December 16, 2013

Supreme Court Overturns District Court, Reaffirming that Expressions, not Ideas, are Copyrightable

Orit Gonen, Partner
Orit Gonen


Gilat, Bareket & Co.

In a recent case, Petah Tikva Municipality v Hari Ziso1, the Supreme Court of Israel accepted the appeal filed by the Petah Tikva Municipality and overturned the District Court’s ruling which had held that the municipality infringed on the respondent entrepreneur’s copyright in an idea to use fecal DNA testing to locate dogs whose droppings had been left in public by their owners; the Supreme Court reaffirmed the principle that copyright protects expression of an idea but not the idea itself and added that inventors and entrepreneurs should rely on patent law rather than copyright law in order to protect their ideas.

In the Ziso matter, the plaintiff, the respondent in the appeal, had come up in 2003 with the idea of using fecal DNA testing in order to connect dog droppings left out in public with the dog (and owner) responsible, and impose the appropriate enforcement measures upon the owner.

Ziso approached the Petah Tikva municipality with his idea, pitching it without receiving any kind of obligation to keep it confidential or to not disclose it, and although it first appeared as if the municipality was interested in funding a pilot program based on the idea, the municipality later decided to implement the idea on its own.

The plaintiff brought action on the grounds of copyright infringement, seeking a declaratory relief according to which he is the owner of the copyright to the idea, and damages for the alleged infringement.

The District Court held that Ziso is the owner of the idea, and that the presentation Ziso conducted and the correspondence he held with different municipalities were protected literary works. As the municipality admitted that it began using the identification idea on its own, the District Court ruled that the municipality had infringed on Ziso’s copyright in the idea, and ordered the municipality to pay him damages in the sum of NIS 10,000. As a result, the municipality appealed to the Supreme Court.

The Supreme Court overturned the District Court’s ruling, holding that while Ziso did come up with the idea, the municipality did not infringe any copyrights. The Court reaffirmed that ideas, procedures and methods of operation are not protected by the Israeli Copyright Law of 2007, and as it was not proven that the literary work was copied by the municipality, there had, in fact, been no copyright infringement at all.

The Supreme Court also denied the respondent’s attempt to rely on other arguments such as the municipality negotiating in bad faith and its unjust enrichment. Recalling the District Court’s reasoning, the Supreme Court held that as these arguments were not properly raised by the respondent in the District Court, they could not be raised now, as they amounted to a forbidden broadening of the claims’ scope.

In conclusion, the Supreme Court reversed the District Court’s decision regarding the municipality’s infringement and adjudicated the costs of NIS 25,000 against the respondent.

This case is a good example of a prima facie good case with favorable evidentiary foundations which might have resulted differently had the plaintiff used all possible grounds in his claim (such as unjust enrichment and contractual grounds).

1 CA 2682/11 Petah Tikva Municipality v Hari Ziso [Nevo, May 20, 2013].

This article is provided for general information only. It is not intended as legal advice or opinion and cannot be relied upon as such. Advice on specific matters may be provided by our group’s attorneys.

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