Israel is undergoing major copyright reforms, especially with regard to online piracy and protected content, such as movies, TV shows and music. The Israeli Parliament recently approved Amendment 5 to the Israeli Copyright Law, which introduces new anti-piracy proceedings. Copyright holders will have access to advanced enforcement tools in order to obtain protection for their works, primarily from online infringement.
The first major change is to the scope of indirect copyright infringement, which has been widened by the new definition of ‘indirect infringement by making available to the public’. Under this, an indirect infringer is a person who, by way of business and to make a profit, posts or makes available a link to a website that facilitates protected works – provided that they know or should have known of the infringing use. This means that posting a link to a site that contains infringing content can be indirect copyright infringement if the person posting the link knew or should have known that the work was made available to the public while infringing copyright, and that activity was carried out for profit. This broader definition of indirect infringement has far-reaching consequences, especially with regard to blogs and forums that publish links to websites with infringing copyright-protected works. This step will eventually make it harder for users to find infringing content online.
The second major change is a new procedure that allows rights holders to obtain an order from the court to restrict access to the website where the infringing copyrighted content is available. According to Section 53a, the court now has the authority to issue orders to service providers so that they limit access to copyrighted content sources, partly or fully. Service providers are intermediaries that can block access to a website with infringing content. Since the Internet allows for anonymity, the person responsible for the infringement cannot always be located and sued. Section 53a therefore provides another enforcing tool for rights holders to block access to sites that contain infringing content via internet service providers, even though they are not directly involved in the infringement. The court can grant an access restriction order (a type of injunction) after considering the:
- severity of the infringement;
- effect on the public as a result of the order;
- expected degree of privacy violation of internet users; and
- possibility of providing other remedies instead.
The amendment established another enforcement tool that allows rights holders to obtain the identity of the infringer. A party that claims for copyright infringement by an unknown party online can now file a motion to disclose information about the unknown infringer from the service providers. This way, the rights holder can file an infringement claim against the infringing party. The court can therefore order the disclosure of details that may lead to the identification of this party, after being convinced of the existence of an infringement and sufficient information with regard to the identification of the infringer in order to file a claim. It can also appoint an expert to clearly identify the infringer and can also grant this entity the opportunity to deliver its arguments and object to the disclosure. This procedure was available to rights holders before the amendment, but this is the first time that it has been introduced in legislation.
Finally, the reform has made some adjustments in the criminal section of the Israeli Copyright Law so that there is no longer a difference between copyright enforcement in the physical world and online. Following the amendment, copyright infringement by way of making the work available to the public through the Internet is also a criminal offence, similar to selling a physical copy of a protected work. Criminal liability will only arise if the infringing action was made by way of business and for making a profit.
The reforms took effect in 2019 so it is still too early to tell how these changes will affect rights holders’ efforts to fight online piracy. However, it is a big step towards efficient enforcement in this area.
Ehrlich & Fenster of the Ehrlich Group
This article first appeared in IAM. For further information please visit https://www.iam-media.com/corporate/subscribe