The district court in Tel-Aviv ruled that the notice and take down procedure does not have a legal standing in Israel, therefore, the argument that the website should have operated on a notice and take down basis is wrong. The Court ruled that in the absence of knowledge, the ability to supervise the information on the website is in itself not sufficient to establish knowledge of infringement. In addition, the website did not fit the two exceptions established in ALIS v. Rotter, encouraging infringement or “forbidden forum”, therefore, the website was not liable under Contributory Liability.
The proposed bill, which was first introduced in its original form in 2008, seeks to regulate e-commerce including the liability of ISPs, introducing a notice and take down safe harbor for ISPs. However, it currently seems as if the implementation prospects of the bill are quite low.
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.”
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)