Tommorw, the Israeli Knesset’s Economics committee will discuss the new Israeli Copyright Act. while many artists protest against this Act, I feel obliged to point out one substantial advantage in this act. If accepted as written now, the Act goes a giant step towards file-sharers in Israel. One of the artists’ complaints is against the annulment of statutory damages under the new act.

Statutory Damages would have allowed the plaintiffs, without proving any damage, to be awarded with no less than 10,000Nis (around 2,500$) and no more than 20,000Nis. This was criticised by the Israeli courts, as explained in C 60739/04 El-Or v. The Sport, Recreation and Culture Club in Tel-Aviv University by Hon. Judge Daliah Mack-Hornchick:

The array of sums from which the court may elect damages range today between 10,000 Nis and up to 20,000 Nis. This range does not allow the court to award the plaintiff a sum lower than 10,000Nis; even if I though that this case involves minor infringements of copyright – Then the choice would have been to assert consideration and avoid damages at all.

See also SC 3527/06 Cooper v. Danon.

The new draft amends clause 58a to disable statutory damages and to rule that:

58a.
(a) In a claim for copyright infringement or for the infringement of moral rights, the plaintiff will be awarded the damage occurred from the infringement and its consequences;
(b) The court, while ruling damages for a breach of copyright or the moral right, may consider the following considerations, according to the matter:
(i) actual damage occurred to the plaintiff as estimated by the court;
(ii) the length of the infringement;
(iii) the scope of infringement;
(iv) profits the infringer earned from the infringement;
(v) reasonable payments the infringer would have paid if licensed to use the creation in the scope of the infringement;
(vi) reasonable expenses by the plaintiff to discover the infringement;

Meaning that, de facto, The mechanism of Statutory Damages was erased from the Israeli Law.This legislation’s implications are serious since they actually request any lawsuit for copyright infringement to first show not only cause, but also damage. Managing cases will castrate itself, where copyright infringement cases with no damages will actually be annulled.

For example, and in spite The Israeli Record Labels’ claims to sue file shareres, there is a large probability that when lawsuits against file sharers will begin, the Labels will not be able to prove any damage, or only the damage from not selling a CD, meaning, a marginal and ineffective incentive to sue file sharers. This might grant incentives to avoid lawsuits or to prepare alternative licensing options to music.

For the consumer, leaving the statutory damages away from the new act will only do good. It will motivate free initiative and creation and deter suing random file sharers or usage for private matter and personal use. This might be the best way to reach a new compromise in copyright.
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