Supreme Court applies Copyrights Contributory Infringement

On June 20, 2011, the Israeli Supreme Court handed down a decision that adopts the doctrine of copyrights contributory infringement in Israel.

In a judgment rendered in Civil Appeal 5977/07 the Hebrew University of Jerusalem v. Shoken Publishing House et al. the Supreme Court held that the appellant, the Hebrew University of Jerusalem was not liable for copyrights contributory infringement.

Respondent, Shoken Publishing House is the publisher and the copyright owner of a book titled “Traditional Japan” by Prof. Ben-Ami Shiloni. Copies of that title were photocopied and sold to students in the university campus by Mr. Yaakov Cohen, who served as the head of the OFEK students’ organization which is associated with and sponsored by the Labor Party.

Modern Japan by Prof. Ben Ami Shiloni

In the first instance, the Jerusalem District Court, held that the University was not liable for direct copyrights infringement, but found the University liable for contributory copyrights infringement by failing to exercise control over the activities of the students’ organization, by not preventing the infringing sale and by supplying the platform for the sale of the infringing copies.

The Supreme Court reviewed the Israeli Copyright Act 2007 which provides in section 47 for direct infringement of copyrights by any person, who without the permission of the copyrights owner performs one of the actions that are excluded to the copyrights owner under section 11 of the Act or allows other person to perform them. The Court indicated that the Copyright Act provides for contributory infringement only in the specific circumstances of a person who allows third party, for profit, to use an “entertainment public institute” (e.g., theater, restaurant, cinema, etc.) for the public performance of a copyrighted work without the consent of the copyright owner. The Copyright Act does not provide for a general wrong of contributory infringement of copyrights.

The Supreme Court then reviewed the conflicting interests of the copyrights owners, the end users, and the public in general, and analyzed the pros and cons of adopting the contributory infringement doctrine.  The Supreme Court stated that “it is worthy to apply the contributory infringement in order to reward the author for the efforts invested in the work; to allow adequate protection to the rights of the authors in the era of anonymous users; and to supply the required incentives necessary for the continued production of new works…there is no place to allow a middle factor that significantly contributed to the copyright infringement to escape liability. The interests of the users and the general public do not contradict the application of contributory infringement. However, as will be clarified, those interests dictate the prudent and narrow application of the doctrine, only under specific circumstances and in limited exceptional cases.

The Supreme Court established the application of the contributory infringement doctrine on two grounds. First – the Copyright Act and second, the general liability of contributor, inducer or accomplice, provided in section 12 of the Torts Ordinance.

The Supreme Court held that three conditions should be met in order to establish contributory infringement:

  1. Direct infringement must occur. The Supreme Court clarified that it is not necessary to sue any direct infringer; however, Plaintiff must establish that direct infringement took place. The Court further noted that contributory infringement may be found even if the direct infringers have defense against the infringement (such as fair use);
  2. The contributory infringer must have actual knowledge of the infringing acts;
  3. The contributory infringer must make a significant and prominent contribution to the performance of the infringement. The acts of the middle factor should constitute integral and significant part of the infringing activities, e.g., inducement, promotion or providing the means enabling performance of the direct infringement.

The Supreme Court then reviewed the conduct of the University and found that the third condition was not met. The University did not promote or actively induced students to perform the infringing acts. Further, the University did not lay the platform for the performance of the infringement. The sole contribution of the University manifested in its failure to prevent the infringement and its omission to actively stop the infringing act. The court held that this was not sufficient in order to establish contributory infringement.