New Copyright Law Amendment

Author:Mr Omri Rachum-Twaig
Profession:Fischer Behar Chen Well Orion & Co
 
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On January 1, 2019, the Knesset approved a significant new amendment to the Israeli Copyright Law ("Amendment") that focuses on the online use of protected works. We will review the main provisions of the Amendment below.

Indirect Liability for Communication to the Public:

The Amendment provides a new indirect liability for copyright infringement by way of using works that were made available to the public. The Amendment sets forth that a person or entity that, as part of a business, facilitates or extends the access to protected works that were made available to the public over the internet by copyright infringement, for the purpose of making revenue both from the extension of access and from the existence of an infringements, will be liable to copyright infringement if it knew or should have known of the infringement. It further determines that operating an ongoing infringement monitoring technology will not create a presumption of knowledge.

This arrangement is meant to tackle the phenomenon of online copyright infringements by websites that allow the downloading and direct viewing of infringing contents by linking to the sources of such infringing contents. In these cases, the direct infringers are the websites storing the infringing contents, but under previous law the mere facilitation of access to such contents did not constitute an infringement.

During the legislative process, concerns were raised that this new indirect liability will also apply to legitimate entities such as ISPs, online platforms and other intermediaries. It should be noted that the explanatory text to the Amendment explicitly states, as was reiterated by the Ministry of Justice, that this arrangement is not meant to apply to online platforms and intermediaries, to which the common law contributory liability doctrine will continue to apply.

Content Blocking Injunctions:

The Amendment authorizes courts to order ISPs to take reasonable measure to restrict access to infringing content, if the court is convinced of a copyright infringement and after weighing the adverse effects such restriction may have on the public and on the access to non-infringing content. Thus, courts will have to consider the necessity of the access restriction to prevent infringement, the efficiency of other available remedies, and the magnitude of the effect on non-infringing contents and on the privacy of internet users. The Amendment adds that if the infringing...

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