We recently represented a European playwright and composer, who holds the copyright of a popular and acclaimed musical which was about to be performed on stage in Israel without his permission and in clear infringement of his copyright. The playwright wished to prevent both the opening of the musical and advertisements about it. He also wanted to claim damages.
The direct infringers of his copyrights were the unknown foreign producers and actors.
The questions we were facing here, Can the playwright’s copyright be enforced in Israel when all parties are foreigners? What would be the most efficient way to immediately prevent the infringement, when it is evident that contacting the troupe/actors or the producer might give rise to serious difficulties?
At the outset, it should be noted that Israel is a signatory on international treaties for reciprocal copyright protection. The most important of these treaties is the Berne Convention for the Protection of Literary and Artistic Works. Israel adopted the convention in 1969 and the amended convention came into effect for Israel 6 month later. The purpose of the convention is to form a quasi “union” encompassing all signatory countries to protect the copyrights of authors and artists.
In terms of the Convention works created by citizens and/or residents of signatory countries, or initially published in such countries, are protected in Israel as if they were Israeli works. Israeli works are also protected in signatory countries. Since the majority of countries worldwide have signed at least one of the copyright treaties, most artistic and literary works in the world have copyright protection in Israel. Accordingly, the fact that all parties are foreigners to Israel did not assist the direct infringers in this case.
A copyright grants exclusivity in relation to various actions being done with an artistic work.. Section 11 of the Israeli Copyright Law defines a list of actions which, if performed by anyone other than the copyright owner, constitute direct infringement of the copyright, including reproduction, publication, public performance, broadcasting and renting. But the problem of the inaccessibility of the direct infringers remained.
Copyright laws recognize a few situations whereby an “indirect infringement” of a copyright is possible. Section 49 of the Israeli Copyright Law includes an express provision that imposes indirect liability in relation to an unlawful public performance. This section also imposes liability on the owners of the properties or land being used for public entertainment where a copyright infringement is being committed on its premises (‘’indirect infringer’’ or ‘’intermediary").
Selecting the right party to initially contact when a copyright has been infringed can be of considerable importance. There is a natural tendency to contact the party who is actually committing the infringement. However, it is not always possible to identify/locate the party who committed the direct infringement.
The indirect infringer has control over the commission of the infringement and also has the power to prevent it. The indirect infringer can usually be readily located. is also a person who will profit from the actions of the direct infringer. Consequently, in many cases, the indirect infringer is the most suitable party to contact to prevent infringement and. usually, is also the party with the “deepest pocket” to compensate the owner of the copyright for his damages. The question arises as to in what circumstances can an intermediary be held liable for the actions of another party (the direct infringer).
This issue has been raised on numerous occasions in instances when the middlemen were various internet intermediaries: ISPs, website owners, digital-file-storage service-providers and the like. These parties are often involved in a sequence of actions that eventually lead to copyright infringement.
The answer to this question in Israel is not coherently answered in the law, and the courts are responsible for setting the policy.
In terms of certain of the judgments in Israel the Courts have stated three criteria which must be met in order to impose liability on intermediaries: 1. the existence of direct infringement of a copyright; 2. the intermediary had known about the direct infringement; 3. the intermediary made a significant contribution to the commission of the infringement. If these three criteria are met, then liability for the copyright infringement may be imposed on the intermediary.
The intermediary must have had concrete knowledge of the infringement. Therefore, the “notice and take-down” principle must be applied, whereby the owner of the copyright must notify the intermediary of the infringement in order to satisfy the requirement of “concrete knowledge.” However, liability cannot automatically pass to intermediaries. If after notice of the infringing activity has been sent to the intermediary, and he, for no justifiable reason, refrained from taking action to prevent the infringement, then liability can be imposed on the intermediary.
The courts have recognized extreme scenarios, whereby liability shall be imposed, even without notice, such as, if the intermediary actively solicits infringement (for example, if the website owner actively encourages the posting of links to infringing websites) or if the intermediary’s business is largely based on infringing activities (such as internet forums used primarily as a platform for posting infringing links).
In the case at hand, a prompt notice to all of the theaters, halls and ticket offices involved in publicizing the play, with a warning of the infringing offense, coupled with notice that, if they do not cease and desist, then suitable legal measures will be instituted, produced the desired outcome and prevented the opening of the musical in Israel. The “curtain came down’’ on the musical before it had the chance to open!