
Mishkal Publishing & Distribution LTD received the rights for both books in 2010, in a deal between Shonia, Astrologue and Mishkal dated 03/02/2010 [I am writing the date in numeric form as it may portend something – MF]. Ron sued Shonia, Astrologue and Mishkal in the Tel Aviv District Court in Appeal 8822/15, and counter Appeal 8822/15. [No doubt these file numbers have some mystical significance-MF].
On 20 March 2004 and on 3 February 2010, Shonia signed declarations with the two publishers, in which she affirmed that she owned the copyright in the books. Consequently, the District Court absolved Mishkal from all responsibility.
After the second book, Combined Numerology, was published, Ron learned that content from his lectures were included in the books. On examining them, he discovered that parts of the book were identical to his material which Shonia had never asked permission to include, and which were also unattributed.
Since Shonia had certified in 2004 that there was no infringement, and since this caused damage to Astralogue, they sued her as a third-party for any damages awarded against them. Mishkal also sued as third-party for similar reasons.
Shonia then counter-sued Ron for including her copyright materials from her books in his lectures.
The Court of First Instance
The Tel Aviv District Court accepted Ron’s assertion that his course which included handouts, examples and exercises, was an original creation that was protected by copyright law, and that his rights were infringed by the material included in Shonia’s books without his permission. Furthermore, by not acknowledging his authorship, Shonia also infringed his moral right of attribution.
The conclusion of the Tel Aviv District Court that Ron’s material was original and copyright protectable was based on lecture notes taken by Vakhnin and by Eli Adi who attended the course together with Shonia, on handouts that were included in their lecture notes, and on Vakhnin’s summary of the private lessons.
Their conclusion was based on a finding that Ron’s material was original and was fixed in a protectable form.
The District Court considered the material was original despite the fact that the numerology system itself was not Ron’s creation. It rejected Shonia’s claims that due to discrepancies in the student’s summaries, that their lecture notes were not credible evidence of the content of the lectures, and therefore could not be used as a basis for concluding that the content was original, due to the high level of similarity and to the explanations by the witnesses.
The District Court also concluded that the student summaries were sufficient to fix the lecture content as required by law, despite the lack of overheads, syllabus and lecturer’s summary.
The finding of infringement was based on a comparison between the students’ summaries of Ron’s course and quotes in the first book that was submitted in a table by Ron, and which showed “a similarity bordering on identical” between the works, particularly with regard to wording, specific examples and specific number combinations.
The court considered the similarity to be too close to be coincidental, and in the absence of Shonia bringing an alternative source for her content, they concluded copying. That said, the copied content was only about 20 pages, and was not a major part of Shonia’s book which ran to 575 pages [no doubt a very auspicious number – MF]. Nevertheless, they concluded that a significant part of Ron’s lectures were copied and thus Shonia was guilty of copyright infringement.
The District Court rejected Shonia’s claim that the book was written prior to meeting Ron and being exposed to his educational materials. She alleged to have shown drafts of the work-in-progress to Astralogue in 1993, 1995 and 1997. The 1993 version is lost in time. The 1995 and 1997 were submitted on compact discs to the Court and were found to be different from the final version printed. However, these were also found to have been reworked but, according to Shonia, no later than 1996. However, the book itself related to a star that was first documented in 2002 and to books that were themselves published after the year 2000.
Shonia herself taught in various frameworks, including the Association for Promoting Awareness in Haifa. Ron claimed that these lecture series infringed his copyright as well. The Court considered this allegation not proven, but did accept that Shonia used the lectures to sell her book.
Shonia tried to claim that Ron knew about her book but took 6 years to sue and thus had given up on his rights. The Court rejected this. There was some evidence that a student had informed him of the book’s existence back in 2004, but no evidence that he was aware of the similarities or had even examined it.
The District Court rejected Astrologue’s claims of innocent infringement, since Ron’s lawyer had warned them that, if they continue to distribute the book, they would be held responsible. Furthermore, Astrologue did not seem to make much of an effort to check that Shonia’s book was original. The District Court noted that:
Astrologue specialized in mystical knowledge which is a specialized and narrow field, and that Elisha (Elisha ben Mordechai), the CEO of Astrologue testified to familiarity with the literature in the field. When Shonia approached him with a 2000 page draft, he should have suspected and looked into whether the material was original.
