Tglaw│Tony Greenman, Law Offices‫│דין‬Tglaw‫גרינמן טוני‬, ‫עורכי משרד‬ALAI-Congress2012 – KYOTO
Questionnaire – Responses from Israel ALAI Group

Session 1－Developments of New Platforms
1) How would you define “The Cloud” in your country?
Remote Storage of digital files
2) Is exploitation of works, performances, sound recordings and so on generally considered torelate to the Cloud?
Yes - If the works are stored, sent or transmitted from a remote storage facility.
3) Are there already commercial platforms established specifically designated for the Cloud orto some extent related to Cloud uses? Can you foresee such new platforms to beestablished in the near future?
At this time, mostly users use foreign based services
4) How would you evaluate the Cloud’s importance to copyright for the next few years tocome?
Very important, especially in regard to online infringement
Sessions 2 and 3－ Can the Internet Treaties of 1996 play an important role in legal issues raised by “Cloud”
Business?
1)

Is there any case law to be found in your country and/or examples of (good) practices
concerning:1.1) the right of making available to the public with reference to “Cloud” storage, retrieval anddissemination?
Not as yet.
1.2) cloud providers that may be relevant to determine liability for the making available ofunauthorized content in the cloud environment?
Not in regard to cloud providers, but this is case law regarding link aggregators – sites thatprovide links to infringing copies. It has been held that if these sites are dedicated toencouraging infringement, or contain a high volume of links to infringing content they will
be considered secondary infringers.

2)

Is there case law on the technological protection measures and Electronic rights management
information in the “Cloud” environment?
No, since there is no statutory basis for this2

Tglaw│Tony Greenman, Law Offices‫│דין‬Tglaw3)‫גרינמן טוני‬, ‫עורכי משרד‬How can we re-examine or re-evaluate the role of the WIPO Treaties with reference to “cloud”
developments?
The treaties have not yet been ratified by Israel

Session 4– New Business Models for effective Protection of Copyright and Related rights in the “Cloud”:
Role of electronic rights management in new business models
Note: In general, services offered on the basis of cloud computing technologies are classified as“Software as a Service“ (SaaS), “Platform as a Service” (PaaS) and “Infrastructure as a Service” (IaaS).
Under the heading of “New Business Models for effective Protection of Copyright and Related rights
in the ‘Cloud’”, the main focus is on PaaS, whereas both IaaS and SaaS are of minor importance, since
they generally do not involve the use of copyrighted works of literature and the arts (issues ofcopyright in software are not discussed at this congress).

Note: This subsection focuses on successful business models of authors and rightholders who market
their copyrighted subject matter in the cloud either themselves or via a service provider (such as, e.g.
Apple’s “iTunes in the Cloud“), presumably by employing digital rights management (DRM) andperhaps also technical protection measures (TPM).
1) In your country, what types of cloud services are offered and/or made available by authors
and rightholders offering their copyrighted content?
Authors and rightsholders use foreign based platforms such as iTunes
2) What kinds of works are being offered in this way (e.g., musical works, literary works,
photographic works, audiovisual works, performances etc.)?
Mainly musical works, as well as applications that may contain various works.
3)

What rights do rightholders usually transfer to the providers of cloud services?
N/A
3) What uses of copyrighted material are the users of such cloud services permitted?
N/A4) Can you give any figures regarding both royalty rates and total revenue authors andrightholders receive when their works are being offered in the cloud?
N/A

6)

What kind of TPM and DRM is used by these services?
N/A3

Tglaw│Tony Greenman, Law Offices‫│דין‬Tglaw7)‫גרינמן טוני‬, ‫עורכי משרד‬Under the legislation of your country, to what extent are TPM protected against theirunauthorized circumvention?
They are not protected under the copyright laws. Where circumvention involves
unauthorized access to a computer or computer program, or interference therewith, theprovisions of the Computers Act may apply.

8)

Is unauthorized circumvention of TPM a practical problem for those offering their content inthe cloud?

5 Copyright-avoiding business models
Note: This subsection focuses on business models of persons other than authors and rightholders,
who build upon someone else’s copyrighted material and who – successfully or not – try not to be
subject to copyright liability. Examples are services that make use of the private copying exception(such as, e.g., personalized internet video-recorders) or which strive to benefit from an exception tolegal liability as an Internet Service Provider (such as, e.g., under the EU e-Commerce Directive). In
addition, strategies of authors who market their copyrighted works outside of copyright (such as, e.g.,under an open content or Creative Commons (CC) licence) can also be regarded as “copyrightavoiding” business models (although technically, they are based on copyright).
5.1 – Private copying in the Cloud1)

In your country, are there services – and if so, what kind of services are there - that offer its
users to store private copies in the cloud?
Examples are storage services with limited access (such as Google’s “Picasa”), platforms withgeneral public access (such as, e.g., FlickR) and mixed-forms (such as, e.g. Facebook) but alsoso-called internet-video recorders and possible other forms of private storage services.
The above platforms are available in Israel.

2)

In legal terms, to what extent do the operators of such services benefit from its user’s
private copying exception? Are there any other exceptions under copyright law?
(note that general exceptions of legal liability are discussed under 5.2).
The private copying provisions do not apply online under Israeli law.

