Fair use in copyright: the limits of the law

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A question that comes up every day: “I cited the source, is that enough?” (Short answer: no)

A photo you shared online. A quotation you put in a presentation. A piece of music you used in a YouTube video. Each of these may be a copyright infringement, even if you did not charge anything. On the other hand, there are cases where using someone else’s work is entirely permitted, and even protected. This is what is called “fair use”.

In Israel, the legal basis is section 19 of the Copyright Act, 5768-2007. Unlike British law, which allows “fair dealing” with a closed and narrow list of cases, Israel adopted a more flexible American approach: an open list of considerations that the court examines together. This flexibility gives room, but also uncertainty.

The 4 tests that decide: fair use or infringement?

When a court examines a copyright claim, it weighs 4 main factors:

• The purpose and character of the use: criticism, parody, academic research and news reporting are viewed favorably. Commercial use, less so. But there is no iron rule: commercial use can also be fair in certain circumstances.
• The character of the original work: a factual work (a scientific article, data) is easier to quote than an original artistic work. And the other way around: quoting a whole poem is harder to justify than quoting a news item.
• The extent and substance of the use: how much you took, and what you took. Sometimes quoting the “heart” of the work, even if it is small, is more problematic than quoting a whole paragraph.
• The effect on the market for the original work: an especially important consideration. If your use “steals” sales or replaces the need to buy the original, that is a very bad sign.

None of the tests decides on its own. The court balances them. There is room for argument here, and that is exactly why the question ends up in court.

What is permitted: real-life examples

Uses that are usually considered fair:

• Quoting a passage from a book in a literary review, provided you cited the source
• Using a few frames from a film in an academic film analysis
• Parody: a work that criticizes the original by imitating it
• Quoting photos in a newspaper article for direct news reporting
• Teaching: using material for teaching and learning, to a limited extent

Uses that are almost certainly not fair:

• Uploading a whole music album to a website for free listening
• Using a stock photo without a license “because it is only for my website”
• Putting a whole song in a YouTube video, even a non-commercial one
• Rewriting someone else’s article and selling it as your own

Three questions everyone asks, and direct answers

I cited the source: is that enough? No. Citing the source is a moral duty, and sometimes also a legal one (the author’s moral right). But attribution and fair use are two separate tracks. You can quote with credit and still infringe copyright.

What about AI and training models on protected content? Courts around the world are dealing with this question right now. There is no direct case law in Israel yet, but the Ministry of Justice took the view, in an opinion of 18 December 2022, that machine learning on protected content will usually be fair use, with exceptions, and without deciding anything about the output; the opinion does not bind the court.

A meme made from a photo: infringement? It depends. A clear parody that criticizes the original is usually protected. Taking a professional photographer’s commercial photo and writing a funny text on it, less so. This distinction is essential.

Someone stole your content? 4 practical steps

• Document everything: dated screenshots, the URL, the publisher’s name
• Contact them directly: a takedown letter (a DMCA takedown for foreign websites, a direct request to an Israeli website) usually works quickly
• Contact the platform: YouTube, Facebook and Instagram run a removal mechanism based on a proper request; in Israel you can also ask the District Court for an order to disclose the details of an anonymous user who infringes online (section 60B)
• Consider a claim: section 56 of the Copyright Act, 5768-2007, allows statutory damages of up to NIS 100,000 for each infringement, even without proof of actual damage; infringements committed in a single course of conduct are treated as one infringement (section 56(c)). However, section 56 does not apply, among others, to someone who made available online, not for a commercial purpose, an artistic work (for example a photo) that had already been made available to the public, and stopped the infringement within a reasonable time after receiving notice from the owner of the right, if the work was not copied from a catalog intended for selling or licensing it (section 56A)