Nevertheless, since Shonia had indemnified the publishing house for copyright infringement claims against them, the District Court found her responsible to compensate them for any losses.
As to Shonia’s counter-suit, the District Court threw it out as unfounded and without any evidence to support it, considering it as simply being a defence stick to the main case.
After detailing the various considerations based on law and precedent for determining compensation for copyright infringement, and after detailing the circumstances of the infringement and Shonia’s behaviour during the legal process, the District Court ruled that Shonia and the publishing house should pay Ron 40,000 Shekels for copyright infringement and a further 20,000 Shekels for infringement of his moral right of attribution. Furthermore, Shonia and the publishing house should pay 25,000 Shekels in legal costs to Ron, and Shonia should pay 15,000 Shekels costs to the publishing house.
The District Court ruled that there was no justification to issue the requested cessation order or to collect the unsold books due to the partial copying and the time that had passed. As to the request to provide Ron with evidence of sales and detailed accounting, the court ruled that Ron was not entitled to this, as the ruling was based on infringement without proof of damages.
Shonia’s claims relate to the factual conclusions reached by the Court of First Instance. She considers that the court erred in considering Ron’s lectures as a creation that was entitled to copyright protection, since Ron claimed throughout that it was a methodology that he had developed. Shonia considered that Ron failed to reveal the book on which his lectures was based. Shonia considered that the lecture notes taken by Eli and Sarah were not authentic, and in addition are insufficient to fix the lectures in a form that is copyright protectable and that they can be considered as being the creation of the students themselves. Shonia argued that the similarity between Ron’s lectures and her book arose from the terminology and mathematical equations that are common to the numerology literature. Furthermore, the percentage of the book found to infringe was minimal.
Shonia concluded by noting that Ron was tardy in suing, in that he knew of the book from as early as 2006.
Astrologue’s main claim was that they did not know and could not have known that Shonia’s book was based on Ron’s lectures, since Ron’s lectures were not published in a manner that was indexable. They alleged that prior to suing, Ron had not made his lecture content available to them so they could not ascertain the alleged similarity. They noted that in the extensive correspondence with Ron’s legal representative there was not a single journal paper or article appended that could be examined for similarity to Shonia’s book, and no examples from Shonia’s book were highlighted as copies from Ron’s lectures. Astrologue claimed that had Ron provided evidence they would have responded to his claims. Since he had failed to do so, and due to Shonia having indemnified them, they could not be expected to cease distribution simply on the basis of a claim.
Astrologue emphasized that they were careful to ascertain the copyright of books they were asked to publish and were continuously updating their records with respect to new publications. However, there was no way they could know about Ron’s creation since his lecture notes and exercise sheets were internal documents that were not formally published, and even had they undergone a rigorous search prior to publication of Shonia’s book, they would not have uncovered Ron’s work. Astrologue claimed that if Ron was indeed an expert Numerologist he should have been aware of Shonia’s book close to when it was first published. Since the Court had accepted that he was unaware of a published book, it should certainly accept that they were unaware of the content of an unpublished lecture series to which they had no access. Based on this, Astrologue concluded that the District Court had erred in finding them legally responsible and not innocent infringers.
Ron relied on the factual determination of the Court of First Instance, and on the fact that the Court of Appeal was not supposed to go into a determination of the facts, except in extreme circumstances, that is not the case here. Ron alleged that the Appeal was not based on law, but only on facts and so should be rejected.
As to Astrologue’s claims of being an innocent offender, Ron considered that this was something that Astrologue had failed to prove was the case. Ron alleged that the indirect infringer has a heavy burden of proof (that was not met) since they are responsible for more damage than the direct infringer and are the main beneficiary of the infringement.
The Normative Framework
Section 77 of the Law of Copyright 2007 states that this (new) law would apply to creations published six months after the law was published in the public record, i.e. from 25/5/2008 [A date of mystical significance -MF]. This law supersedes the 1911 Copyright Ordinance that was extended to the British Mandate in 1924, apart from sections 3b and 3e.
