"Do you know what copyright is?"
Translated from Hebrew by Norman Silbert
THIS IS usually my opening question to students at the start of a lecture on copyright. For the most part, the response is: “Of course. What then” I persist, “does copyright protect?” In order to pique their curiosity and clarify my question, I add: “The answer can be given in a single word. "The students’ responses flood the room. “The work,” says one. “Royalties, obviously, "says another with a confident smile. “Dead easy,” observes an information-systems manager from a start-up company, “the software. "For a few, long minutes, almost every conceivable answer is raised in passionate debate. Despite the wide range and creative nature of the responses, in most cases the fullest and most correct answer, the essential key to understanding copyright, is ignored. In this article I will briefly address the issue of copyright, its purpose, implementation, impact, and ramifications for both the copyright owner and for those seeking to use it. Hopefully once you have finished reading the article, most of you will be able to recognize whether a work is copyright protected and whether those rights belong to you or your employer. However, bear in mind that every case is unique and consult a lawyer who specializes in intellectual property law. Another point to remember before we start is that this article was originally written for a magazine called Z’man Digitali and that, taking into account the magazine’s readership, I focused on artistic creation, such as graphic design. However, the substance of the article still applies to other forms of creation such as music, poetry, sculpture, drawing, theater, video.
THE MONOPOLY OF COPYRIGHT
Copyright, one of the categories of intellectual property, includes patents, trademarks, designs, trade secrets and nurturers. In its unique way, copyright achieves the same purpose as its close relative, the protection of rights in an intangible asset. It is no secret that it is in the interest of the society we live in to prevent monopolism. This being the case, why then does society permit the protection of rights to an intangible asset, thereby effectively granting the owner of the asset a monopoly? The answer to this, although complex, riveting, and brimming with a range of theories going way back, will unfortunately not be provided in this article. However, in order to provide a better overview of the essence of copyright, I will briefly discuss the proper balance necessary between the interests of the copyright owner and those of the public. In very general terms, a monopoly or, in other words, the exclusive control granted to an individual entity in a specific area, exists when a single entity supplies most of the needs of a specific area and is able to control price and supply. This type of exclusivity could result in poor quality products or service and even bring about a substantive change in the cost to the public. A monopoly has long-term implications that may harm competition and significantly reduce the motivation of potential competitors. Reduced competitiveness could lead to deterioration and lack of innovation, while also dealing a fatal blow to market efficiency. The public interest is therefore best served by atomization, which provides all the benefits of an efficient market. This is achieved mainly through legislation and an extensive body of rigorously enforced court rulings. This being the case, why is it that intellectual property rights bestow a monopoly upon the owner of those rights? The answer lies in the manner in which intellectual property rights maintain the proper balance between the interests of all parties. As we will see later, copyright offers a limited monopoly and its purpose is to provide originators with the incentive to continue to create works and products that will diversify, enrich, and functionalize the market while continuing to protect the interests of the public. Money is usually the key incentive. This can only be achieved after clear, normative criteria have been established to regulate the use of the work.
Copyright constitutes a negative right that prevents the expropriation of the fruit of the originator’s labor. Only the copyright owner has the right to permit any form of use of his work, such as advertising, distributing, replicating, modifying, or reworking it. Therefore, the first question we must ask ourselves is: “How can we identify a copyright-protected work? " The answer is fairly simple. Copyright protects an “original expression.” This means that in any compilation including elements such as people, landscape, or a sporting activity, the actual elements of the compilation do not constitute an “expression.” At most, these elements characterize the concept behind the compilation. The result of actually putting the concept into practice - the expression of the originator who combines the elements in a unique manner - is what is protected by copyright.
The following formula makes it easier to identify the existence of copyright: Work = Expression + Original Expression < > Concept Original = Creativity = Lack of Replication In the past, copyright required a tangible representation of an original work: for example, music, a play, a book. Only tangible works were protected by copyright. Today, it is sufficient for a work to be perceived through one of the senses for it to enjoy copyright protection.
