Caselaw

Civil Case (Petah Tikva) 32966-01-22 Dr. Aviva Bashan v. Noga Agmon - part 10

February 27, 2025
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"In the Almagor case (p.  830), Justice Y.  Cohen discussed the conditions required to prove copyright infringement and other relevant distinctions, as follows:

(-) It must be proven that the defendant copied actual and substantial parts of the plaintiff's work, where it is not the quantity that counts, but the quality.

(-) Copying can be inferred when the defendant had access to the plaintiff's work, and when the similarity between the works is such that it is unlikely to be the hand of chance.

(-) The accumulation of similarities is important.  The more they are, the greater the concern that it is copying.

The question of whether the similarity between the two works is sufficient to determine that we are dealing with a copying of an actual and substantial part is a question of fact and rank.  The answer to this question should be given not on the basis of a mechanical comparison of a number of words or lines that are similar to the works in question, but according to the judge's impression of the works as a whole.

The Almagor rule established its status as a customary law, not a miracle of phlegm, and it remains in force to this day (see, inter alia: Civil Appeal 15/81 Goldenberg v.  Bennett, IsrSC 36(2) 813, 823 (1982)...The Hershko case, at p.  762; Civil Appeal 136/71 State of Israel v.  Ahiman, IsrSC 26(2) 259 (1972); Civil Appeal 8117/03 Inbar v.  Yaakov [Nevo] (January 16, 2006)."

The Honorable Justice Amit further noted there (in paragraph 27) that although copyright infringement is not examined on the basis of a mechanical comparison of words, but rather on the basis of an impression of the works as a whole, "a multitude of similarities can serve as an indication that this is copying, which in turn may amount to infringement of the author's copyright".  Similarly, and in fact even more so, to the extent that the plaintiffs are unable to prove even a single point of similarity with respect to the way of expressing an idea that is protected by copyright, the conclusion that follows from this is that copying within the meaning of the Copyright Law is not proven.

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