In Aggregation Case, Israeli Court Says Online Ads Aren’t Copyrightable (Guest Blog Post)
By Guest Blogger Yoram Lichtenstein, Adv.
[Eric's note: Yoram previously shared some perspectives on a case involving live streaming of sports events. He now writes about another one of his cases, this time involving online aggregation websites. He represented the defendant Hug in this matter.]
We’re all aware of the information flooding the Internet, especially ads–job ads, real estate transactions, second hand items, and more. Which online resource should we use? Do we really need to scout 7 different sites in order to find a suitable couch for the living-room?
Aggregation/index sites are popping up everywhere, trying to solve this problem while aggregating ads (and other materials) from various sites. Yet those aggregation sites encounter potential legal hurdles, such as trespass to chattels (as we saw in eBay Inc. v. Bidder’s Edge, Inc.) or copyright infringement.
In Israel, there is a lot of legal and commercial interest in sites which collect ads from other sites and aggregate them into a single site. A few court cases have been heard or filed recently, yet none reached a definite decision until recently.
For example, “Alljobs.co.il” is one of the pioneer aggregation sites in Israel. Its slogan is something along the lines of “Job ads from all the sites and newspapers in Israel”. A few years ago, Maariv (a printed newspaper) and NRG (its online site) sued Alljobs, claiming copyright infringement in the ads that Alljobs had aggregated from them. The court stated that it is questionable whether such ads enjoy copyright protection at all; and even if they do, the ad copyrights are owned by the actual advertisers, not the site/newspaper. As the claim was not brought by the advertisers themselves, the (preliminary) injunction was denied.
Tel Aviv District Court (Israel’s intermediate appellate court) recently issued a decision (Hebrew word version) which could have a big impact on the permissibility of advertisement aggregation under Israeli copyright law.
Sometime during 2005, a new site, Hoogel, launched a directory of leisure activities and courses. Hoogel wasn’t alone. Shortly thereafter, a competitor named Hug also entered the market (“Hug” means “Course” in Hebrew) to provide a directory for the same materials. Nine advertisers, encouraged by Hoogel, sued Hug for copyright infringement.
Hug responded that it collected information from various sources – including Hoogel, but also including brochures, newspapers (local and national), etc. Hug also responded that the material it collected was not copyrightable because it was data and facts relating to the courses themselves.
The collected materials included the activity name, name of the vendor offering the course, activity schedule, expertise level required (i.e., beginners, intermediate, advanced), location, etc. Sometimes Hug added a photo; occasionally these photos were collected from third party sources.
While some of this data is clearly uncopyrightable, advertisers might be able to assert copyright protection for the course descriptions and photos. The court decided that the course listings lacked originality (or creativity); usually they include only “dry” data. The court emphasized that although previous decisions did not demand very much creativity, ads still need at least some creative value to become copyrightable. Thus, “the advertiser holds no rights in the content of the advertisement, in a manner that enables to prevent other billboards and index sites to publish the ad without her authorization” (my translation).
The court used, as an example to explain why the course descriptions were not copyrightable, a course description for sculpting sugar-figures for cakes. The text was (my translation, again): “Figure sculpturing workshop, consisting of two 5 hours encounters, each. The workshop emphasizes female and male proportions. First meeting shall include preparing the cake-base, and a winter male figure with proper clothes and accessories. On the second encounter we will prepare the female summer spouse, accessorized as well. At the conclusion of this fun activity each shall have the original couple s/he created.”
The court regarded such wording as purely factual, supplying relevant course details. The court did not separately discuss the copyrightability of any associated photos; it seemingly regarded the photographs in the same manner.
The decision teaches us that text and other materials that are functionally descriptive and factual may not be regarded as “works” protected by Israeli copyright law.
The court also considered the protection of compilation works. Citing the US Supreme Court opinion Feist v. Rural Telephone Service, the court decided that it is reluctant to allow such protection.
Because ads are not protected “works”, this decision may provide certain aggregators with more freedom of action. I do not know if this is a coincidence or not, but following the decision, Tel Aviv has been stormed by billboards advertisements for “the new kid on the block,” ZVZ.co.il, a new aggressive aggregator in Israel which touts its aggregation properties.
However, this decision does not allow the aggregators “carte blanche”. Every activity must be planned carefully, both commercially and legally. For example, this decision still did not solve issues like trespass to chattels (a doctrine not fully accepted in Israel).