See also Orit Fishman Afuri, "The Right to Derive and Protect Ideas in Copyright Law," 10 Mishpat 1075 107, 117-119; Tamir Afuri, "The Copyright Law" [Nevo, 2012], at p. 112; Tony Greenman, "Distinguishing between an Idea and Expression and Examining the Question of Infringement in Copyright Law," Shlomo Levin's book, p. 625 [2013].
- At the same time, it is clear that there is no room to "skip" over the distinction between an idea and a way of expression, and to decide solely on the basis of policy considerations. First, because the law itself instructs the implementation of the distinction, and the judicial decision, as is well known, is subject to the provisions of the law. Second, because the distinction has a practical meaning "in life itself," and more often than not, examining the content through the lens that seek to separate the idea from the way it is expressed, while applying the common sense test, reveals the answer quite Sometimes, as with other concepts that are difficult to define, the principle of "when we see it" exists, which is the beautiful translation of the Honorable Justice Rubinstein to the phrase "I know it when I see it" coined by U.S. Supreme Court Justice Peter Stewart (see Criminal Appeal 2358/06 Suleiman v. State of Israel [Nevo] (September 17, 2008) at paragraph 106; Similarly, in the closer context of intellectual property, the Fisher-Price case in paragraph 21. As we will see later - this is the case here.
- As a side note and to complete the picture, it should be noted that a mere "idea" that is not protected by copyright law, may be entitled to certain protections by indirect means, such as by drawing up a non-disclosure agreement, as well as in special circumstances by means of complementary laws such as unjust enrichment and "the laws of trust" as defined by the learned A. Licht (see and compare Civil Appeal Authority 5768/94 S.I.R. Import, Manufacture and Distribution v. Forum Accessories and Consumer Products Ltd., IsrSC 52(4) 289 [1998]; Civil Appeal 8485/08 The FA Premier League Limited v. Sports Gambling Regulatory Council [Nevo] (14 March 2010) at paragraphs 66-67, the Zissu case at paragraphs 51; and Tony Greenman's book Copyright (2023) at chapter 17 at pp. 1195 ff.). These arguments were not developed in the plaintiffs' summaries, and therefore I will not discuss them (and in any case I do not believe that there was room to apply them in our case).
- The question that must be decided in this case is whether the defendants' article constitutes a copying of the plaintiff's research products, and in particular of articles 8 and 9, or of a substantial part thereof, in contravention of the provisions of section 11(1) of the Copyright Law, which states that "a copyright in a work is the exclusive right to make one or more actions in the work, or in a substantial part thereof, as detailed below. Depending on the type of work: (1) Copying as stated in section 12 - for all types of works."
The conditions and requirements for proof of copying were set in the veteran Almagor ruling by the Honorable Justice Y. Cohen, and as the Honorable Justice Amit noted in the Motzfi case - this is the customary rule and not a miracle of phlegm even today. The Honorable Justice Amit summed up the matter as follows (Motsafi, at paragraph 26):