Israeli Copyright Law: A Positive Economic Perspective

Abstract

The purpose of this Article is to critically analyze and examine positive Israeli copyright law under the paradigm of law and economics. The Article reviews several central and influential decisions of Israeli Supreme Court in the area of copyright law. It then analyzes these decisions in a manner that critically evaluates the reflections and impacts of the law and economics school on positive Israeli copyright law. Within this framework, the Article focuses on a selected number of cases and topics, including the Israeli Supreme Court's interpretation and application of the originality requirement and the fair use exemption. As the discussion in the Article indicates, several important decisions of the Israeli Supreme Court have indeed applied, either explicitly or implicitly, utilitarian considerations while implementing economic analysis as a focal of Israeli copyright law. One interesting observation that arises from our survey is that at least in some cases, there is no correlation between a declaratory judicial implementation of economic considerations and the desirability of the court's decision in terms of its efficiency. In several cases, while the Supreme Court applied economic considerations as its proclaimed normative compass, the outcomes of the court's decisions seem inefficient; whereas in other cases in which courts applied non-economic theories as their corner stone (while neglecting emphasis on economic considerations) the results were found to be economically efficient.

A Theoretical Analysis of Orphan Works

“…147 In our discussion, we also took some inspiration from the Israeli model, as this model seemingly represents a legislative response that is committed to a specific theoretical justification (the utilitarian approach). 148 Another advantage to this approach is that Israeli copyright law, which was revised in 2007, was greatly inspired from both American and British copyright legislation. 149 Yet in 2019 Israel enacted an original framework for dealing with orphan works; there are some early indications that the Israeli model enjoys relative success.…”