How Does Fair Use Fare as Legal Transplant? Lessons from Israel / Neil Weinstock Netanel


Wed, 25/04/2018 - 15:00 to 16:30


Yael room, Institute of Criminology

Abstract of the research by Prof. Niva Elkin-Koren and Prof. Neil Weinstock Netanel:


In 2007 Israel’s parliament enacted a new, completely revised copyright statute. Israel’s Copyright Act 2007 includes a provision that very closely parallels the fair use provision set out in Section 107 of the US Copyright Act. In transplanting US fair use into Israeli law, Israel’s parliament built on a 1993 Israeli Supreme Court decision in which the Court applied the four factor test of fairness from the US in interpreting fair dealing under the then Israeli Copyright Act. The United States Trade Representative and copyright industries actively lobbied against adoption of fair use in Israel, arguing that without US judges’ century of experience in applying fair use, Israeli courts would run amok in their fair use decisions, destabilizing and undermining copyright protection in the process.

Our paper is an empirical study of all Israeli court fair use and fair dealing rulings, both before and after Israel’s Copyright Act 2007 took effect. In so doing, we compare Israeli fair use case law with that of US courts during the same period, focusing particularly on the years since fair use was adopted into Israeli law. In seven years – 2008-2015 – Israeli courts granted approximately 48 rulings that address fair use.

Our preliminary data suggest that Israeli courts have actually been more restrictive in their application of fair use than contemporary US courts. Israeli courts overwhelmingly rule in favor of copyright owner plaintiffs on fair use, while US courts tend to favor fair use defendants. In so doing, Israeli courts tend to place greater weight on whether the defendant’s use is commercial, while for US courts if the use is transformative, that readily outweighs its commercial character. Indeed, the transformative use doctrine has thus far found little expression in Israeli case law. Lastly, Israeli courts regularly deny fair use for failure to give authorship credit.

We offer several hypotheses why Israeli courts have followed this more restrictive approach and draw some tentative conclusions about what Israel’s experience with legal transplant of fair use might predict with respect to other countries’ adoption of US fair use or a similar open-ended exception to copyright.