Israel's Supreme Court upheld that oral course lectures not documented by the lecturer are copyrightable, but allowed publisher's defense that he was unaware of the existence of such copyrights.
The Supreme Court recently deliberated on the questions of whether undocumented lectures are copyrightable and what the law says about a third party that publishes them while being unaware of another's copyright claim.
In the case of Astrolog Publishers v. Sharon Ron1 lectures of the plaintiff, Sharon Ron, given in a numerology course, were published by Astrolog Publishers in a book by Ms. Ella Shunya. Before the book's publication Ella Shunya represented that she owned the copyrights in the book. The plaintiff alleged that the book's publication constitutes infringement of his copyrights in the lectures.
Under copyright law, in order for a original work to be copyrightable it needs to be fixed in tangible form. The court first examined whether the work was original, and while noting the effort invested in creating the lectures, the fact that modicum of creativity was present, and that the plaintiff was the work's original author; the court concluded in the affirmative. The court rejected the defense claim that the lectures could not be afforded protection as they were made orally and did not fixed in tangible form. As the lecturer presented three of his students' notebooks, which served as a source of reliable documentation to the content of the lectures, it was held that the plaintiff's works met the fixation requirement. The court thus ruled that the defendant indeed infringed the copyrights in these works.
Fixation requirement of an oral lecture was also discussed in a similar case, Inbar v. Dr. Asaf Yaakov2 where a lecturer of a Law of Damages course filed suit against an author of a book on this topic. In this case the court also held that the lectures in question were embodied in three ways: presentations were given as part of lessons and were shared with his students, notes were taken by the lecturer before the lecture and summaries of lessons were made by students as part of the lectures.
Returning to Astrolog the publisher raised the defense of an innocent infringer, that is, an infringer who "did not and could not know, at the time of infringement, that the work is copyrighted". The plaintiff countered by arguing that the publisher continued to distribute the book after receiving the 'cease and desist' letter. The court ruled that even though the plaintiff sent a 'cease and desist' letter to the publisher the plaintiff nonetheless failed to present any evidence attesting to the fact that he was the owner of the rights in the lectures. The court ruled in favor of the publishers and allowed the defense, holding that the case was exceptional as it that it dealt with a situation of an unpublished copyrighted work, to which third parties could not have access..
This ruling strengthens authors' rights in undocumented works and permits commutative evidence to meet the law's requirement of fixation; on the other hand, the ruling imposes on authors the duty to prove their rights in their works, when sending 'cease and desist' letters in situations of an unpublished copyrighted work.
1 CA 8742/15 Astrolog Publishers Ltd. v. Sharon Ron (Shtibelman) dated 3 December 2017 (published on Nevo)
2 CA 8117/03 Inbar v. Dr. Asaf Yaakov, dated 16 January 2006 (published on Nevo)
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