In May 25, 2008, the long awaited new Israeli Copyright Act came into force. Following herein below is a brief overview of the novel issues in the new Act (which is not an exhaustive list of the changes):

Ownership

Employment relationship- The employer shall be the owner of a copyrighted work if the work was made for the purpose of the employee's function of his job, and in the course of the employee's work. The first requirement did not exist in the previous Act. While it is unclear how courts will interpret it, it definitely limits employers' rights.
Contracted works - The copyright owner shall be the person who created the work, unless agreed otherwise between the person who ordered the work and its creator, explicitly or impliedly. The last part of this new provision ("impliedly") leaves wide discretion to courts to determine the ownership on a case by case basis. This leaves the question of ownership in contracted works vague and hard to determine.

Fair Use

Under the new Act, the list of circumstances in which the fair use defense may be invoked is left "open" (unlike the old law which provided a narrow "closed" list). The list of examples provided in the new Act is as follows: self studying, research, criticism, review, newspaper summary (all applicable under the old law); and two new examples: providing excerpts, and use in the course of teaching or examination by an educational organization. Apart from judicial discretion to widen the list, the Minister of Justice may also decide on additional specific circumstances of fair use.

New Specific Permitted Uses

The new Act provides several new permitted uses of a work, including the following categories:
- Use for the purpose of legal proceedings or reports thereon.
- Certain uses (such as photography) of some artistic works which are affixed in a public space.
- Certain public displays of works by an authorized educational organization.
- Photocopying by libraries for individuals who are permitted to perform such photocopying (for example-photocopying for students) and for preservation purposes.
- Use of architecture plans for the purpose of re-building or renovation of a building.
- Recording for the purpose of an authorized broadcasting.

Statutory Damages

The Act cancelled the minimum amount of statutory damages (which was NIS 10,000) courts may rule, and raised the maximum amount from NIS 20,000 (approximately US$ 5,800) to NIS 100,000 (approximately US$ 29,000). The amount may be determined by the court according to several criteria, including the "mens rea" of the defendant. In addition, the new Act provides that violation of moral rights shall also entitle the plaintiff to statutory damages (something which was not available under the old law). The higher amount of maximum statutory damages shall definitely have a deterring effect on infringers.

Injunctions

A successful plaintiff in a copyright infringement litigation shall be entitled to an injunctive relief, unless the court deems that the circumstances justify to deny it from the plaintiff. Again, this provision provides broad discretion to courts on an issue which was mandatory, and it is left to see how courts will apply it.

Information Technology Related Issues

There are several interesting provisions which specifically relate to information technology issues:

- A new right of "making available to the public" was added. This right is applicable mostly with respect to prohibition of internet file-sharing.

- Creating a copy of software is permitted in the following circumstances:

(a) Copying for backup purposes;
(b) Copying for the purpose of maintenance services in relation to an authorized copy of the software, if it is required in order to use the software;
(c) Copying for the purpose of fixing bugs, checking and fixing security breaches and obtaining information which is necessary in order to create a compatible software.

- Creating a temporary copy of a work is permitted as long as it is done as an inseparable part of a "technological process", which is solely intended to enable transfer of the work in a telecommunications network or to enable a permitted use of the work, as long as the temporary copy has no economic value in and of itself.