User:Pieter Kuiper/Freedom of Panorama in Israel

Freedom of Panorama is often debated on Commons, as at differs so strongly between different countries. Some countries have no exceptions for publicly visible, permanently situated art. In Belgium there is no FOP at all - an image of the Atomium on a private web page can trigger the collection agency. In other countries such images are fine for non-commercial use, which is not free enough for the stringent requirements on Commons. This page deals with the legal situation in Israel. For a speculative view, see Commons:Freedom of Panorama in Israel by User:Deror avi. For a comment by a free-information activist, see here.

Background[edit]

In Israel, copyright has not been among the government's top priorities. This has led to complaints that the country is not fullfilling its obligations according to the international treaties that it is a party to.^[1] In 2002, the US Trade Department still had Israel on its priority watch list for concerns about pharmaceutical patents, piracy of business software, and broadcasting of US music recordings.^[2] International pressure contributed to the replacement of the old British Mandate law by more up-to-date legislation.

The old law[edit]

Until very recently, copyright in Israel was regulated as under the British Mandate, according the 1911 UK copyright act, with some changes.^[3] Also after independence, Israeli judges used to follow English precedents. In 1980, the Knesset spoke out against this, but that did not have much effect.^[4] Consequently, Israeli law on copyright exemptions for works in public places was very similar to most countries in COM:FOP#Commonwealth. This means that the definition of public places or buildings is broad, but that the class of artistic works is limited to 3D works like architecture, and to permanently situated sculpture and works of artistic craftmanship:^[5]

§ 2 (1): ... the following acts shall not constitute an infringement of copyright:

...

(iii): The making or publishing of paintings, drawings, engravings, or photographs of a work of sculpture or artistic craftsmanship, if permanently situate in a public place or building, or the making or publishing of paintings, drawings, engravings, or photographs (which are not in the nature of architectural drawings or plans) of any architectural work of art.

I know of one Israeli court case where this Freedom of Panorama was brought up. It was about images of a façade, adjudicated in 2006 by Noam Solberg.^[6]^[7] He ruled that there was no copyright violation in that case. It may have been an image like this one. No court decisions are known that deviate from the interpretation in other countries with British-style FOP-provisions. The scholarly works in Israeli copyright by Sarah Presenti (2000) or by Tony Greenman do not indicate any local peculiarities either.

In the West Bank, the Mandate law is still in force.^[8]

The new law[edit]

The Mandate law was replaced by a new Hebrew law in 2008 (published 2007). The Ministry of Justice prepared a translation that the Israeli government submitted to WIPO and WTO, but only the Hebrew text is authoritative.^[11] Among the novelties is a fair-use paragraph, but the rules for FOP were supposed to stay the same. The relevant portions are the definitions of artistic and literary work in article 1 and the FOP exemption in article 23:

"Artistic work" – including, drawings, paintings, works of sculpture, engravings, lithography, maps, charts, architectural works, photographic works and works of applied art;

"Literary work" – including works expressed in writing, lectures, tables, compilations, and also computer programs.

23. Broadcast or copying of work in public place – Broadcasting, or copying by way of photography, drawing, sketch or similar visual description, of an architectural work, a work of sculpture or work of applied art, are permitted where the aforesaid work is permanently situated in a public place.

The general rule is that only the copyright holder can allow derivative works of artistic works, but there are exceptions for derivatives with reduced dimensionality. The law permits making 2D projections of those 3D artistic works that are permanently installed in public places. Because of this article, making and selling postcards of sculptures and fountains in city squares is permitted without asking the artist. One may also make a television program about a building without paying anything to the architect. But this article does not permit marketing scaled-down versions of the city fountain as garden decorations. And, clearly, 2D-copies of two-dimensional artistic works like drawings, paintings, and maps are not in the list of exceptions of article 23. Neither are literary works.

Exemptions for libraries and archives[edit]

Article 30 of the law permits limited reproduction by archives, public libraries and libraries of educational institutions. These institutions may make backup copies (not for lending), replacements of lost copies, also for other libraries. They may make copies for authorized users, and they may make copies for preservation of the originals. Museums are not mentioned here. Nothing suggests that museums would be allowed to make postcards or posters of copyrighted works for sale to the public without asking the copyright holder for permission.

אמנות שימושית - "useful art" - a loophole?[edit]

In the Hebrew original of article 23 the term "omanut shimushit" (אמנות שימושית) is used for en:applied art. This is not abstruse legal jargon, it just denotes the art genre of en:Objets d' art. There is a book by Noga Weiss called "Omanut Shimushit" - on its cover one can see what the book is about. It is a common Hebrew term.

But deconstructing the parts of this term, its meaning would become "useful art things". It has been proposed that this would open Freedom of Panorama for any artistic work that one could find some use for. Of course, this would be twisting the law. Article 23 makes clear that אמנות שימושית is distinct from architecture, and the definition of "artistc works" in article 1 makes clear that it is distinct from paintings, drawings, and maps.

The ordinary meaning of "applied art" is the correct reading of the law. This is confirmed by protocols of the legislative proces. In a committee, several members of the Knesset wanted a stronger protection for the rights of artists. A few of them (especially en:Limor Livnat) were in favor of introducing a non-commercial restriction. The politician en:Dov Khenin feared that the term אמנות שימושית would open article 23 for abuse, because also photography could be seen as useful. He wished for a definition. Tamir Afori, who was the copyright expert in the Ministry of Justice responsible for drafting the law proposal, responded that photography was a distinct category.^[12]^[13] Furtheron in the discussion Livnat came back to the idea that painting and sculpture should have non-commercial restrictions. Afori replied that article 23 does not apply to drawings, that it only applied to sculpture, architecture, and useful 3-dimensional objects, and that the very specific list in article 23 (architecture, sculpture, applied art) did not include painting, photography, etcetera.^[14]

Of course, it would be possible to try a far-fetched meaning of the Hebrew term for "applied art" as a defense in court. But it does not seem likely to succeed. It was not even tried in this case involving a portrait of Yitzhak Rabin, although the photo must have been on display at the Rabin Center (it was in the Center's logo). Also, there are alternative defenses available, like "{{Fair use}}" (article 19) and the "innocent infringer" (article 58). Some like to emphasize that Afori did not possess legislative powers. But for us on Commons, it is the best source of knowledge currently available. It would not be wise to ignore his words.

Sarah Presenti's opinion[edit]

In the 2009 edition of her book "The Law of Copyright", Sarah Presenti treats the revised Israeli copyright law. She writes:"It is allowed to make or publish a drawing, sketch, development or photographs including architectural sketches of all works of art located in a public location." She writes כל יצירה אמנותית ("all artistic works"), using the exact same Hebrew words as in the definition of artistic works in article 1: "including drawings, paintings, works of sculpture, engravings, lithography, maps, charts, architectural works, photographic works and works of applied art."^[15]

Taking this wording literally, emphasing "all", is not reasonable. It is not supported by references to court decisions. It goes against a simple reading of the law text, against the expert opinion by Tamir Afori, against the continuity with Mandate law, and it is not confirmed by the book of Tony Greenman. It is not established law. It is better to assume that she meant to say that the enumerated categories of artistic works could be freely reproduced in graphics. Indeed, she confirmed this in response to a question by email.^[16]

In an international perspective, Israel would be unique in not protecting two-dimensional works that were exhibited inside art museums and other public buildings. It would seem that this goes beyond the international obligations that also Israel agreed to: Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder. (en:Berne three-step test) Exceptions should be clearly defined and narrow in scope and reach.^[17]