Attorney Gil Nadel, Attorney Rosie Murdoch- Ron
The copyright law (2007) determines that under circumstances where a copyright breach has been committed, the court is permitted to rule in favor of recompense for the plaintiff without proof of damage, at a sum total not exceeding NIS 100,000, in which case the following must be taken into consideration:
(1) The extent of the breach, as far as the length of time and the gravity of the breach;
(2) The court's evaluation of the actual damage caused to the plaintiff;
(3) The court's evaluation of the profit reaped by the defendant due to the breach;
(4) The character of the defendant's actions and his relation to the plaintiff;
(5) The good faith of the defendant, that is, did the defendant commit the breach in ignorance or deliberately;
It must be noted that the final consideration was determined by the Law for the Protection of the Bona Fide Breach which states: "If a copyright or moral right was breached without the committer knowing or wasn't meant to know, at the time of committing said breach, that this material is copyrighted, the committer of the breach will not be charged with recompensing the breach".
The court recently ruled that if the State has made use of material transferred to it by another party, the State is not exempt of liability for a breach of copyrights, even if the State was unaware of the owner of these copyrights. The court determined that if the breach was committed despite having the awareness that this material is copyrighted, even if the owner of these copyrights is unknown, the "Bona Fide Breach" is not applicable.
The action was filed by an accountant and a company that provides consultation services for retirement taxation. The two claimed to have created a slideshow dealing with the taxation of retirement funds which was aired on their internet site and this slide show had been presented in the lectures of another tax consultant which were given, among other venues, at a convention which took place at the bureau of the accountant general, and were later uploaded to the accountant general's internet site (the State).
The verdict constituted a discussion of the copyright breach committed by the tax consultant as well as by the State, but we wish to focus on the State's position in this procedure.
The plaintiffs claimed these slideshows are informative and possess financial and legal value, and the State has breached their copyrights.
The court, in its detailed ruling, after determining that these slideshows are in fact material that is worthy of copyright protection and that their copyrights do in fact belong to the plaintiffs, deliberated over the question- is the State protected from a breach of copyrights committed in a convention and on the internet site of the accountant general? That is, is the State considered a committer of a Bona Fide Breach?
In regards to this question the plaintiffs claimed that the State must not be considered to have committed a Bona Fide Breach because according to them the State knew that this material was protected by copyrights, even if it was unclear to the State who those copyrights belonged to.
The plaintiffs claimed the State was obliged to corroborate that the breached slideshow presented by the tax consultant in his lecture at the accountant general and which was furthermore uploaded to the accountant general's internet site at a later date, does not infringe on the rights of a third party. The plaintiffs claimed that the State must stand up to the same stringent standards that it demands of its sub-contractors and it must conduct a thorough, extensive check as to the rights of others and to demand a statement of compensation or a commitment from the tax consultant on this matter.
The court sustained the claims of the plaintiffs. It was proven that the State was aware these slideshows were protected by copyright laws, but the State was unaware of who these copyrights belonged to, and is therefore not considered to have committed a Bona Fide Breach.
The State attempted to plead "notification and removal", meaning the internet site and its administrators will not be held accountable for any offensive content submitted by third parties (internet surfers, talkback, etc.) if said content is removed within a reasonable time after being requested to do so. This clearly refers to cases in which the internet site is open to the random uploading of anyone who is not a site administrator.
The court ruled that it is impossible to compare the accountant general's internet site to a site which is open to uploads made by surfers and visitors without the site administrators' ability to check and corroborate whether the material is protected by copyrights.
The court ruled that the State's conduct- uploading material to their internet site without a background check- does not live up to reasonable expectations and thereby ruled that the State committed a breach of the plaintiffs' copyrights and the Protection of the Bona Fide Breach is not applicable in this case.
Notes:
The verdict meticulously details the stages for determining the compensation of the copyright breach, beginning with identifying the work, through the evaluation of the breach and ending in the determination of the compensation.
The verdict amply details that the power of the Protection of the Bona Fide Breach is applicable only if the claimant for such protection was unaware of the existence of copyright law and if said claimant can provide proof that steps were taken by him to protect the rights of others. Furthermore, it was ruled that a lack of knowledge regarding the owners of the copyrights does not fall under the jurisdiction of such protection.
It is clear that the State is not a private body looking to turn a profit. Therefore it is safe to assume that the slideshow was not uploaded to the State's internet site for business purposes or for financial profit. And yet the court determined that the State is accountable for a copyright breach.
In the bottom line, we believe that in this case, it was the State's responsibility to require the tax consultant to sign a document declaring that the copyrights to the graphs belong to him and in this case, the court may have ruled that the State had committed a Bona Fide Breach.
[Civil Suite (Jerusalem Magistrate's Court) 5792/09
Gabai and others vs. the accountant general the Finance Ministry and others, verdict of
March 18, 2012, Judge Arnon Darel. On behalf of the plaintiff- Attorney Kaplan. On behalf of the State- Attorney Binenbaum. On behalf of the tax consultant- Attorneys Klinger and Sela].
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