ISRAEL Law and Practice Contributed by: Ronit Barzik-Soffer, Luiz Blanc and Rakefet Peled, Reinhold Cohn Group
9.2 Defences to Copyright Infringement (Fair Use/Fair Dealing) The use of a business name, a geographical location or a personal name will not constitute trade mark infringement as long as it is in good faith and only necessary to identify the user. The use of a trade mark merely for providing a true description of the character or quality of the goods is permitted if the following conditions are met: • it is burdensome to identify the goods without using the mark and the use is necessary for identification; • the use is reasonable and no more than is necessary to identify the goods; and/or • the use does not create the impression of commercial sponsorship. While unauthorised use of a registered trade mark for advertising constitutes infringement, it was determined by the Supreme Court that truthful comparative advertising serves the prin - ciple of free speech when it presents accurate facts about products or services, and it may be permitted if the use of the mark is strictly informative. The Copyright Act recognises the fair use excep - tion. Fair use of a work for certain purposes will be considered as use of the work that does not require the permission of the copyright owner. Section 19 lists examples of purposes that may be considered “fair”, such as private study, research, criticism, news reporting, quotations, instruction and examination by an educational institution. Section 19 also provides the param - eters that should be considered in respect of the scope of “fairness” of use:
• the purpose and character of the way the work has been used; • the character of the work used; • the scope of the use in relation to the work in its entirety; and • the impact of the use on the value of the work and its potential market. In addition, the Act includes “specific permit - ted uses” such as the use of works in legal or administrative proceedings; the use of works that are publicly accessible; the broadcasting or reproduction of works which are situated in public places; and temporary copying of com - puter programs for back-up. Regarding “parody” – court cases recognise “parody” as falling under the allowed use of “criticism”, as long as the use can be considered “fair”. For example, in specific circumstances, use of a work in a parody advertisement was considered “fair use”. According to courts cases, the balance between freedom of speech/expression and copyright is assessed within the framework of the fair use exception. The defendant may also claim that they are an “innocent infringer”. According to the Act, where a copyright has been infringed, but the infringer did not know, or could not have known, at the time of the infringement, that copyright subsist - ed in the work, the infringer will not be obliged to pay compensation in respect of said infringe - ment. A mistake regarding the question of “who” is the rightful owner of the copyright does not establish this defence.
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