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Creativity as Dignity Gains Constitutional Protection
Posted by Nimrod Kozlovski on Saturday, March 08 @ 21:49:56 EST Copyright
The Israeli court starts a constitutional era for copyright protection in Israel (Decision in Hebrew). “It is about time that the defendant and others will understand that the performance of a composition without license and with no payment of royalties is similar to loot of tangible objects”. “Especially in the constitutional era of the [Israeli] Basic Law: Human dignity and liberty it is imperative to protect creators and to compensate them for copyright infringements. Furthermore, the Basic Law protects copyright not only under the umbrella of “property rights” but also protects it as “creativity”. The term “Human dignity” includes also the protection of creativity” “This is to say that the Basic law stands for the protection of property and creativity and the court must adhere to these rights when a copyright infringement is proved either in a civil on in a criminal case.” The Israeli magistrate court opens in this decision a constitutional era for copyright protection in Israel while anchoring the protection of creativity both as property right and as part of the basic right for dignity.
Relying on the constitutional right for dignity the court decided that an unauthorized public performance of copyrighted songs in a restaurant constitutes a copyright infringement which grants the copyrights owner statutory damages of 10,000 shekels (~2000$) for each preformed song.

One can be bothered by the court’s reasoning. While the court enhances copyrights to a constitutional level he acknowledges no collateral rights for the users and ignores their “dignity” and independent interest in creativity. He attaches no active role to the listeners of music and finds no need to balance their interests with the copyright owners’ interest. Even if in this particular case there is a copyright infringement, One has to be worried with constitutional protection of copyright as part of “dignity” which does not acknowledge counter-interests which the users might have.

The court also encouraged artists to collectively manage and administrate their rights. The plaintiff, ACUM, the Israeli association for compositors, authors, lyrics and musicians , initiated recently a legal campaign against unauthorized public performances of music in restaurants, barber’s shops and banquet halls. The court acknowledged the importance of collective associations of copyright owners as ACUM and said: "Associations as the plaintiff reduce the costs of royalties in comparison to a system in which every individual creator collects royalties. Such associations alleviate the need to address the creator before every use of his work, and also free the creators from monitoring any individual copyright infringement. This association responds to a “market need” to enable collective enforcement of copyrights for its members while lowering the costs for users of copyrighted material… We shall encourage associations as the plaintiff”.”

Reminding ourselves how ACUM threatened lately to close the Israeli Radio Station after a commercial dispute over royalties, One should also ask: What about the excessive market power of such copyrights management monopoly? How does such a monopoly effect the bargaining power of the individual creators vis-à-vis the association?
 
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