Protection against indirect copyright infringement

Protection against indirect copyright infringement

July 18, 2012

There are different justifications for copyright protection, and they are usually divided into two groups: the protection of the author's natural right to the fruits of his labor, and economic-utilitarian justifications: without protection there would be no incentive for creation and investment. The law currently protects not only from direct copyright infringement - for example, the creation of a copy of a work that infringes the right - but also from their indirect infringement - secondary sale of the infringing copy. An issue recently discussed in the Supreme Court teaches us how the court interprets the protections in the event of an indirect / secondary copyright infringement.
Section 48 of the Copyright Law, 5768-2007 creates the protection against indirect copyright infringement and stipulates that copyright infringement also exists in the event that a sale or lease was made, possession for a business purpose; Commercial-scale distribution; Showing to the public in a commercial way; Or importation into Israel not for personal use; Of an infringing copy of a work. The law does not necessarily require actual knowledge that the copy is infringing, but is satisfied that the perpetrator had to know this.
Recently, the Supreme Court discussed the issue of Sheffer v. Tarbut La'am regarding the scope of protection in the case of an indirect violation and clarified that the violation is also committed in a case where the third party was in a situation of "closing eyes" - ie did not bother to check whether copyright is protected. In that case, there was talk of a publishing agreement for the Even-Shoshan dictionary, which was canceled due to a breach of the agreement. Despite its cancellation, the publisher continued to print dictionaries and distribute them. The rights holders in the dictionaries sent an alert to the distributor and after the distributor continued to distribute the dictionaries, they filed a lawsuit against him. The court divided the events into two groups: 1. Distribution of dictionaries sold before receiving the notice of the violation - regarding this category it was determined that there was no knowledge of the violation itself and no such knowledge was required and therefore no violation takes place; Compared to 2. Dictionaries sold after receiving the notice that the dictionaries are works that infringe their copyright - in this case the basis of the knowledge existed and it is a secondary infringement of copyright.
The court distinguished between an "end user" who uses a infringing work he has purchased under market conditions, and who deserves protection from claims by the right holder, and a commercial entity who makes "commercial use", including copying, advertising, public performance, sale, marketing and distribution For commercial purposes, knowing that (or when he is supposed to know) that it is a infringing work - the commercial entity will not enjoy immunity from lawsuits.
The ruling clarifies the importance of proper treatment in the event of copyright infringement and emphasizes the need for proper legal intervention by an intellectual property expert to prevent third party protections and prevent secondary distribution of copyright infringing products.