Last week, the District Court of Jerusalem enforced a Creative
Commons license against a commercial user of photographs [C 3560/09 Avi Reuveni v. Mapa Publishing
Ltd. Hebrew PDF]. The Court ruled that the infringement of
15 copyrighted photographs should be considered as 15 separate acts
of infringement, rather than a single joint act. The decision
marked the first time in Israel that a court has enforced a
Creative Commons license. Pearl Cohen Zedek Latzer represented the
plaintiffs in this pioneering case.
The plaintiffs, Mssrs. Avi Reuveni and Amir Rivlin, uploaded
photographs they had taken during a journey to Jerusalem to
Flickr.com. The photographs were published under a Creative Commons
license which permitted non-commercial use, prohibited derivative
works and required attribution. The defendant, Mapa Publishing,
copied and used the photographs in a book it published, without
receiving authorization from the plaintiffs and without proper
attribution. One of the photographs was also published on the
defendant's website.
Judge Zvi Zylbertal had no doubt as to the plaintiffs'
copyrights in the photographs and the infringement of those rights
by the defendant. The Creative Commons license covering the works
was merely mentioned in passing, and was accepted as a valid
license that was breached. The main question was the sum of damages
to be awarded and how it should be calculated – both
sides presenting different interpretations of the Copyrights Act
2007. The court sided with the plaintiffs and ruled that a separate
act of infringement is committed for each photo. This conclusion
relied on the logic and purpose behind clause 56(c) of the
Copyrights Act, which is primarily to deter such infringements. The
court stated that there is no justification for regarding all 15
photographs as one work of art, seeing as each photograph describes
a different object, was taken at a different time, and by a
different person (either of the two plaintiffs).
The Court awarded the plaintiffs a total of NIS 47,000 (US $12,500)
as damages: NIS 3,000 (approximately US $800) for each of the 15
infringements in the book, and NIS 2,000 (approximately US $650)
for the publication of a single photo on defendant's website.
Judge Zylbertal considered, amongst other issues, the fact that the
plaintiffs are not professional photographers who earn their living
from photography, and that the defendant removed the infringing
books from circulation. However, he did weigh against the
defendants the fact that they are book publishers that are expected
to comply with copyright laws more stringently than others.
The defendant was also ordered to cover half of the plaintiffs'
court fees, and bear the plaintiffs' legal costs in the amount
of NIS 9,000 (US $2,400).
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