Civil Case 43860-02-24 Matti Caspi v. Avraham Salma - part 3

Who has the rights to the work?

31. At the heart of the dispute between the parties is the Copyright Law, 5768-2007 (hereinafter: the Law), which defines the conditions for the existence of a copyright in a work in Israel and the essence of the right. The law states, inter alia, that "the creator of a work is the first owner of the copyright in the work" (section 33 of the law) and that the creator also has a moral right in his work (sections 45-46 of the law).
32. The defendant did not dispute that the plaintiff was the creator of the work used by the defendant, but argued that he transferred or erased his copyright to ACUM. According to him, ACUM is a royalty company, within the meaning of the Copyright Ordinance, i.e., a corporation that represents most of the copyright owners, performers or producers (Section 3B of the Ordinance).
33. An examination of the sections of the Ordinance that remained in force with the enactment of the Law (section 69 of the Law) shows that the role of the royalty companies, as indicated by their name and as claimed by the plaintiff, is to serve as a mechanism for the collection and distribution of benefits. It has not been found that the royalty companies have any status as owners of copyrights (or moral rights) in the works in relation to which they are acting to collect royalties.
34. The defendant's argument in this context, therefore, has nothing to rely on.
35. For the sake of comparison and to complete the picture, it is worth mentioning previous judicial rulings.
36. Thus, in Civil Case (Tel Aviv District) 58145-04-19 Yossi Gispan v. The Cameri Theater of Tel Aviv (Nevo, June 13, 2023), the District Court (the Honorable Judge v.  Grossman) discussed a proceeding in which the dispute was in relation to the claim that the plaintiff's rights there were transferred to ACUM in a document signed by the plaintiff, and that the defendant had arranged a license from ACUM to use works whose copyrights are in ACUM's possession.  In the same proceeding, evidence was also heard on behalf of ACUM, and the judgment noted that ACUM was "a non-profit organization that collects royalties for the creators and transfers them to them only minus operating fees," and that "almost every work played in Israel is managed by ACUM." The court's decision there was based to a considerable extent on the terms of that letter of transfer of rights signed by the plaintiff.
37. In the present case, no similar transfer of rights letter signed by the plaintiff was presented (although the defendant claimed in his summaries that the relationship between the plaintiff and ACUM is unknown, and that the plaintiff's silence in this context shows that there is substance to the defendant's claim with respect to the rights that were claimed to have been transferred to ACUM).
38. In Civil Case (Tel Aviv District) 47108-09-17 Ariel Zilber v. Keshet Broadcasting in a Tax Appeal (Nevo, April 20, 2020), the plaintiffs' claims (in a proceeding in which ACUM was also included as a plaintiff) were examined in light of a letter of transfer of rights signed by the plaintiff there, in which he transferred "some of his rights" to ACUM (paragraph 9 of the judgment).
39. The result, therefore, is that with respect to the defendant's claim that the plaintiff's rights were transferred to ACUM, and that he applied to this body in order to obtain approval for the use of the work (a confirmation that was also not received according to the defendant's version, but was only informed that his application was "under treatment"), the scales are tilted in favor of the plaintiff's claims and the defendant did not receive the required approval from the owner of the rights in the work.

The defendant - an innocent violator?