Section 78 of the Law states that the Law will apply to creations preceding the legislation of the Law, with some limitations. These include section 78b which states that the new law applies to works that predate it providing they were protected under the old law. Another important caveat is that the compensation for creations that are covered by the new law but which predate it, is to be determined in accordance with the old law. Consequently, for a copyright claim to succeed it is necessary to show that the work is protected by both the old and new laws – See Appeal 7996/11 Safecom ltd vs. Ofer Raviv, paragraph 35 of the ruling.
The work under focus in this discussion is Ron’s lectures which were created prior to 2002. It is therefore incumbent to examine whether they are protected by the old law and, if so, whether they are still protected by the new law. Once it is established that the lectures are considered as being copyright protectable creations, it is necessary to examine whether publication of Shonia’s books is considered as an infringing act of Ron’s copyright and moral rights under both the old and new laws. The relevant sections are now cited.
Section 1(1) of the old law recognized copyright as subsisting in “all original literary, dramatic, musical and artistic works”. The definitions of these terms in Section 15 of the old law do not include lectures, but case-law establishes that the list in Section 1 is not a closed list, and that so long as the lectures fulfill other requirements, copyright in lectures may be recognized, due to sections 1(2). 2(1)(v), 20 and 35(2). See 81117/03 Etan Inbar vs. Dr Asaf Yaakov, paragraph 9 16/1/06 (ruling by Miriam Naor).
The possibility of recognition of copyright in lectures is anchored in section 4(a)(1) of the new law, which is titled “Creations that Have Copyright” which teaches:
(a) Copyright shall subsist in the following works: (1) Original works which are literary works, artistic works,dramatic works or musical works, fixed in any form; (2) Sound recordings; provided that the aforesaid works fulfill one of the conditions set forth in section 8 or that copyright subsists in said works pursuant to Order in accordance with section 9. (b) With respect to sub-section (a), originality of a compilation means the originality in the selection and arrangement of the works or of the data embodied therein.
The term ‘literary work’ is defined in section 1 as follows:
“‘Literary work’ – including works expressed in writing, lectures, tables, compilations, and also computer programs.”
Consequently one can consider a lecture as being copyright protectable under both the old and new laws. However, it has to be both original and fixed.
The Originality is tested by two main tests. Toil and the Creativity. The toil requirement is that a minimum effort was extended in creating the work. the case-law establishes that the amount of time, effort, ability and knowledge required is minimal. As to creativity, one has to consider whether the work contributes to the social aims behind copyright law, where the emphasis is on the quality and nature of the investment rather than on quantity. See Civil Appeal 513/89 InterlegoA/S vs. Ein Line Bros p.d. 48(4) 133, 164 (1994), and Civil Appeal 8485/08 The FA Premier League Ltd vs the Authority for Sports Gambling, 14 March 2010.
The creativity requirement has been defined in a negative manner in that a creation does not have to be original (novel?) when compared to other creations; and a minimum amount of creativity, even lacking intrinsic value, is sufficient for copyright purposes. See Safecom paragraph 13, Interlego (the lego block case) page 173, and 2687/92 Geva vs. Walt Disney p.d. 48(1) 251, 257 (1993) (Donald Duck).
Both the investment and the creativity tests developed in the light of the originality requirement that was implicit in the 1911 Copyright Act that granted copyright for “every original literary, dramatic, musical and artistic work”. See Premier League paragraph 26.
The Israel case-law sees investment and the creativity as parallel requirements that are both needed. They cannot substitute for each other, so a great deal of effort cannot make up for a total lack of creativity, and nor can creativity without effort. In practice, the main requirement to be shown is creativity since minimal effort is typically easy to demonstrate.
The third requirement that more recently has been added to originality by case-law is the test of origin, under which “the origin of a work is the creator if it is not based on another creation” (Safecom, paragraph 12).
