User:Drork/Fallacies in Pieter Kuiper's FoP in Israel

The following is an explanation about the invalidity of Pieter Kuiper's account on the Freedom of Panorama in Israel. Unfortunately, some pages on Wikimedia Commons dealing with the Israeli copyright rules and regulations refer to Kuiper's account.

It should be noted that Mr. Kuiper is not a lawyer, let along an Israeli lawyer. He also does not speak the local languages of Israel, hence he is unable to read the relevant statutes, ordinances and court rulings in their binding versions. It is also important to note that I am not a lawyer either, however there are simple logical fallacies and false information in his account.

1. PK: In Israel, copyright has not been among the government's top priorities. - In Israel, as in any democratic country, the legislative process is entrusted with the parliament (known in Israel as the "Knesset"). Interpretation of the laws is provided by the judicial system. The Government can initiate legislative processes, and it indeed initiated such process that led to a new updated copyright statute, which is in force since May 2008. The legislation process started in November 1996 with the establishment of a special parliamentary committee for this end. The committee and its professional subcommittees produced a detailed report (unfortunately available only in Hebrew) that was issued in April 1997. The process continued with numerous hearings in various levels, and took about ten years to complete. In the meantime, temporary amendments to the old copyright statute were introduced. Many drafts were presented until the final version of the new copyright law was approved. Mr. Kuiper refers to an article by Debbie L. Rabina of the Bar Ilan University in Ramat Gan, Israel, but her article is outdated, having been written before the enactment of the new statute, and furthermore, its content does not support Kuiper's claims whatsoever.
2. Mr. Kuiper fails to make the crucial distinction between patent statutes and copyright statutes. These two categories has been treated as distinct for many decades due to historical and practical reasons. Some countries consolidated their copyright and patent statutes, some did not, but in any case, the patent and copyright categories are exclusive, i.e. a patent-protected work is not copyrighted and vice versa. Hence, a policy regarding patent regulations does not entail similar policy regarding copyrights. Furthermore, Mr. Kuiper refers to complaints of international organization about certain policies of Israel, however Freedom of Panorama is an internal issue upon which each country decides for itself. Hence, policies with regard to internationally protected copyrights have nothing to do with FoP.
3. As an example to FoP, Pieter Kuiper brings a West Bank fresco, which is in fact a propaganda on behalf of Hamas. The fresco says "Each year there will be new Gilad Shalit". The West Bank is not part of Israel, even though parts of it are subject to Israeli rule.
4. Justice Noam Solberg ruled in 2006 that a photography of sculpture or architectural work is permitted (paragraph 11 of the ruling), hence the legal discussion moved to other claims, such as violation of privacy regulations while taking the photo etc. The honorable judge did not pass any judgment regarding other works permanently displayed in public, as he was not required to do so with regard to the case brought before him. A prohibition cannot be entailed from this ruling, because a judge is not required to detail all permitted actions somehow related to the matter at hand. He should only refer to the legitimacy of the action brought before him. Furthermore, the ruling is based upon the obsolete statute.
5. Mr. Kuiper brings the case of Amir Weinberg vs. Eliezer Weisshoff. This case does not involves FoP, but it deals with the making of a 3D work from a 2D photograph. The ruling that Mr. Kuiper refers to was overturned by a superior court after an appeal. The appellate court's ruling is supposed to be final, but the photographer, Amir Weinberg, asked for a special permission to submit a second appeal. I found no report or announcement that such permission was granted. In short, even if this ruling have some relevancy to our discussion, it is not consensual nor final, and therefore has no value.
6. It is quite unclear on what ground Mr. Kuiper criticizes Prof. Presenti, saying her opinion is unreasonable, considering the fact that she is a respectable jurist often quoted in Israeli courts' rulings about copyrights. Kuiper is not a lawyer, and his knowledge of the Israeli law is very superficial, hence he is not in a position to criticize the words of Israeli jurists.
7. The international copyright conventions do not restrict FoP. This is left to any country to decide for itself by its own legislation. Israel may have a unique FoP rule, but this should not be a source of astonishment. Any country "fine-tunes" its laws according to local norms and customs. Once again, Kuiper interprets the international conventions as if he were a professional lawyer, while he has no such proficiency.

Drork (talk) 05:45, 27 September 2010 (UTC)