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Feb 23
Fair Use Week 2015: Fair Use – Two Drafting Comments / Adv. Tamir Afori

Congratulations Haifa Center for Law and Technology​ on this new blog!

Haifa University Faculty of Law (which I graduated from in 1996) has always been at the forefront of research of law and technology in general, and copyright law in particular.

It is wonderful to be part of "Fair Use Week" here in Israel. Actually, Israel is the only developed country who followed US legal tradition in including a Fair Use section in its law. Public committees and academic scholars in many other jurisdictions have considered and recommended Fair Use legislation (including the UK and Australia), but such initiatives have never advanced to fruition.

It took years of intensive work within the ministry of justice and later on in the Knesset hearings, until the Copyright Act of 2007 became law, replacing the British Copyright Act of 1911 still in force in Israel at the time. No section reflects more profound and important change in the spirit of the law than section 19 on Fair Use. Fair Use is one of the most important balancing factors of the rights which are granted to the copyright owner, in order to serve public interests such as freedom of speech, advancement of culture, competition in the relevant markets, and availability of new information technologies.

The Fair Use doctrine in general, and its application in Israel, has been and probably will continue to be the subject of commentary and legal research. In this short post I wish to point out two interesting features of the Israeli legislative version of the doctrine:

  1. The term "such as" that relates to the list of purposes that may justify Fair Use, as drafted in Hebrew in subsection 19(a), is semantically less unrestrictive than its US counterpart. While the US law defines "such as" as illustrative and not limitative, the Israeli law does not include such definition; in fact, the drafting history shows a specific intention in selecting a Hebrew term that carries some limitative character, in order to balance flexibility and certainty of the law. While the list of purposes is rather wide, and seems to cover most expected areas of Fair Use, it still appears that some connection of the use to the enumerated purposes is necessary to enjoy Fair Use exception.
  2. Subsection 19(c) allows the Minister of Justice, with approval by a Knesset committee, to make secondary legislation (regulation) that denotes circumstances in which certain use shall be considered "fair". This subsection was added during the Knesset committee hearings as a response to arguments made about lack of certainty and over-dependency on the judicial system. It demonstrates a theoretical combination of "judge-made" and legislated exceptions. Such regulation streamlines and simplifies norm-setting and may serve as an efficient tool to codify or even correct (when necessary) Fair Use trends in the courts or in the industry in order to provide for more certainty. No Fair Use regulations have been made to date; it may take some time until the Israeli legal system adjusts to applying the doctrine and establishes guidance for application of the four-factor "fairness" considerations. Educational uses of copyrighted material, especially in academia, which have been a center of debate in the Knesset, may be an appropriate domain to start with for making such regulations.
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US doctrine is definitely a main source of inspiration for Israeli Fair use. But now it is time for the Israeli judicial system to develop the local doctrine and to strike the local balance of interest.

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 Adv Tamir Afori.jpgTamir Afori, Adv., Senior Partner
    Gilat, Bareket & Co.
    Visit our website: www.gilatadv.co.il/en

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