Israeli Fair Use from an American Perspective

Abstract:     
This is a chapter (in Hebrew) in an anthology on Israel's recent comprehensive copyright statute revision, the Copyright Law-2007. The chapter focuses on Section 19 of the new law, which closely tracks Section 107, the fair use provision, of the U.S. Copyright Act. In codifying U.S. fair use doctrine, Israel's legislature has replaced the narrower "fair dealing" doctrine found in Israel's prior copyright statute, the Copyright Law-1911, making Israel only the second country, after the Philippines, to adopt U.S. fair use law in its copyright statute. Moreover, Israel's new copyright statute essentially completes the move from fair dealing to fair use that the Israeli Supreme Court had already initiated in 1993 in its ruling in Geva v. Walt Disney Co.

Of great significance for how fair use will be applied in Israel, American case law and commentary features two distinct, mutually opposing understandings of the fair use doctrine. The "market approach" views fair use as a narrow, anomalous exception to the copyright holder's exclusive and broad proprietary rights, an exception available only in instances where voluntary licensing is prevented by insurmountable market failure. In contrast, the "expressive diversity approach" views fair use as a central component, not an anomalous exception, to the copyright regime. It places great weight on whether the defendant's use is "transformative," in other words whether the use serves a fundamentally different purpose than that for which the plaintiff's copyrighted work was created and whether that purpose serves copyright law's overall goal of promoting the dissemination of knowledge and a diversity of expression.

In recent years, the expressive diversity approach appears to be in the ascendancy over the market approach in U.S. case law, as evident in cases such as Bill Graham Archives v. Dorling Kindersley Ltd. and Perfect 10 v. Amazon. It remains to be seen whether this trend will continue. In any event, given the Israeli Supreme Court's analysis in Geva v. Walt Disney Co., which approvingly cited U.S. case law favoring transformative uses, and Interlego A/S v. Exin Line Bros., which held that copyright's purpose is to promote expressive diversity and that copyrights must be appropriately tailored to serve that end, Israeli courts should be considerably more receptive to the expressive diversity approach to fair use than to the market approach.

Note: Downloadable document is in Hebrew.

Keywords: copyright, fair use, expressive diversity, Israel

JEL Classifications: F02, F15, 010, 034

Accepted Paper Series