The claim for copyright infringement requires a short introduction regarding the relevant normative framework.
25. As a rule, copyright laws apply to computer software in Israel.
Recognition of copyright protection for computer software was initially expressed in case law (Civil Case (District TA) 3021/84 Apple Computer Inc. v. New-Cov Technologies Ltd....);
Subsequently, the protection was anchored in legislation by incorporating Section 2A into the Copyright Ordinance 1924, which stated that for the matter of copyright, "the law regarding computer software is as the law regarding a literary work as defined in the Copyright Act, 1911". Section 2A was incorporated into the Copyright Ordinance in 1988 and subsequently amended in 1999 as part of legislative amendments intended to perform adjustments to the requirements of the TRIPS agreement...
Today, computer software is mentioned in the definition of "Literary Work" in the Copyright Act, 5768-2007 ("2007 Act" or "The Act"), which grants copyright if the conditions for such are met.
26. The provisions of the 2007 Act apply regarding a work created before the commencement date, subject to the provisions mentioned in the transitional provisions in Section 78 of the Act. The commencement date of the 2007 Act – six months from the day of its publication (Sec. 77 of the Act) – is May 25, 2008. The Software at the focus of the discussion here, MultiXFS software, was developed almost entirely prior to the commencement date. In order to know what the applicable law is for a concrete issue, one must examine whether it is a subject to which the provisions of Sec. 78 of the 2007 Act apply or not, whereas regarding a subject to which the provisions of Section 78 apply, the previous law shall apply.
27. Most of the subjects in dispute between the parties, though not all, concern ownership of the Software and the transferability of rights. Questions of ownership and transferability are discussed in the 2007 Act within Sections 33-37. According to the transitional provisions, "The provisions of sections 33 to 36 shall not apply to a work created before the commencement date, and the provisions of the previous law shall continue to apply regarding it for this matter" and "The provisions of section 37 shall not apply to a transfer of copyright made before the commencement date or to a license granted regarding copyright before the said date, and the provisions of the previous law shall continue to apply regarding them for this matter" (Sec. 78(e)-78(f) of the 2007 Act).
28. Regarding ownership and transferability, the relevant law for our matter is, therefore, the law preceding the 2007 Act, and in particular the Copyright Act 1911 ("1911 Act").
Limitation and Laches
Limitation (Statute of Limitations)
29. The Defendants claim that the claim has long since prescribed (expired), in its entirety or at least regarding the issue of ownership in the Software, inasmuch as a dispute in this matter erupted as early as late 2007, and Mitug should have acted legally in this matter within 7 years from that date.
30. I did not find grounds to accept this claim. Indeed, during discussions between Mitug and Shva in 2007, a dispute arose between them regarding the interpretation of an agreement. However, the parties subsequently reached an understanding which they signed in a manner that appeased their minds. From the Plaintiff's perspective, its position regarding its ownership of the Software was no longer challenged and did not require addressing. On the contrary, an amendment was signed by consent, and for years the agreement was upheld in a manner establishing, from its perspective, its ownership. There was no need to "armor" a right or enforce it, nor was it in the Plaintiff's power to receive the remedy for which it petitions in the instant lawsuit. A 'cause of action,' the birth of which begins the running of the limitation period, "is composed of the entirety of facts required to base a claim that will entitle the plaintiff to the requested remedy..." (LCA 6774/19 Afridar...).
31. This can also be viewed as a case where an anticipatory breach arises, and in the context of the start of the limitation race, it was ruled that "the option to file an early lawsuit" for anticipatory breach "is a choice in the hands of the injured party which does not detract from his right to file his claim against the violator only after the breach changes its status from an anticipatory breach to an actual breach" (CA 3179/19 Nash Ramot...).
Laches (Undue Delay)
32. The Defendants argue that even if limitation does not apply to the claim, its filing suffers from severe laches amounting also to lack of good faith and estoppel, and this suffices to bring about its dismissal.
Laches – General
33. According to Supreme Court rulings, alongside statutory limitation arrangements, the laws of laches will also apply in civil law in appropriate cases.