What Can Canada Learn from Israel about Copyright Reform?

A bill entitled Bill entitled "An Act to amend the Copyright Act" is likely to be handed down next week.  While the bill itself is probably drafted already, its content will be deliberated in Parliament.   Therefore, Canadian policymakers may wish to consider looking at the new copyright act which the Knesset, the Israeli parliament, passed last month (downloadable here, in Hebrew; English translation now available here).  There are at least two reasons to look at Israel's new act:  one is to consider the approach taken by the Israeli legislators to many copyright issues that are relevant to Canada.  A second reason is that despite the geographic distance, the two countries share a common copyright heritage.  Until last week, Israel's copyright law was principally based on the UK Copyright Act of 1911, the same statute after which Canada's first home-made copyright act was modeled in 1921. 

Here are a few issues that may be relevant to the upcoming debate in Canada:

Perspective: Copyright lobbyists (as well as government officials) often argue that Canada must modernize its copyright law lest it stay behind on the technological and cultural front. A little Israeli perspective could help, especially when one recalls that Canada has overhauled its copyright act a few times over years, with significant reforms only a decade ago. If you had to name a developed country that unquestionably needed to modernize its copyright legislation, Israel was that country. The patchwork of statutes based on the UK 1911 act surely needed to be replaced with a modern statute. Nevertheless, despite its antiquated legislative framework, Israel has emerged as a technological and creative powerhouse. Being the world's 100th smallest country, with less than 1/1000th of the world's population, Israel has the world's second highest per capita of new books; it produces more scientific papers per capita than any other nation by a large margin - 109 per 10,000 people. In proportion to its population, Israel has the largest number of startup companies in the world. In absolute terms, Israel has the largest number of startup companies than any other country in the world, except the U.S. (3,500 companies, mostly in hi-tech), and has the highest concentration of hi-tech companies in the world -- apart from the Silicon Valley, U.S. (see more interesting facts here). This, of course, doesn't imply that Canada should not reform its law when appropriate, it only suggests that arguments about the urgent need to "modernize" its copyright law should be taken with a grain of salt, especially when modernize is used as a synonym to expanding existing rights.

True common law approach: Israel's new act is rather slim. It contains 5546 words, compared to more than 35,000 in Canada's. True, English tends to use more words than Hebrew, and certain issues (such as broadcasters' and performers' rights) are included in the Canadian act but are covered by separate statutes in Israel. But still, Israel has chosen to refrain from legislating very detailed arrangements. Instead, it preferred a more principle-based approach, which delegates the tasks of interpretation and adaptation of the law to specific cases and technological developments to the courts.
Consider for example educational uses. Canada's act has an entire chapter on permitted uses by educational institutions. The chapter is full of very detailed exceptions to infringement accompanied by exceptions to the exceptions, the reading of which often resembles reading the Income Tax Act and its regulations. Israel decided to avoid such legalese. Instead, it created a new general "fair use" exception, which includes, among others, uses by an educational institution for training and examination. It decided to let the courts determine over time the exact scope of this exception on a case by case basis. The importance of this new fair use provision goes, of course, beyond educational uses.

Fair Use: Under the old act, Israel had a "fair dealing" provision, very similar to that of Canada. Under that old regime, in order not to be infringing, a particular dealing with a work needed not only to be "fair" but also to be for one of the enumerated purposes mentioned in the act. Like in Canada, the courts viewed this list of allowable purposes as exhaustive. Although in 2004 the Supreme Court in CCH v. LSUC mandated that fair dealing, as an integral part of a balanced copyright regime, requires "large and liberal interpretation", the exhaustive nature of the allowable purposes has caused various distortions. First, it creates unnecessary rigidity by excluding uses which may be fair and desirable, but do not fall under any allowable purpose. Second, it encourages courts seeking to avoid this rigidity to stretch the meaning of the allowable purposes to cover dealings that may not necessarily be compatible with their ordinary meaning.

The new Israeli act changed that and adopted an open-ended flexible approach à la the US fair use defense. The new s. 19 reads as follows:

(a)  Fair use of a work is permitted for purposes such as: private study, research, criticism, review, journalistic report, quotation, or training and examination by an educational institution.

