Friday, November 30, 2007

New Israeli Copyright Law passed

A new Copyright Act was passed by the Knesset (the Israeli Parliament) last Sunday. The law can be read here (Hebrew - there's no official English version). It replaces a 1911 British law which was sorely in need of an update. (Extrapolating software copyright from state licensing of printing presses can lead to some truly weird results.) Blogsphere coverage is sparse (good news is no news), but here and here are a couple of other posts. The short version: a well-balanced law that creates new rights, freedoms and exceptions for the public instead of taking them away.

IANAL and the following is very, very far from being informed legal analysis. Call it informed wild legal speculation. I want to highlight some features of the new law, which appears to be reasonably balanced - probably as much as it can be while remaining in compliance with international treaties.

This is especially important in a time of ever-spreading DMCA-like laws. We had our own super-DMCA proposed last year by a member of the small left-wing party Meretz. Luckily, the government cared enough and was sane enough to pass this law instead.

Here are some of the major provisions of the new law. All translations to English are by me, who once again am not a lawyer. Also, I've omitted a lot of stuff which is either the same as in every other country, or only relevant to things other than software, books, music and movies.

Copyright terms last for life + 70 years, but music only gets 50 years, total (not life + 50, just 50 from the moment of publication). European-style "author's moral rights" are recognized. Non-exclusive copyright licenses don't have to be in writing and can be implied. Ideas, processes and methods, mathematical theories, facts, data and news are not copyrightable (but unique ways of expressing them are). The sample implementation that's supposed to accompany a patent request is not copyrightable.

Illegal copying for monetary profit or on a commercial scale is a criminal offense, punishable by up to 5 years in prison and fines; illegal copying for private use is a civil offense, punishable by up to 100,000 ILS in fines without proof of damages (but only once per "group of violations", not e.g. per each file copied). Crucially, selling illegal copies is a violation of the law, but buying or posessing them is not (although a court might order the illegal copies themselves to be handed over - I'm a bit unclear on this).

The following actions are among those explicitly allowed to any possessor of a legal copy:

  1. Fair use: for study, research, criticism, journalistic reporting, reviews, overviews, excerpting, and teaching in a recognized educational institution. The courts may add more, considering the effect that the use has had on the work's market value and so on.

  2. Incidental inclusion in another work, like snatches of background music in a film (but not the film's actual score).

  3. Photographing or otherwise recording architecture or a work of art that is displayed in a public location.

  4. Copying software (not other digital media) for backup, installation, and maintenance.

  5. Copying and modifying software for the following purposes:

    1. To allow the intended use of the software, through bugfixing and adaptions to other software.

    2. Security analysis and fixes.

    3. Reverse engineering for interoperability.

  6. Temporary copying which is required as part of a technological process to enable any otherwise legal use of the protected work, or to transport the work over a network (while creating temporary copies at intermediate network nodes), is permitted as long as the temporary copies have no significant commercial value of their own.

  7. A work of art can copy or derive from a previous work by the same author, even if the author has signed away the copyright for his previous work.

Also, mandatory licensing for music is possible (I don't know if it actually exists or will exist), and public libraries and state-recognized educational institutions are granted some pretty broad exemptions.

The passing of this law means we're reasonably safe from DMCA-like prohibitions on reverse engineering (and making compatible printer ink cartridges and garage remote controls): the law specifically allows reverse-engineering. In fact we can even modify our copies of proprietary software not to produce proprietary formats in the first place (heh), like modifying MS Word to export ODF by default. We can also fix bugs in said proprietary software when Microsoft refuses to.

The following parts are more speculative since they include some legal interpretations on my part, but time-, space-, and format-shifting (including removing DRM) seem to be allowed. The law is vaguely worded for my taste, but it does allow temporary copies "needed as part of technological processes for legitimate use of the protected works". That seems to include ripping CDs, needed fot the legitimate use of playing purchased music on my mp3 player.

Also, shrinkwrap licenses and usage-restricting EULAs are probably irrelevant. Firstly, I don't need a special license for the incidental copying of software to my hard disk or RAM that is necessary to run it. Secondly, I might be allowed to modify the software to run even when I don't click 'I Agree', or to write my own EULA-less installer. The courts will have to rule on this, I guess.

Of course the law is far from perfect. But it's quite good, compared to what most other Western countries have. Apparently there's a further draft law being circulated by the government that would create a DMCA-like safe harbor provision for ISPs. That's the procedure whereby they remove your site because someone tips them that you're violating copyright, without asking them for proof or you to defend yourself. But at least we shouldn't need to fear a DMCA-style anti-circumvention law now.

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