The Copyright Law of 1911
(yes, Israel’s legislation on copyright goes back almost 100 years) mentions four distinct categories of works: literature, drama, music, and art. However, over the years, court rulings determined that the list of works described in each of the four categories is unlimited. In order to maintain the proper balance between the copyright owner’s monopoly and the public interest, one of the limitations set is a lifespan for the copyright. This is defined as the lifespan of the originator plus an additional seventy years. In other words, the compilation of someone who died more than 70 years ago is no longer protected. In Israel, the originator is not obligated to register a right in order to enjoy copyright protection - unlike other rights such as patents, designs, and trademarks, which must be registered. Copyright becomes effective immediately the work is created. For example, immediately after I finished writing this article, it automatically became protected by copyright for the period of my life plus another seventy years. A work published in Israel is protected in Israel and abroad, and a work published abroad is protected in Israel as well. This is the case provided that the place of publication or use of the work is in a country that, together with Israel, is a signatory to an international convention regulating copyright.
The twin, albeit not identical, of copyright is the ethical right. The ethical right came into being concurrently with copyright and ensures the originator’s right for his name to appear on his work in a generally accepted manner and dimension. The ethical right also ensures the originator’s right for his work not to be distorted, harmed, or modified, and not to be subjected to any form of activity that may reduce its value, thereby offending the originator or damaging his reputation. An ethical right is not dependent on the material right of an author to a work and is retained even after the copyright, fully or partly, has been transferred to another. In other words, even if you transfer your copyright to a compilation to a company that commissioned it from you, your ethical right is unaffected, and you are entitled to have your name appear alongside the work. In Israel, an ethical right and copyright have the same lifespan.
COPYRIGHT AND THE ORIGINATOR
One of the important intellectual property issues often of concern to the originator is the question: “Who owns the copyright to a compilation of my creation?” The complete answer to this question depends on the circumstances, and each instance must be examined individually. However, in many cases ownership is clear. As mentioned in the section above entitled Copyright, the default owner of a copyright is the originator of the work. However, what happens when the originator creates a work that is commissioned by a customer or, alternatively, by the company in which the originator works as a salaried employee. The answer can be divided into several parts. When the originator works as a freelancer, and the agreement between the originator and the customer makes no other provision, the originator owns the copyright even if he has received payment for the work from the customer. When the originator is a salaried employee and the agreement between the employee and the employer makes no other provision, the employer owns the copyright. In any event, the originator always retains an ethical right, even though he may not own the copyright. I therefore recommend that this issue never be left open-ended and that ownership of copyright always be defined. I have a short anecdote for the photographers among us. It occurred in Civil Case 190227/02 (Tel Aviv Magistrates Court), Gordon Florists Ltd. vs Kfar Rut Florists Ltd. The case dealt with the infringement of copyright to a photograph of a flower arrangement which was copied from the plaintiff’s Internet site and displayed on the defendant’s Internet site. The court ruled that although the photograph was taken using a digital camera, the law must be interpreted as equating an initial digital file recorded on any form of digital media with a photograph negative.
It is not enough for the copyright owner to be aware that he has copyright and that no other person has the right to make use of his work without his consent. Experience has taught us that prohibition has never prevented infringement. The copyright owner must, therefore, always be ready to enforce his right whenever an infringement is apparent. To properly prepare for litigation against copyright infringement, you must remember that in order to meet the burden of proof required of you, you must prove at least two things: 1. You have copyright. 2. The defendant made some type of unauthorized use of your work. If you are the defendant, in order for your defense to be successful you have to prove one of three things: 1. The plaintiff does not own copyright. 2. You received the copyright owner’s permission to use his work. 3. Your use of the work falls within the bounds of legal privileges and exceptions.