(b) In determining whether the use made of a work according to this section is a fair, the factors to be considered shall include, among others:

1) the purpose and character of the use;

2) the character of the work used;

3) the scope of use, qualitatively and quantitatively, in relation to the work as a whole;

4) the effect of the use upon the value of the work and its potential market.

(c) The Minister may make regulations proscribing conditions under which use will be deemed fair.

This approach for fair use has worked fine for the US for decades.  Last year, the Gower Review recommended that the UK move in the same direction.  Israel did so last month.  Canada should do the same.

Parallel Importation:  As is quite evident from last August decision of the Supreme Court in Euro-Excellence v. Kraft the question of whether copyright law can be invoked to prevent parallel importation has always been a messy one.  If you recall, in that case a majority of the Supreme Court believed that Kraft could not prevent the parallel impartation of chocolate bars, but they could not agree on why. Israel decided to adopt a much more elegant and simple solution: to make it clear that parallel importation of copyrighted works is permissible as a matter of copyright law; that the copyright act should not be used to erect barriers to competition.
S. 1 of Israel's new act defines the term "infringing copy". The definition includes the importation of a copy that would infringe copyright if it had been made in Israel (similar to Canada's "hypothetical infringement" test with which readers of Euro-Excellence will be familiar). However, the definition clarifies that a copy made outside Israel under the authority of the copyright owner in the country where it had been made, will not be considered an infringing copy. Elegant and simple.

No Anticircumvention: One of the most controversial issues in the forthcoming legislation is going to be the legal protection against the circumvention of technological protection measures for copyright works. Like Canada, Israel is a signatory to the 1996 WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) which require their members to "provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures" used by right holders to restrict restricts certain acts not authorized by the right holders or not permitted by law. Like Canada (and many other OECD countries) Israel has not ratified the treaties, meaning that it is under no international obligation to comply with the Treaties.   

Not ratifying the Treaties has not prevented Israel from complying with their requirement to enact a "making available" right. But interestingly, Israel's brand new copyright act contains no anticircumvention provisions. The Israeli government has taken the view that at the moment, anticircumvention legislation does not seem to be urgently necessary and Israel would benefit from further studying the need and potential effects of such legislation. Therefore, the Ministry of Justice decided to conduct a separate public hearing about whether and when such legislation should be enacted. This, of course, will influence Israel's decision whether or not to ratify the Treaties.

Israel's new act has revealed its copyright priorities. Overall, Israel decided to increase the flexibility of its copyright law and make it more open and friendlier to users, educators and innovators. It decided to reduce the ways in which copyright law can work to restrict competition. For the time being, it decided not to enact anticircumvention rules that have the potential to work in the other direction. This choice is compatible with Israel's innovative and creative record. This choice is essential for a small economy whose citizens' brain is the only natural resource. Canada should seriously consider doing the same.

Comments

[Geekwad]

I initially like the sound of providing courts with guidelines and letting common law do the rest. But, I wonder if setting a precident would console me if I were a teacher getting sued over my interpretation of fair use. Maybe it's too soon to declare success?

I have two responses to Geekwad's comment. The first is that any legal right, in order to be meaningful, requires people who are willing to bear the cost and risk of defending it, setting the precedent and maintaining it. This is true about constitutional rights, but also about copyrights: whether the owner's rights or users' rights.
Second, providing courts with a principle of fair use, doesn't necessarily exclude a more detailed rule-making in order to increase clarity until common law develop. In fact, Israel's new s. 19(c) allows the Minister to proscribe conditions under which use will be deemed fair. But as long as a principle of fair use remains, uses may still be found fair even if not envisaged in such regulations. This is a superior situation to the current one in Canada, wherein every use which falls outside one of the legislated exceptions is infringing.

[Dan]

You said “ …Israel's new act has revealed its copyright priorities. Overall, Israel decided to increase the flexibility of its copyright law and make it more open and friendlier to users, … “ .

Copy Rights is a finicky subject because the interpretations acquired by the infringing object compared to the original . This well known problem requires a way to well define the original hence protecting it from abuse . Naturally the only way to do this is by avoiding duplicity and flexibility in the Law .

