ISRAEL Law and Practice Contributed by: Ronit Barzik-Soffer, Luiz Blanc and Rakefet Peled, Reinhold Cohn Group
3. Copyright Ownership, Protection and Rights 3.1 Types of Copyrightable Works Works eligible for copyright protection under the Copyright Act are: literary works (including works expressed in writing, lectures, tables, compilations and computer programs), artistic works (including drawings, paintings, sculptures, engravings, lithogra - phy, maps, charts, architectural works, photographic works and works of artistic craftsmanship including typefaces), dramatic works or musical works. Regarding industrial designs – the Copyright Act stip - ulates that there will be no copyright in an industrial design as defined in the Patents and Designs Ordi - nance or as defined in the Designs Law, 2017-77, unless the design is not used and is not intended to be used for industrial manufacture. 3.2 Essential Elements of Copyright Protection The elements required to qualify for copyright pro - tection for artistic works, dramatic works or musical works are “originality”, “fixation” and a connection of the work to Israel: • “Originality” is not defined in the Copyright Act. Court cases have addressed the question of originality, moving along the years from a “labour” doctrine (minimum amount of work and effort) to a “creativity” doctrine (minimum intellectual contribu - tion), and lately requiring both labour and creativity as a condition to copyright. • “Fixation” – this rule has evidentiary purposes. • The Copyright Act protects works that have a certain “connection to Israel”. This means: (i) the work was first published in Israel; or (ii) at the time of the work’s creation, its author was a citizen of the State of Israel, or their habitual residence was in Israel, regardless of whether the work was pub - lished in Israel. In addition, if a treaty has been signed between Israel and another country, or if Israel has joined a treaty in this regard, the minister of justice may determine that works whose protection is required by the treaty in
which are not of the same description, if the use by someone who is not the owner may indicate a con - nection between those goods and the registered owner and, consequently, the registered owner may suffer damages. 2.4 Use in Commerce Under Israeli law, there is no pre-registration or post- registration requirement for proving use. However, a registered trade mark that has not been in use in Israel for three consecutive years might become vulnera - ble to cancellation on the grounds of non-use, in the absence of special justifying circumstances. Use of a mark in a purely descriptive manner may prevent a pending application from being registered or lead to cancellation of a registered trade mark, on the grounds of descriptiveness and non-distinctiveness. 2.5 Notices and Symbols The symbols “TM” and ® may be used to indicate trade mark use and registration (respectively). Marking is not mandatory. Falsely indicating that a product is protected by trade mark registration (eg, by using the ® symbol), is a criminal offence. 2.6 Related Rights A trade mark may also be protected by copyright law, if the conditions set by copyright law are met (eg, in the case of a unique logo). The registrar may refuse the registration of a trade mark identical or confusingly similar to a person’s name or business name, if it is likely to deceive the public or cause unfair competition. A trade mark registration will not prevent a person from use in good faith of their name or business name. A mark that has a picture of a person on it will not be allowed unless the consent of the person concerned has been obtained. If the person has died, the regis - trar will require the consent of their relatives, unless the registrar is of the opinion that there are reasonable reasons not to require this.
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