The requirement for fixation is also based on section 4(a)(1) of the Law, under which “a creation has to be fixed in some manner”. This requirement is also found in the old law in Section 35(1) with regards to Dramatic creations., under which “the expression of the creation has to be fixed in writing or some other manner”. With regard to this requirement it is ruled that:
The basis of the fixation requirement is a practical foundation: without a need to formally register copyright (unlike patents)the fixation enables certainly with regard to what the protected work is, and to prove its existence. See Civil Appeal 2173/94 Tele event vs. Golden Channels and Partners, p.d. 55 (5) 529, 347.
The issue that remains open is whether the old law required that copyright fixation was in writing, and that this is true for non-dramatical works. This issue was raised in re Inbar, but did not need ruling on, and we will get back to that.
Section 2(1) of the 1911 law states that:
(2) Copyright in a work shall be deemed to be infringed by any person who—
(a) sells or lets for hire, or by way of trade exposes or offers for sale or hire; or
(b) distributes either for the purposes of trade or to such an extent as to affect
prejudicially the owner of the copyright; or
(c) by way of trade exhibits in public; or
(d) imports for sale or hire into any part of His Majesty’s dominions to which this Act
extends, any work which to his knowledge infringes copyright or would infringe copyright if it had been made within the part of His Majesty’s dominions in or into which the sale or
hiring, exposure, offering for sale or hire, distribution, exhibition, or importation took place.
When Section 2(1) is applied to lectures, it gives the author of the lecture the sole right to publicise the lecture or significant part of it to the public. and if the lecture is not published, the lecturer has the sole right to publish the lecture or significant part of it to the public.
Section 1(3) of this law states that “publicising” the creation is “publishing copies to the public”.
As far as lectures are concerned, a similar arrangement is found in the new law, section 47 of which establishes that Copyright Infringement is doing one of the actions listed in Section 11, without permission of the rights holder, or one of the exceptions given there. Sections 11(1) and 11(2) state that the sole right to copy or publish a creation that has not yet been published, lies with the owner of the copyright of the creation. This means to say that copyright infringement of a work that is entitled to copyright protection under the Law, i.e. a creation included in section 5, that is original and fixed, will be considered as occurring if the work is copied or distributed without the copyright owner’s permission.
The copying of a protected creation is given in Civil Appeal 559/69 Almagor vs. Gudik, p.d. 24(1) 825 (1970):
To establish a case of copyright infringement, the plaintiff has to prove that the defendant copied “substantial and material” extracts from the plaintiff’s creation. In this regard, it is not the quantity that matters, but rather the quality of the sections that are copied…One can conclude that the defendant copied the plaintiff’s work if the defendant had access to the plaintiff’s work and where the similarity between the two works is such that it i s coincidental or due to another reason other than copying…The question of whether two creations are similar enough to show copying by the defendant is one of fact and degree, and the answer does not have to be based on slavish counting of similar words or lines in the cases, but on the Judge’s consideration of the works in their entirety. Almagor 829-830, Safecom paragraph 27.
Alongside copyright infringement as defined in Section 2(1) of the old law, as discussed above, Section 2(2) of the current law establishes that distributing for trade purposes will be considered copyright infringement., if done knowingly by the distributor. Thus the publisher and book stores are considered infringers if they distribute infringing copies whilst knowing that they are copies. Similarly Section 48(20 of the new law considers commercial distribution as infringing if the distributor is aware or should have known that the work infringes.
In addition to copyright infringement, the creator is entitled to recognition for his creation. This right is given in Section 4a of the Ordinance (see 2790/93 Robert E. Eisenman vs. Elishah Kimron, p/d/ 44 (3) 817, 840-841), and is anchored in Sections 45 and 46 of the new law. The moral right includes the right of recognition (attribution) and the right to prevent their creations being hacked about with. Someone who “performs an action that damages the moral rights” is considered as infringing under Section 50(a).
With regard to moral rights, the Law (Section 51(3) states that someone commercially distributing something without attribution is considered as indirectly infringing the moral rights.
Section 58 of the Law, titled “Innocent Infringement” limits the obligation of the infringer of copyright and moral rights to pay compensation in cases where the infringer did not and could not have known that the material was copyright protected. A similar law is found in Section 8 of the old law. That section emphasizes that if the infringer can show that he aw unaware that a work was copyright protected, the plaintiff is not entitled to any sanctions other than an order not to copy or that further copying is forbidden.