PROVING OWNERSHIP OF COPYRIGHT
One of the frequently heard arguments in cases of copyright infringement of artistic works goes as follows: “I saw a picture, there was no name on the picture so I copied it. What was wrong with that? Had I known it was protected I would never have copied it.” Although the Copyright Law of 1911 grants exemption in the case of infringement in good faith, the court must still rule whether the infringement was actually in good faith. A few years ago, the Copyright Ordinance was legislated. The tenets of the ordinance move the burden of proof from the plaintiff to the defendant and apply equally to any civil or criminal proceeding concerning copyright infringement. When the originator’s name appears on a compilation, even if in the form of a publicly recognized pseudonym, that person is assumed to be the originator of the work and the copyright owner. Anyone making use of the work is therefore required to either prove ownership of the work or the right to make use of it. An amendment to the Copyright Ordinance states that the copyright is owned by the person whose name appears proximate to the work. However, in light of the fact that in many cases names do not appear on the works, and even more so in the case of computerized works from which the originator’s name may be easily removed, the copyright owner is forced to prove ownership of the work. How exactly is this achieved? The answer is simple. The copyright owner must ensure, in advance, that he has evidence to support his claim of ownership. In the absence of statutory registration of the work, the most common way of proving right to the work is by way of evidence showing that the copyright owner was in possession of the work prior to the date of the infringement. One way is to send the work in a sealed envelope on which the address of the sender and the recipient are the same. On receipt of the envelope, the postal authority’s stamp provides the date. As long as the envelope remains sealed, opening it for the first time in court constitutes prima facie evidence proving that the content of the envelope existed on the date stamped on the envelope. However, this method is archaic, unsafe, and not recommended. It would be preferable to contact a lawyer or notary to confirm the originator’s affidavit close to the date of the creation of a work or prior to its publication. In the affidavit, the originator declares the existence of the work and attaches it to the affidavit. The date of confirmation of the affidavit then constitutes prima facie evidence of the date of the work’s publication. Another method, relatively new in Israel, is to work with one of several private organizations that provide a service similar to the lawyer by acting as a type of copyright registrar.
PRIVILEGES AND EXCEPTIONS
Not every “original expression” necessarily enjoys the privilege of copyright. For example, the implementation of a technological idea, as in the development of drugs, would be protected by a patent or, in the case of perfumes, kept a trade secret. So, too, a tangible work, such as a kitchen utensil that is mass-produced, is not protected by copyright, but rather by a different type of asset protection known as design patent. An idea, a process, performance method, algorithms, and facts per se are not regarded as copyrightable expressions. For example, factual news information is not copyrightable. Only the compilation of the facts in an original expression enjoys copyright defense. Furthermore, use can be made of a work without the permission of the copyright owner in very specific and limited circumstances, such as research, self-study, parody, reviews, or press summaries, provided it is done in a “fair manner.” It is up to the court to decide how “fair "the use was when it examines the purpose of the work and/or the purpose of using it. The more commercial the use made of the work, the more likely it is to be deemed unfair. The work’s value is defined as its market and the extent of the use made of it.
CRIME AND PUNISHMENT
The Copyright Ordinance provides the copyright owner with statutory compensation that requires no proof of damage caused by the unlawful use of a work. Compensation is NIS 10,000 - NIS 20,000 for each copyright infringement and is awarded cumulatively. The law also states that the public display of a copyrighted work for personal gain without the permission of the copyright owner constitutes a criminal offense punishable by a three-year prison sentence and a fine. This law and the punishment apply equally to the possession and/or selling and/or renting out and/or distribution of an unlawful copy of a work for commercial purposes. Since the law allows compensation for each infringement without requiring proof of damage, and since an Internet page could theoretically be sitting in hundreds of thousands of browsers, a quick calculation shows that compensation could run into many millions. However, before you start counting the cash I must point out there is an exception to the rule. In Civil Case 6182/04, heard in the Jerusalem Magistrates Court, the court ruled that even if copyright was infringed by the copying of several Internet pages, for the purpose of compensation all the copied Internet pages are deemed to be a single infringement and not individual infringements - which would naturally allow for higher compensation. The court added that in order to be awarded compensation for each individual case of copying the Internet page, the plaintiff would have to prove that each instance of copying the page constitutes a copyright infringement of an individual work. The court also noted that it is insufficient to claim that the ability to access each page individually makes each page an individual work. In order for an Internet page to be deemed an individual work, each page must meet the following conditions: It must have independent economic significance; it must be used independently by visitors to the site; it must have required independent investment. The scope of investment in each page is also taken into account. After examining the evidence, and on the basis of accepted practice regarding infringement in the physical world, the court found that the copying of four Internet pages constituted a single copyright infringement, and awarded statutory compensation of NIS 20,000 plus an additional NIS 10,000 for the infringement of the owner’s ethical right.
Aviv Eilon is the senior partner in Eilon Eghert & Co. Law Offices, heading the commercial ligitation. Aviv also lectures in Clark University in Israel and is responsible for www.netlaw.co.il –the internet, technology law portal.