40. Hence, the defendant infringed the plaintiff's copyright in the work, when he used it without his permission.
41. Does the defendant have the right to defend against this violation? The defendant claims the defense of an "innocent infringer", as provided in section 58 of the Law.
42. The section states that "a copyright or moral right has been infringed, but the infringer did not know and should not have known, at the time of the infringement, that there is a copyright in the work, he will not be obligated to pay compensation due to the infringement."
43. In order for the defendant to be able to shelter in the shadow of this defense, he must show the existence of two cumulative conditions: a subjective test ("he did not know") and an objective test ("he should not have known"). The objective test determines that it is not enough for the infringer to have no knowledge, but he must also show that he should not have known about the existence of a copyright in the work.  The required knowledge relates to the existence of a copyright in the work, and not to the identity of the owner of the right or the scope of the permission to use.  The burden of proof of the existence of the innocent infringer defense is on the defendant, and it is a heavy burden.  This protection is limited to exceptional cases only, where the protection of the copyright in the work that is the subject of the infringement may be reasonably questionable.  These cases include, for example, old works whose protection period has passed, works that do not need to be the object of copyright, or foreign works that are not protected by copyright law.  See, for example, Civil Appeal (Hai District) 28088-10-18 Charlton in Tax Appeal v.  Wazan Lior Perzi (Nevo 31.1.2019, para.  29 of the judgment); Civil Appeal 1248/15 Fisher Price Inc.    Devron - Import and Export in a Tax Appeal (Nevo 31.8.2017).  A vague claim of ignorance is insufficient.  In addition, a defendant who refrains from conducting an examination as to the existence of a copyright or the identity of the owner of the right, or who "turns a blind eye", will not be able to benefit from the protection.  See Civil Appeal Authority 7774/09 Amir Weinberg v.  Eliezer Weisshof (Nevo 28.8.2012).
44. The defendant's application , according to his own claim, for the purpose of obtaining approval from ACUM for the use of the work shows that the defendant knew of the existence of a copyright in the work (but chose, it seems, not to check who actually owned the copyright). The result is that the defendant is unable to lift the burden with regard to the existence of the defense that he sought to use.

The Moral Right

45. The plaintiff also claims that his moral right to the work has been violated, and the defendant argues that at most this is the only right of the plaintiff that has been violated (see, for example, paragraph 7 of the defendant's summaries). The moral right is defined in Chapter 7 of the Law, and it includes the right of the creator "to have his name named on his work to the extent and extent appropriate in the circumstances of the case" and "that no defect will be inflicted on his work and no other distortion or change of form will be made in it, and that no offensive action will be taken in relation to that work, all if any of them are likely to harm the dignity or the name of the creator" (section 46 of the Law).
46. Court rulings present many cases in which copyright infringement was accompanied by a violation of a moral right. For example, publishing a photo in a newspaper without mentioning the photographer's name constitutes a violation of the moral right of attribution, and at the same time, if the publication is done without permission, it also constitutes a violation of the economic copyright.  In addition, altering or distorting a work (such as adding elements to an image or cartoon that degrades the original work) without permission, violates the right to the integrity of the work and the rights of the creators.  Civil Appeal Authority 12/17 Ephraim Sharir v.  Nirit Zera'im in Tax Appeal (Nevo 28.3.2017), Civil Case (Tel Aviv Magistrate) 39402-10-19 Yonatan Kochba v.  Merav Dahan Peretz (Nevo 9.12.2024), Civil Case (Tel Aviv Shalom) 43688/06 Rubinger v.  Walla! Media in Tax Appeal (Nevo 5.2.2009), and more.
47. The changes made in the lyrics of the song and the political context accompanying the use of the song lead to the conclusion that the plaintiff's moral right to the work was also violated by the defendant, and the plaintiff proved this claim as well.