A review of the common Law shows that lectures before students are copyright protected under both the old and new laws. Similarly, the Similarly, publishing part or all of a lecture is copyright infringement of the creator under both old and new laws.
Application of the Law to the Present Case
We now examine if in the present circumstances, Ron’s lectures are considered as copyright protected, and if so, if Shonia’s book infringes this copyright. This is done separately for each Appeal; Shonia’s appeal that there is no infringement, and Astrologue’s appeal that their infringement was innocent.
The Court of Appeal accepts the Court of First Instance’s findings that Ron’s lectures provide the moral right of attribution and copyright, and Shonia’s publication infringes both. The Court of First Instance accepted the students’ summaries as reliable evidence regarding the content of the lectures. The Court of Appeal accepts the Court of First Instance’s findings. The Court of First Instance stated:
After careful examination of the notebooks and in the absence of contravening evidence, we find that the plaintiff’s work is original, both in terms of its order and idue to the examples that plaintiff used in his lectures, and in his wording used to present the material. These are apparently original and have a personal stamp, and there is no evidence that they themselves were copied.
Similarly this finding, which fulfills the requirement for originality based in its tests, is not something that the Court of Appeal finds appropriate to disagree with. Shonia argued before the Court of First Instance that the connections between the human body and numerological calculations, and other elements in Ron’s lectures, were not original creations. However, as recorded in the ruling by the Court of First Instance, Shonia did not provide any earlier source for Ron’s educational material. Additionally, the creativity requirement does not need a work to be original when compared to earlier work, and it is sufficient if it is rearranged and reedited. In this regard, contrary to that claimed by the Appellant, there is no relevance to whether Ron’s ‘system’ is original or that Ron failed to produce the books on which his lecture was based, since the creation that was infringed, as claimed in the corrected statement of case, is the lectures and not a book that he wrote or a system that he developed.
As to the requirement for fixing, the Court of First Instance determined that the student notebooks of three students was sufficient to fix the content of the lectures and so this fixing requirement was fulfilled. The Court of First Instance referred to re Inbar which related to a similar matter, where a lecturer of a course in Torts at an Academic Center sued the author and publishers of a book titled “Torts in Legislation and Case-Law”. The plaintiff alleged that the author had attended his lectures as a student, copied his lectures and infringed his copyright. The Court found that the lectures were fixed in three ways:
- slides that were used and distributed to the students
- The notes used by the lecturer himself, and
- students summaries of the course material.
By comparing to the means of fixing the subject matter in re Inbar with those in the present case, the Court fo First Instance considered that Ron’s evidence, which only included student summaries, was lacking but nevertheless sufficient to fix the content of the lecture, due to the similarity between the three sets of student summaries.
This finding of the Court of First Instance is also acceptable to the Court of Appeal. When looking at whether an oral lecture is fixed, the Court has to consider whether substantively the evidence provides a reliable indication of the content of the lectures. Here the quality and nature of the evidence has to be emphasized, and not just their quantity. When the Court of First Instance concluded that the student summaries reflected the content of the lectures, they were sufficient to serve as a fixing of the content of the lectures for copyright purposes. It should be noted that in re Inbar, the student summaries were not submitted to the court as their existence was not questioned. Rather, the lecturers preparatory notes and slides were submitted and despite these not accurately reflecting all that was said, were considered sufficient to establish copyright.
The similarity between the summaries of the different students undermines Shonia’s claims that they are the creations of the students and not of the lecturer.
Having determined that Ron’s lectures are creations and are fixed in the sense required by Section 4(a)(1) of the Law, which were also a feature of the previous law, the lectures are considered as copyright protected works. It now remains to determine whether or not Shonia infringed this copyright.
The Court of First Instance found that Shonia has taken significant material from Ron’s lectures. Shonia did not deny this. She had access to the lectures and the similarities speak for themselves. This is the first test established in Almagor.
