Wednesday, March 12, 2008

Israel's Clever Statutory Damages Provision

Israel has come up with an interesting and clever twist on statutory minimum damages. It allows for damages of up to approximately the equivalent of USD $27,000 - but notably has no minimum. It also specifies that several infringements that are “part of a set of activities shall be deemed as a single infringement.” This would appear to greatly reduce the risk of a perverse and absurd result such as the $227,000 jury verdict against Jamie Thomas that worked out to more than $9,000 for every song she allegedly downloaded.

The statutory damages provision affects and infects numerous areas in Canadian copyright law, even though it has actually been applied only very rarely. It has made many educators and librarians led by CMEC who are already too risk averse even more nervous about doing there jobs and perhaps contributed to their belief that they need to seek an special exception for use of the internet, which many of us believe is unnecessary and harmful. Instead, they should focus on revising the statutory damages provisions, as should many others who are rightly or wrongly fearful of their application or misapplication. In the USA, from whom we copied the idea of statutory damages, educators basically get a free pass if they can show a bona fide belief that their activity constituted fair use. No such provision exists in Canada.

Anyway, here’s the Israeli provision which will come into effect in May. Israel’s previous law had a statutory damages minimum of app. USD $2,700 - which has now been eliminated. Israel’s old law was based on the 1911 UK law, as is Canada’s. The upper limit now is fairly high and could lead to greatly disproportionate awards - but appears to have some constraints on its application. Here it is:

56. Damages without Proof of Injury
(a) Where a copyright or moral right has been infringed, the court may, at the claimant's request, award to the claimant, in respect of each infringement, damages without proof of injury, in an amount not exceeding 100,000 NIS.
(b) In awarding damages pursuant to the provisions of subparagraph (a), the court may consider, inter alia, the following considerations:
(1) The scope of the infringement;
(2) The duration during which the infringement continued;
(3) The severity of the infringement;
(4) The actual injury caused to the claimant according to the assessment of the court;
(5) The benefit derived by the defendant from the infringement, according the assessment of the court;
(6) The character of the defendant's activity;
(7) The nature of the relationship between the defendant and the claimant.
(8) Good faith of the defendant.
(c) For purposes of this paragraph infringements carried out as part of a set of activities shall be deemed as a single infringement.
(d) The Minister may, by Order, change the amount prescribed in subparagraph (a).
Canada should consider this precedent very carefully.

I thank Israeli colleagues, David Mirchin, for bringing this to my attention and Neil Wilkof for providing a copy of the unofficial translation of the new legislation some time ago and to Michael Birnhack for providing a link to an unofficial translation which is here.


No comments:

Post a Comment