5.2 – Copyright-avoiding models on the basis of – presumed – exceptions to copyright liability or
limited interpretations of the “making available” right1) To what extent do the operators of cloud services benefit from a narrow interpretation ofthe making available (or communication to the public, or public performance) right?
I do not believe that they would benefit from narrow interpretation.
2) According to the law in your country, what is the legal status (primary or secondary liability contributory infringement or vicarious liability; aiding and abetting, other liability such as aninducer, “Störer”) of the provider of cloud services with regard to copyright infringing
content uploaded by its users?

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Tglaw│Tony Greenman, Law Offices‫│דין‬Tglaw‫גרינמן טוני‬, ‫עורכי משרד‬Secondary liability, specifically contributory infringement applies. If the copying is done by
the service itself, not by, or at the direction of users, it may be liable as a primary infringer.
3)

In your country, do cloud service providers benefit from an exception to liability (such as,e.g., under the EU e-Commerce Directive), and if so, to what extent (e.g., total exemption
from liability or exemption only from duty to pay damages)?
Please cite to and briefly describe statutory provisions and relevant case law.
Case law has developed a :notice and takedown doctrine" whereby the provider is
exempt from liability unless or until it has actual knowledge of infringement or theinfringing activity. If the service is dedicated to encouraging infringement, or contains ahigh volume of infringing content (or links) they will be considered secondary infringers.

3) Also according to the law in your country, what duty of care is owed by cloud service
providers to monitor and eventually remove copyright infringing content?
Providers are not under a general duty to monitor. However, recent case law has
indicated that in certain cases, such as where there is a high volume of infringing content(or links), this duty may arise.

4) What evidence must a rightholder present in order to have infringing content removed?
Normally, a bare notice is enough.
5) In your country, are there any contracts that have been concluded between cloud service
providers and rightholders concerning the use of copyrighted material by the users of thecloud services?
Presumably, yes.

6) In your country, what copyright-avoiding cloud services are operating successfully, and whatservices that sought to be avoiding copyright have been banned and eventually shut down?
Link aggregators, offering links to infringing copies of motion pictures and television
programs have been shut down.
7) In your country, are there any legislative changes under discussion as regards the liability ofservice providers who provide for cloud services? In particular, do you think that liability ofservice providers will be reduced or, rather, increased?
A bill is pending that would provide statutory exemptions to ISP's in regard toinfringements caused by users of their services, based on the notice and takedown
doctrine.

5Tglaw│Tony Greenman, Law Offices‫│דין‬Tglaw‫גרינמן טוני‬, ‫עורכי משרד‬8) Do you see any progress regarding filtering technology?
We see more use of filtering technology on some sites.

5.3 – “Copyright-avoiding” business models operated by authors for the “Cloud”
1) In your country, is there a noticeable use of “copyright-avoiding” business models, such as
Creative Commons (CC) or comparable open content licenses by rightholders with respect tocloud-based exploitations of works?
We see use of models such as CC and flickr. I do not believe that these should beconsidered "copyright avoiding".
2) If so, in what areas (music, literature, audiovisual works, scientific works etc.) are suchlicenses most often used?
All of the above3) Are there any figures available as to how the authors of such works generate income fromsuch cloud-based exploitations, and how much?
There are no available figures
4)

Also in your country, what legal obstacles are authors faced with when making use of open
content and CC-licenses?
Examples might be the unenforceability of such licences; the refusal to award damages forunauthorized commercial use of works that have been made available only for noncommercial use; collecting societies refusing to represent authors who want to market someof their works under a CC-licence; the exclusion of CC-authors from receiving remuneration
under a private copying regime etc.
One Court considered a case where such a license was infringed where the user did notgrant credit to the author. The court awarded damages, but took into consideration thefact that the work was made available on a non-commercial basis and thus awarded amoderate sum.

Session 6－Future Model of One-Stop-On-Line Licensing in the Cloud Environment

1) Does your country have specific private international law rules for copyright inparticular and for intellectual property in general or are there general rules of privateinternational law that apply in these circumstances? In particular do your country's
rules of judicial competence (personal jurisdiction) make it possible to sue a foreignintermediary who makes it possible for infringements to occur or to impact in theforum? Which law applies in such instances? Would the law applicable to the primaryinfringement apply? Would the law of the intermediary's residence or place ofbusiness apply?
6Tglaw│Tony Greenman, Law Offices‫│דין‬Tglaw‫גרינמן טוני‬, ‫עורכי משרד‬If the infringing activity was directed at Israel, then Israeli courts would havepersonal jurisdiction. The question of what law would be applied is complex.
Generally, it would be that of the forum where the infringement occurred.
Determining where it occurred is a complex issue. There is some authority thatin the case of a broadcast (including streaming), or a download, then if the work
was received in Israel, or downloaded into Israel, Israeli law would be applied.
2) Does your national collective rights management organisation grant multi-territorial
licences and are there cloud-specific licence models when it comes to collective
licensing? If so, does this include rules on cross-border contracts (including
jurisdiction and choice of law aspects)?
Yes, the main national collective rights management organization grants multiterritorial licenses.
Submitted on behalf of ALAI Israel by Tony Greenman, Tony Greenman Law Offices.

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