Judge Elron reviewed the table appended to Ron’s Affidavit, the one appended to Shonia’s affidavit and those that the Court of First Instance prepared. He concurred with the Court of First Instance that there was a similarity bordering on being identical, between Shonia’s books and parts of Ron’s lecture series. The summation of the specific examples and calculations done by the Court of First Instance of examples that Shonia chose to include from the infinite possible examples that could have been used, makes the likelihood of the similarity being a chance occurence, very unlikely, and not reasonable. This fulfills the second test established in re Almagor.
In this context I note that Shonia’s claim, that the Court of First Instance ignored the table she appended to her affidavit does not help her. Unlike Shonia’s claim, the table actually supports the conclusion that there is a lot of similarity between Ron’s lectures and Shonia’s book.
In light of this, Judge Elron did not find it appropriate to interfere with the finding of the Court of First Instance, that determined from a general overview of the lectures as evidenced by the student notes and of the book, that Shonia copied sections of thelecturesinto he r book, thereby infringing Ron’s rights.
Shonia did not accredit these sections to Ron in her book and didn’t mention him at all, and thus infringed his right of attribution under Section 4a of the Ordinance and Section 45-46 of the new law.
Shonia’s also claimed that there was no substantive similarity between her book and the lectures, and whatever similarity there was was due to the vocabulary of numerology. This claim was not substantiated in any way and so is not accepted. Furthermore, careful examination of the point of similarity, as detailed by the Court of First Instance, show that the similarity is not so much in terms but in numerical examples that are identical in the two works.
As to Shonia’s claim that Ron copied her book, this does not fit with her earlier claim that the two works are different and thus weakens her argument. the Court of First Instance threw out this argument, since it was not shown that the alleged 1995 and 1997 drafts of her book supplied on disk was actually written prior to his lectures. Judge Elron accepts this finding.
Shonia also claimed that Ron’s witness in the Court of First Instance was not actually an expert witness, and his views regarding subsequent alterations to the contents of the disks could not be accepted. At the same time, Shonia claimed that the witnesses findings regarding disks 1-10, which she claimed was the basis of her book, should be accepted. It is obvious that these two claims are self-contradicting. Furthermore, where there is a suspicion that there was some manipulation of some of the disks, that was not challenged by the testimony of an expert witness supplied by Shonia, the reliability of the disks of earlier drafts is compromised.
On the basis of the above Judge Elorn considers that Shonia’s counter claims should be rejected.
Having ruled that Shonia’s book contains material copied from Ron’s lectures, Astrologue’s publication and distribution of the books infringes Ron’s copyright and moral right contrary to Sections 2(2) of the previous law, Section 4a of the Ordinance and Sections 48 and 51 of the new law.
The remaining issue is whether Astrologue is entitled to the defense of being an innocent infringer as found in Article 8 of the previous law and Article 58 of the new law. Judge Elron considers this to be the case.
There was some correspondence between the parties prior to the complaint being filed. What is relevant here is the correspondence between Ron and Astrologue, particularly as Ron does not claim that Astrologue are responsible from when they first published the book, but only from when they knew about the infringement. As detailed below, at no stage of the correspondence prior to suing, did Ron produce a transcript of his lectures or other supporting evidence.
On 13 October 2010, Ron’s representative approached Shonia, Astrologue, Yediot Sefarim (the distributor) and the association with claims that they infringed the methodology that Ron had developed, which he called “The Human Body Method – Known as the Psycho-Dynamic Numerology Process” [sounds very scientific doesn’t it? –MF]. In that first letter it was claimed that:
Many sections of the books are a comprehensive reproduction of the lecture…my client has good evidence and many examples that are acceptable in law, which support his claim. The scope of word for word copying is estimated at 50% of the pages of each book, and the copying that describes my clients’ ideas and explanation of known writings in numerology as 25% of each book. (paragraphs 20-21 of the letter).
With this, the letter did not identify any specific pages or paragraphs that Ron alleged were copied. From his lectures. As to Astrologue, Ron’s representative was correct to consider that they acted innocently and did not request any compensation. However, Ron’s representative demanded the publisher to cease distribution and to destroy the plates and files, and stocks of the book. The representative also demanded that Astrologue produce certified accountancy records of sales of the books and that failure to do so would be considered as infringement from the first sale.
