Burgerim is a chain of burger shops. Back in 2013, a Burgerim branch in Givatayim screened a football match that was part of the Euro-league on a regular television set that was connected to their Cable TV supplier HOT, and was sued for copyright infringement by Charlton who owns the transmission rights. Charlton claimed that the screening was a public performance, whereas the restaurant claimed that they simply switched on the television. Judge Ronen Ilan of the Tel-Aviv Jaffa Magistrate’s Court ruled that even if the match is copyright protected, allowing customers to watch a publicly-broadcast match is not a performance of the copyright-protected work, and ruled costs of 12000 Shekels against the plaintiff.
This is a summary of his arguments:
Is switching on a television receiver in a work-place, whilst a TV game is broadcast on a public channel, considered copyright infringement?
Apart from screening the match on a television set, without any additional equipment such as an amplifier, for example, the defendant did not do any action whatsoever. In these circumstances, one cannot accept the plaintiff’s claim of copyright infringement for two reasons:
Firstly, in these circumstances, where the game is screened on a television set, there is no ‘performance’ of the transmitted creation due to the minor involvement of the one setting up the TV and the received in passing on the transmission, the involvement being limited to setting up the TV receiver. Thus specifically, due to the change in legislation due to the introduction of the Israel Copyright Law 2007, which differentiates between “public performance” and transmission. Due to all these reasons, activating the television in order to watch the transmitted program is not a “performance” of the creation.
Secondly, even where one to accept the claim that screening a transmitted creation is a “performance” of the creation, one still could not see a copyright infringement in this instance, since we are dealing with a transmission of something on a public channel. The plaintiff did not show that the Law prohibits screening a public broadcast to the public. Activating the television receiver to the public so that they can watch the game that is being broadcast on a public channel is not copyright infringement of a transmitted creation.
Furthermore, even if we were to accept the plaintiff’s claim that their creation was infringed; in the specific circumstances of this instance, where we are dealing with the screening of something on a public channel, where there was no advanced warning of any possible copyright infringement, but against this there is an attempt to prevent screening of sports programs which may be damaging to the defendant, the defendant is entitled to the claim of innocent infringement.
Civil Ruling 271019-09-15 Charlton vs. Bowling World, Ruling by Judge Ronen Ilan, 6 August 2018
Israel has public television channels that can be received on a television set equipped with an aerial. In the past, one required a license, but even this formality is no longer the case with the disbanding of the former television authority and the establishment of the new one. Charlton holds the broadcasting rights for the Euroleague. The sports channel is a component of basic packages of “HOT” – the cable TV company, “YES” – the satellite TV company, and IDAN+ – the digital over-the-air option that gives you a small number of basic channels. All these are subscription services. No-one has a basic human right to access the sports channel but can purchase a subscription from a service provider.
Now there are sectors of the population, particularly the ultra-Orthodox, that do not have television. I know a number of people who are by no means ultra-Orthodox, but nevertheless have forgone having television, as they see it is a waste of time, and something that prevents their children from developing useful reading skills and the like. I also know many families that make do with the public stations and do not receive the sports channel. When there is a major sporting event such as the World Cup (Mondial), some of these people, including ultra-Orthodox youth, returnees to the faith, and others, go to pubs, pizza parlors and burger outlets to watch the match. There are also others that have access at home, but go as a group to such a place to cheer on their team.
Givatayim backs onto the ultra-Orthodox neighborhood of Bnei Brak where owning a television set is frowned upon. I suspect that this is why the Givatayim Burgerim branch chose to screen the football.
In Appeal 6407/01 Tele-Event vs. Golden Lines, 7 July 2002, the Supreme Court recognized that sports matches, though not scripted (at least not officially and legally scripted) were, nevertheless, entitled to copyright protection. This meant that the licensee with distribution rights in Israel could prevent the cable and satellite networks from transmitting broadcasts on foreign channels as part of their bundle.
Now when a match is screened by a food-outlet for their customers, it is part of the entertainment package. For similar reasons, for it to be improper for a hotel to connect TV receivers in every room to a single subscription but rather to require the hotel to obtain a commercial package, it makes perfect sense to prevent restaurants from screening matches without obtaining a special package to do so.
There is certainly a concept of de minimis fair use in copyright, and when a child of mine invites neighbors over to watch a match (or preferably goes to them), that is not copyright infringement, but a restaurant essentially rents chairs and tables. If it uses such screenings to attract punters, there is a good argument that they should pay to do so. It will be interesting to see if Charlton appeals this ruling, and whether it is reversed.