Recently, the Israeli Knesset (the Israeli Parliament) accepted into law Amendment No. 5 to the Israeli Copyright Law, 2007 ("the Amendment" and "the Law", respectively), which aims to establish measures to combat copyright infringement on the internet, while at the same time preserving the balance among copyright owners, internet users and the interest in a free flow of information and free speech. The Amendment offers five principal reforms:
1. Expansion of indirect infringement – the Amendment stipulates that any action performed by a person by means of such person’s business occupation, which eases or broadens the access of the public to a protected work, which was made available to the public through the infringement of copyright, and the person performing such action intends to derive a profit from making the work publicly available, will constitute an indirect infringement, provided that the person performing such action knew or should have known, at the time the action was performed, that the work was being made publicly available in an infringing manner. The Amendment also provides that a person who implements technological measures to prevent access to infringing content (for example: YouTube's Content ID program) will not be regarded, due to the implementation of such technological measures, as having known that the work was made publicly available in an infringing manner.
2. Court order to block or limit access to websites – the Amendment lays down a procedure whereby parties can apply to the court and obtain an order against an Internet Service Provider ("ISP"), directing the latter to take reasonable steps to limit or block access to a website, a major part of whose content directly or indirectly amounts to copyright infringement. In order to ensure that the court will exercise its authority proportionally and reasonably, the Amendment lists several factors that the courts should take into account when considering granting an order to block or limit access to a website, such as: the effect on the public at large of the decision to block (or not to block) access to the website; the severity of the infringement; the necessity of the order in preventing the infringement, and other factors. By vesting the courts with the authority to grant orders of this nature, the Amendment seeks to settle a disparity within the Israeli lower courts on this question. While in several cases some Israeli courts have granted orders directing ISPs to block the access (of Israeli users) to infringing websites, other courts have been reluctant to issue such orders, since they are essentially directed against third parties (the ISPs), which are not directly involved in the infringing activities.
3. Motion to disclose the identity of an anonymous online copyright infringer – the Amendment sets out a procedure (which will enter into effect on August, 2019) regulating the disclosure of the identity of an anonymous online copyright infringer, whose details are required in order to file a copyright infringement claim. Accordingly, the court will be vested with the authority to order a third party to disclose information about the alleged infringer. The Supreme Court has in the past ruled that the law does not provide any mechanism for obtaining an order demanding that the identity of an alleged infringer be disclosed, and suggested that the legislature take a stand in this matter. Accordingly, regulating this issue within the ambit of the Amendment shows that the legislature has indeed taken the required stand.
4. Orphan Works – the Amendment prescribes conditions for the use of orphan works. It requires, for example, that prior to using an orphan work, the party who intends to make such use (“the user”) will exercise due diligence (which will be determined according to the nature and date of the work) to locate the copyright owner; will clearly state (in the same manner the work is used) that the work is being used according to this provision of the Law facilitating the use of orphan works and also include the user's contact details; and that the user will cease using the work or secure an appropriate license to use same, if, once found, the copyright owner requests this. If the intended use is for commercial purposes, the user will be required to publish a notice on the internet or in a daily newspaper, before using same and pay equitable remuneration if an approach is made by the copyright owner.
5. Expansion of the penal provisions of the Law – the Amendment stipulates that an infringement of the right to broadcast a work and of the right to make the work available to the public will constitute an offence, where the infringement was carried out as part of the infringer's business occupation and with the aim deriving a profit therefrom.
Legislatures worldwide face the hurdle of regulating, inter alia, infringing activities on the internet, and finding the right balance between the different players in this field. The Amendment seems to follow, with some variations, the footsteps of the Copyright Digital Millennium Act ("DMCA"), although, it can be argued that the protection offered to online platforms and ISPs is greater under the DMCA. Across the pond, the European Union is in the process of modernizing and adapting its copyright directive to conform with the current digital environment. Initially, the new directive (Directive on Copyright in the Digital Single Market) contained a provision requiring online platforms to ensure the functioning of agreements concluded with rights holders, or to implement content recognition technologies to block infringing content. This provision, as well as other suggested provisions, has attracted widespread criticism. The directive is currently in the trilogue stage and awaiting to be debated by the respective members of the European Parliament, Commission and Council.
It is yet to be seen how the Amendment will be implemented by the Israeli courts. The internet environment and its characteristics raise an array of highly complex issues, in particular with regard to maintaining the right balance among rights holders, users and intermediaries, such as online platforms and ISPs. All of these elements interactively feed and rely on one another, and each is essential for ensuring a viable, conducive and productive internet environment.