I am sure based on historical evidence that loosely texted Copy Right Laws are only to the benefit of the charlatans , criminals and law-breakers . Let’s avoid “set-ups” like the Israeli government’s example and have well define Copy Rights laws .

Check this :

http://blog.ipfactor.co.il/2007/06/14/israel-porn-producers-sue-for-copyright-infringement/

Israel Porn Producers sue for Copyright Infringement

Filed under: Copyright, Intellectual Property, Internet, Israel, Israel Copyright, Israel IP, Israel Related, News — Michael Factor @ 7:46 pm

Lemming Producions, the makers of the 2004 porn film “Grounded on the Base” have sued the Ero Center website and its hosters for uploading the film to the website without permission.

The Case was filed in the Tel Aviv District Court and the plaintiffs are demanding 1/2 Million Shequels ($125,000 US) in damages, claiming that the work took 4 months, toil, effort, creativity and talent in the fiming, storline, choice of actors direction, soundtrack and editing. …..

[Phil Smith]

Dan, I must disagree with you on this one.

I would argue that a copyright regime which attempts to iterate through all possible cases of infringing use is far more susceptible to finding loop-holes for abuse than a regime which were to stick closer to conveying the principles and purpose of copyright to the court.

I fail to see any historical evidence that loosely texted Copy Right laws are to the benefit of "charlatans, criminals and law-breakers." If you were to take the example of Canada's Fair Dealing doctrine versus the United State's Fair Use doctrine; the Canadian approach takes a more restrictive approach and lists lengthy enumerated grounds in which the Fair Dealings Doctrine applies. In comparison, the United States has a broader, more flexible approach which lists the principles of the doctrine, and allows the courts to expand its use where appropriate.

Would you argue that the United State's approach (in comparison to Canada's) has been to the benefit of criminals and charlatans?

When faced with an allegation of copyright infringement, the court is much better situated to arrive at just results when armed with general principles rather than restrictive enumerated grounds.

[Agence casting pour Enfants]

Really interesting post!
Never stop iterating and don’t fear failure. Choose well-understood conventions where they will do to the most good , shortcuts you might take will cost you more to fix later than to try to get right up-front today.

Thanks , Zoli Juhasz

[L. Mann]

Thank you for posting about this it's very interesting.

I'm curious about your comfort with the U.S. version of the fair use defense in the light of 10 years of eloquent criticism from many US I.P. scholars (Jessica Litman, Peter Jaszi), librarians, documentary film makers, teachers, etc. These last groups are particularly those whose jobs align with the principles supposedly defended by fair use, and yet many of them appear unsatisfied.

I'm especially interested in your statement the flexibility of U.S. fair use defense to infringement "allows courts to expand its use where appropriate" because my impression of the actual situation in America has been one of contraction of fair use (or its failure to be applied to new situations), not expansion.

Of course, this is partly due to changing technology, laws like the DMCA and the extension of the length of copyright. Those changes affect the conditions under which courts make their decisions, and my impression is they have not been so great at focusing on maintaining the principles of fair use in the light of these developments.

So I'm curious about the expansion you speak of - is this a theoretical argument, is it yet to come, or is there something these scholars are refusing to see?

If it is purely a policy argument - is there some point at which the current harms that many describe will weigh enough to warrant specific protections?

[Ariel Katz]

Dear L. Mann,
Thanks for your comment. I didn't mean to provide a defense for the current state of fair use jurisprudence in the US. Rather, my point is that even if you are correct that US courts do not apply fair use as flexibly and broadly as they should, this is better than the state of fair dealing in Canada, where, because of the the statutory language and history, courts cannot be as flexible.
Just one example: time-shifting. Finding that time-shifting a la Sony v. Universal is permitted in Canada would probably require abusing the meaning of the allowable purposes in s. 29 of the Canadian Copyright Act. Sad but true.

[Michael LoCicero]

Wondering if anyone can give me some insight regarding civil cases being awarded judgement in Canada and having to collect monies and or merchandise. The defendants reside in Israel. Thank you for help you may provide.