There is no question as to whether most or all or part of the protected melody was composed during the plaintiff's military service, since the defendant did not prove that the composition of the song was during and as a result of the plaintiff's military service. It should be clarified that in order to avoid any doubt in this matter - the defendant, who raised the defense's argument that the plaintiff does not own the copyright in the protected melody - is the one who is required to lift the burden of proof to prove this defense claim, with all its components, from beginning to end. In order to prove that the protected melody is a musical work created as a result of the plaintiff's service in the IDF, the defendant was required to prove that the plaintiff composed the song for the purposes of the Southern Command band. The defendant did not meet this burden of proof... The request to compose it was not received by the IDF or given to the plaintiff as an order or instruction by his commanders. The request to the plaintiff to compose the song was detached and unrelated to his being a soldier in the IDF at the time. The song was not performed by a military band, but was intended to be performed by singer Chava Alberstein. It therefore follows that the entire process of creating the song and the melody was on a private level, which has nothing to do with the plaintiff's military service."
- More than necessary, I would like to emphasize that even if I were to rule that these are works in which the ownership belongs to the State (due to the differences of opinion as to the intention of the parties), this argument is valid only until the date on which the plaintiff unequivocally and clearly announced that these are his paintings and he is the owner. There is no dispute that even after the plaintiff's announcement and his explicit declaration, the defendant continued to publish his paintings, even if they were individual paintings. Therefore, this argument does not help the defendant absolutely.
- In the margins, it should be said that even if the argument that it was the property of the State were accepted, it is in any case not the ownership of the defendant, so that a claim of someone else's ownership of the picture does not provide the defendant with protection or legitimize the prohibited action.
- The defendant infringed the copyright in the paintings
- Section 47 of the Copyright Law determines what constitutes copyright infringement, as follows:
"47. (A) A person who performs in a work one of the actions specified in section 11, or authorizes another to perform such an action, without the permission of the copyright owner, infringes the copyright, unless the action is permitted in accordance with the provisions of Chapter D. "
- Section 11 enumerates a number of actions that constitute a copyright infringement, including copying, publishing, public performance, broadcasting, making the work available to the public, and more.
- The plaintiff filed his lawsuit in which he detailed three main violations committed by the defendant in his opinion - commercial use of the paintings, the storage and publication of the paintings in the defendant's databases for the purpose of reuse, and the offering of the works to the company's customers for the purpose of making economic profits.
- The defendant, for its part, responded to these arguments by saying that these were permitted uses and that she was not the direct owner of the paintings and therefore she should not be held liable for the infringement. The defendant further stated that this was only a casual use and that she had no intention of enriching herself from the publication.
- After considering the arguments of the parties and reviewing the totality of the evidence that was presented, I found it appropriate to prefer the plaintiff's version. I am convinced that the defendant did indeed make commercial use of the paintings, even if it was not the party that actively uploaded the paintings to the database. The defendant and its agents published the drawings and offered them to the company's customers, giving them financial consideration in the form of printing the drawings on the products.
- The evidence indicates that the plaintiff's drawings were offered for printing by the defendant's agents or by the Army Club, by sending them on the "WhatsApp" application, posting them on Instagram or displaying them in the defendant's catalogue on its website (see Appendix 15 to the plaintiff's affidavit). It also emerges that even after the plaintiff warned the defendant and demanded that the paintings be removed from the database, the defendant still continued to publish them and did not worry that these paintings would not be made available to the public. If the defendant had doubts as to the copyright or ownership of the works, and even if it relies on a claim of implicit consent, then from the date of the plaintiff's update regarding his ownership and his request to remove the publications, this consent is no longer there.
- The defendant's argument that the soldiers believed that the works belonged to them and therefore could have used them as they saw fit, cannot negate the defendant's contribution to the infringement. Even if the soldiers themselves were the ones who uploaded the works to the defendant's database (and as is well known, the soldiers are not defendants), the defendant created the infrastructure for the infringement itself, and without it the infringement would probably not have been perfected, so that in fact it had an active, proactive and necessary part in committing the infringement of the plaintiff's rights. As a result, it appears that even if the argument that the defendant did not infringe the plaintiff's copyright is accepted - since the soldiers were the ones who added the drawings to the database, the defendant certainly contributed to the infringement and committed an indirect infringement.
- As things stand, I have come to the conclusion that the defendant did indeed infringe the plaintiff's copyright as stipulated in section 11 of the Law, by making the works available to the public, publishing the paintings on the various platforms, reusing his works, and all without the plaintiff receiving any credit for this and without giving his consent to these actions.
- Contributing Violation and Indirect Violation
- Beyond the plaintiff's claims regarding the direct violations committed by the defendant in his works, it seems that it is not possible to complete the work without also discussing the defendant's indirect and contributing infringement.
- Section 48A of the Copyright Law determines what constitutes an indirect infringement by way of making it available to the public, and this is what it says:
" 48a. A work that contains a copyright has been made available to the public, as stated in section 15, without the permission of the copyright owner, including after it has been made available as aforesaid for the first time, in a manner that constitutes an infringement of the copyright to be made available to the public as stated in section 11(5) (in this section - infringement), and a person has acted, by way of occupation, an action that is capable of facilitating the public's access to the infringing work or expanding the public's access to it. In order to derive profit from doing such an action and from the existence of access to the infringed work, he thereby violates the copyright, if at the time of performing the action he knew or should have known that the work was infringed; In this regard, a person who employs technological means to prevent access to a work that has been infringed will not be held for this reason alone as someone who should have known that the work was infringed."
- The section establishes a number of conditions that must be met in order for it to apply:
A work with a copyright was made available to the public; without the permission of the copyright owner; in a manner that constitutes an infringement of the copyright to make it available to the public - in our case, there is no dispute that within the framework of the database on the plaintiff's website, as well as on the defendant's Instagram and the Army Club company, works in which the plaintiff is the copyright owner were made available to the public, despite his refusal and in the absence of obtaining permission. In a manner that constitutes a copyright infringement.