Israel’s Fair Use

Some time ago I did a post on the new copyright legislation in Israel. There are many interesting things about this law, and now, at the curtsey of Prof. Niva Elkin-Koren from Haifa University, there is an unofficial English translation of the new statute available.

Section 19 is of particular interest. It replicates section 107 of the U.S. Copyright Act with two important improvements. First, the first fair use factor does not include the sentence “…including whether such use is of a commercial nature or is for nonprofit educational purposes.” This formulation created difficulties for U.S. courts in giving decisive weight to pure normative considerations, notwithstanding commercial or noncommercial use aspects. Many fair uses are not nonprofit and are not for educational purposes, but they are still fair uses. Courts now should be able to bring powerful normative-qualitative considerations into their fair use analysis without feeling guilty, which is great.

Second, the Israeli provision in 19(c) authorizes the minister to clarify the conditions under which certain uses are deemed lawful. This is a feature that Section 107 USCA does not have, and one may add, unfortunately. I could not find many words in the Bill about this important subsection (c) – but its purpose seems clear enough. It seeks to reduce uncertainties surrounding the application of fair use, and reduce their effect on risk-averse actors who can only guess, ex ante, whether the court would later excuse their use or not if an infringement action came their way. Subsection (c) permits the minister to introduce some more certainty into fair use law, by creating irrefutable presumptions (so I read it) that no liability attaches under certain stipulated conditions.

A third point that is not explicit in the text is the issue of transformativeness. I do not think that in Israeli law the question of transformativeness has acquired so much weight as it has in US law. In any event, the Israeli first fair use factor is beautifully concise: The court should consider “[t]he purpose and character of the use.” This is much more open than a strict transformativeness examination. It is possible that the caselaw will develop a similar requirement in the future, but at the moment, courts are not strictly bound by it.

All in all, I think it’s a balanced and sensible provision (William Patry appears to think so too). Thanks for the link, Niva!

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