Section 18 establishes the permitted uses within the framework of the Copyright Act, these permitted uses are set out in Sections 19-30. Section 26 deals with “temporary copies” created in the context of communications network, operated by an intermediary entity. According to Section 26 such transient copying, including incidental copying, is permitted if the copying is: (i) an integral part of a technological process and the only purpose of which is to enable transmission; (ii) between two parties, thorough a communication network, by an intermediary entity, or any other lawful use of the work; (iii) provided the said copy does not have significant economic value in itself. In addition, Section 58 defines an “Innocent Infringer”. In case an infringer “did not know, or could not have known, at the time of the...
This is the first case which introduced the doctrine of Contributory Liability into the patent system in Israel, taking inspiration from the Contributory Liability found in the US Patent Act. In a sense this case has established the basis on which Contributory Liability could be more easily introduced into copyright.
This act does not deal specifically with Intermediary Liability but it could be used in certain cases to claim unjust enrichment by the intermediary by the infringing act. Section 1 states “when a person (hereinafter: beneficiary) obtains any property, service or other benefit from another person (hereinafter: benefactor) without legal cause, then the beneficiary will make restitution to the benefactor, and if restitution in kind is impossible or unreasonable, he will pay him the value of the benefit.” Section 2 gives the Court discretions with regard to exemption of the” beneficiary from all or part of the duty to make restitution under section 1, if it finds that receipt of the benefit did not involve any loss to the benefactor, or that other circumstances render restitution unjust.”
The decision in Hebrew University v. Schocken is considered the leading authority on Contributory Liability in the context of copyright law. In this case, the Supreme Court introduced Contributory Liability doctrine into copyright law. This case involved copying of textbooks. The Israeli Labour Party subsidized a student club called “Teh Ofek” (Horizon Cell) at the Mt. Scopus Campus of Hebrew University. As an incentive to get students involved, they provided cheap versions of a course textbook entitled “Traditional Japan,” the publisher sued the student club, the Labour Party and the University. The Supreme Court has recognized that in certain specific circumstances courts can use the doctrine of Contributory Liability from Tort law to assess whether the action of an intermediary is infringement of copyright. The...
Haifa Center for Law & Technology (HCLT), http://weblaw.haifa.ac.il/en/Research/ResearchCenters/techlaw/Pages/aboutUs.aspx Orit Fischman Afori, Contributory Infringement in Israeli Copyright Law, 52 HAPRAKLIT LAW JOURNAL (Lawyers Bar Law Journal) 3 (2012) (Hebrew) Niva Elkin-Koren, The New Intermediaries in the Virtual Public Forum, 6 Mishpat Umimshal 381 (2003) (Hebrew)
Stipulation of the Tort Ordinance and common law tort law could be made use in the context of intermediary liability with respect to copyright issues because Section 52 of the Copyright Act states that “Infringement of copyright … is a civil wrong and the provisions of the Ordinance on Torts (New Version) shall apply mutatis mutandis subject to the provisions of this Act”. Section 12 of the Tort Ordinance states that “for the purposes of this Ordinance, any person who joins or aids in, authorises, counsels, commands, procures or ratifies any act done or to be done, or any omission made or to be made, by any other person will be liable for such act or omission.” This broad definition could be used to establish intermediary liability in the context of copyright infringement. In fact, reference use of intermediary...