On May 13, 2012, the Supreme Court of Israel gave a landmark decision in Civil Appeal 9183/09 The Football Association Premier League Ltd v John Doe. The Court overturned a controversial decision by Judge Michal Agmon-Gonen of the District Court in Tel Aviv-Jaffa. In that case, Judge Agmon-Gonen used the mechanism of legal transplantation to introduce into Israeli copyright law the doctrine of users’ rights similar to that laid down by the Canadian Supreme Court in the CCH case.
The English Premier League requested that internet providers reveal the name of an unknown person who infringed their copyright through online streaming of football games (known as soccer in North America). The unknown individual managed a website – LiveFooty – where he streamed live sporting events. On his website, he wrote: “Hi all! I have created this site, as my personal aim, to be able to watch LIVE football/soccer, basketball matches, etc, without having to pay a cent! Now you can enjoy this too. With LiveFooty, you can watch all the interesting sporting events FREE”
Streaming on the Internet, whether on-demand or live, has become a fundamental channel for communication, sharing of information and as a supplement to traditional downloading. Despite these social advantages, streaming creates serious legal problems. It can amount to an infringement of several of the copyright owner’s exclusive rights, such as the right to communicate the work to the public, and the right to reproduce the work. Despite this, Judge Agmon-Gonen rejected the Premier League’s request and declared that the streaming in this case was lawful and did not infringe copyright, because it did not comply with the statutory definition of broadcasting, and the streaming of live sporting events to the public has a social goal. This brought her to re-balance copyright and declare that users, as opposed to the situation before the enactment of the 2007 Copyright Act, have rights.
On appeal, the Supreme Court overturned the District Court’s decision. The Court held that, although the actual sporting event is not protected by copyright, the production and shooting of such an event is an original work. Streaming is an act of broadcasting within the meaning of section 14 of the Copyright Act. The Court rejected the users’ rights doctrine noting that: “The legal language used in the 2007 Act gives no indication that the legislature’s goal was to recreate the existing balance in copyright and transform defences to rights”. The Court held that streaming of soccer is an infringement and our John Doe cannot find rescue in the fair use doctrine.
Although the Supreme Court was unanimous with regards to the case for infringement, it was divided with regards to revealing the identity of the infringer. The majority agreed that, under the current law, the identity of the person cannot be disclosed. Consequently, the Premier League won only a partial victory. This partial happiness cannot take the Premier League to the bank, because John Doe is still John Doe.
Although I think the Court was right in finding that streaming of a live sporting event is not innocent, I cannot agree with the reasons for rejecting the users’ rights doctrine. Judge Agmon-Gonen was pioneering in her judgment and legal transplantation is a living organism within the Israeli legal system. That was how the Supreme Court imported the US fair use doctrine into Israeli law. Furthermore, the social and cultural implications of strict and narrow interpretations of the newly enacted fair use doctrine dismiss the advantages in this open-ended doctrine; it may end up with unnoticeably re-enacting the closed list of exceptions of the fair dealing doctrine which the legislature found too limited.
Still, on the eve of the Olympic Games and the recent rulings of the Canadian Supreme Court on fair dealings, it remains an interesting question whether streaming of track & field events amount to a user right within the meaning of Judge Agmon-Gonen’s ruling. Speaking of the Olympic Games and Israel, it is interesting to note, from another perspective, a recent confusing decision of the same court issuing an injunction preventing the Israeli Olympic Committee from using a character – Shpitzik (on the left) – as a mascot because it infringes the rights of Israel Education Television in one of their kids TV stars, Kishkashta (on the right) – a singing cactus.
Dr. Lior Zemer is a law lecturer at the Interdisciplinary Center (IDC) of the Radzyner School of Law in Herzliya, Israel. He is also a Visiting Associate Professor at Boston University School of Law. A more detailed publication by Dr. Zemer will follow in the Intellectual Property Journal (IPJ) later this year.