In a second letter from 22 November 2010, Astrologue clarified their position which was that without producing a book or publication by Ron that supported his copyright infringement allegation, they could not accept his claim. Astrologue suggested that Ron a dn Shonia meet and clarify the issue, and to the extent that they be required to attend as a “listener only”, they would send a representative to such a meeting.
Such a meeting never took place since Shonia was not prepared to meet Ron, and Astrologue were not presented with any evidence of Ron’s copyright having been infringed. As Astrologue’s representative testified, and Ron’s representative did not dispute, in the telephone conversations between the parties prior to the complaint being filed, Astrologue did not receive any concrete evidence of the nature of the infringement. Judge Elron stressed that Adv. Bilchofsky testifying before the Court of First Instance that he had informed Astologue of the alleged infringement, but and hd warned them that if they did not cease to distribute the books, they could no longer claim innocent infringement., but that is insufficient.
The logical conclusion is that since Ron’s lecturers were only recorded in student’s lecture notes and were not published, Astrologue did not have any real way to verify their contents or to substantiate Ron’s allegations that Shonia had copied sections of his work in her book.
Judge Elron does not accept the findings of the Court of First Instance that Astrolgue had failed in their duty by not looking into the possibility that Shonia had copied Ron’s work, despite the field being narrow, and with Shonia having written more than 2000 pages. Even had Astrologue done a thorough investigation of all books and publications in the field (as they claimed to have), it is reasonable to assume that they would not have found mention of Ron’s lectures, which were not written up and published. In the rare example of a creation that is entitled to copyright protection, but is not published in a manner that is searchable, and when the copyright owner has not produced evidence of the alleged infringement, it is reasonable to consider the indirect infringer as being an innocent infringer as the term is defined in the law.
The case before us is a one that accords with the condition given in Section 58, that “The infringer did not and could not know at the time of the infringement, that there was copyright in the work”. Consequently, Astrologue are not required to pay compensation.
In his Statement of Case, Ron did not claim that Astrologue had infringed his rights from when the book was published, but only from when they were made aware of the infringement. However, one cannot conclude that Astrologue ever substantively knew of the infringement beyond allegations, prior to the Complaint being filed. Ron also did not request a temporary restraining order against Astrologue as he could have under Section 53 of the law, which allows cessation of distribution of the books. Consequently, even if one concludes that the publication of the book infringes Ron’s rights he is not entitled to compensation from Astrologue, from the time that the case was filed until today. Thus Judge Elron rejects the finding that Astrologue have to compensate Ron.
This finding forces the Appeal Court to recalculate the compensation that Ron is entitled to. The Court of First Instance ruled 60,000 Shekels from Astralogue and from Shonia, in compensation for infringing Ron’s copyright and moral right. Since it accepted the third-party indemnity suit from Astrologue against Shonia, it did not differentiate between the two. Judge Elron concludes that Shonia alone should compensate Ron 30,000 Shekels for copyright infringement and a further 15,000 for moral right infringement based on the considerations in paragraphs 45-47 of the ruling by the Court of First Instance.
The legal costs were also equally placed on Astrologue and Shonia, but this also took into account the rejection of Shonia’s counter-case against Ron, so Judge Elron leaves this as it is.
In summary, instead of 60,000 Shekels, Shonia is obliged to pay 45,000 Shekels for the infringement and in addition to the original 25,000 Shekels costs, a further 15,000 Shekels costs for the Appeal. However, Ron has to compensate Astrologue 15000 Shekels for their costs.
Judge Mazuz concurs.
In the circumstances, Judge Shoham agrees with his colleagues.
Appeals 8742/15 and 8822/15 Supreme Court Ruling in Shonia vs. Ron, of 3 December 2017
It seems to me that as with patents and designs, Copyright should require registration. That way if the author does not see fit to lodge his work in a searchable manner in a repository, he essentially gives up on his rights.Judge Shoham also concurs but noted that he did debate whether or not accept the Court of First Instance’s findings that Astrologue were responsible to a degree. He eventually concurred since Ron himself did not ask for a court order for Astrologue to stop selling the books, so he himself did not see them responsible.