The amount of compensation

48. Once the plaintiff has proven his claim, the issue of the amount of compensation to which the defendant should be charged remains.
49. The plaintiff petitioned for compensation without proof of damage at the rate of up to ILS 100,000 for each violation and claimed that the defendant had committed a number of violations - so that he should be charged ILS 300,000. The defendant, on the other hand, argued that all the considerations in section 56 of the law should be taken into account, the defendant's good faith should be addressed, and he should be obligated to pay minimal compensation at most.  The defendant mentioned his claim that it was a short-term use of the song (only about a month), and that he did not receive any financial benefit from the use of the song.
50. The court interpreted the phrase "any violation" as follows: "The expression 'every violation' should be interpreted to refer to any type of violation; In other words, statutory compensation can be imposed several times, only where the defendant or defendants infringed a number of copyrights for which they are sued" (Civil Appeal 592/88 Shimon Sagi v. Estate of the late Avraham Ninio, 46(2) 254 (1992)).
51. The plaintiff referred to Civil Case (Hai District) 67249-01-19 Matti Caspi vs. Eliyahu Novoselsky (Nevo 26.1.2022), where another work of the plaintiff was used by another mayoral candidate.  The court noted there that "the defendant's actions were characterized by indifference to the extent of contempt for the plaintiff's copyrights.  This indifference is expressed in the choice that the defendant took upon himself to use the melody as he wished in the framework of his political campaign, and even in the period of time he took for himself until he responded to the warning letter sent by ACUM," and determined that he should be ordered to pay compensation in the amount of ILS 45,000 for each violation, and additional compensation for the violation of the moral right.  The defendant sought to diagnose this judgment and noted that its circumstances, and the defendant's conduct there, are completely different from those in the present case.
52. The defendant, for his part, referred (paragraph 28 of the summaries) to a ruling in which compensation was awarded at a low rate (even a few thousand shekels for the violation). Thus, in Civil Case (Central District) 10695-09-09 Nav N Go Kft v.  Dimitri Goltzman (Nevo, September 6, 2011), it was determined that the defendants' actions amounted to one infringement of the plaintiff's copyright and the compensation awarded was up to ILS 30,000.  Elsewhere (Civil Case (Hai District) 23739-11-14 Kabushiki Kaisha Sony Computer Entertainment Inc.    Anat Abu Rukan (S.A.R.  Electronics) (Nevo, April 26, 2015), the amount of compensation was set at only ILS 4,000 for each violation, and in the Civil Case (Central District) 30634-07-10 Apollo - Adex in a Tax Appeal vs.  Direct Marketing - Kraus in a Tax Appeal (Nevo 30.12.2013) the compensation was set at ILS 3,000 for each violation.
53. The judgment to which the defendant referred is different. This is, as a rule, cases in which the infringement relates to a commercial product (computer software, backpack) and not to an artistic work.  The context of the matter and the issue of direct and indirect damage caused or not caused in those cases leads to the need to distinguish between the examples.
54. The reference to the judgment in the Novoselsky case mentioned above is more similar to the case before us, with the changes necessitated in view of the conduct of the defendant there and that of the defendant before me, as detailed above. In Civil Case (Shalom Tel Aviv-Jaffa) 75443/04 Yedioth Communications in a Tax Appeal v.  Israel Meir Gudovich (Nevo, March 3, 2008), the circumstances were similar (infringement of the copyright of an artistic work (caricature) for the purposes of a political election campaign), and the court awarded the statutory compensation that was claimed and was authorized to award at the time.  Similar statements and determinations are found in other judgments (Civil Case (Shalom Krayot) 13143-09-08, David Finzi v.  Shavit Yehuda z"l (Nevo, March 16, 2015), Civil Case in Fast Track (Shalom App.) 28263-12-12, Ephraim Sharir v.  Meretz Yahad Party (Nevo, December 30, 2014), and others).
55. In this case, it was claimed in the statement of claim (and it is not hidden) that the defendant made use of the work in videos (such, in the plural) that were distributed on social networks. On the face of it, this is the same use of the work and its distribution in various digital tools and frameworks.  I find, in view of the tests as presented above, that this is a single violation.  I set the compensation for the infringement, in light of the tests and rules set out in the case law as presented above, in the sum of ILS 40,000 for copyright infringement and an additional ILS 30,000 for infringement of the moral right.
56. In conclusion, I order the defendant to pay the plaintiff the sum of ILS 70,000 together with ILS 70,000 interest from today until the actual full payment, a claim fee as actually paid (an exemption from paying the second half is hereby granted) and attorney's fees in the amount of ILS 8,500 together with ILS interest from today until the full payment is actually made.

The right to appeal by law.