The NLI Counsel's office responds as follows: In general, even if the book is out of print, if it is protected under copyright it can be used in accordance with "fair use" provisions (which would cover certain educational use), however it cannot be republished without the consent of the rights holder. The time after death of the creator is the determining factor, not the publication status of the work. In Israel, that time period is December 31st of the 70th year following the author's death. If you know the book is in the public domain (meaning the copyright protection period in the work has expired), its use is not restricted.
There is no closed definition of educational use in the "fair use" Section (19) of the Copyright Law-2007. The terms used are "self-study", which refers to study on the individual level and not for a large group, "research" and "testing or being tested in an educational institution" (in this last case the use is by the educational institution). It is impossible to analyze all factors in detail in this framework and without knowing the particulars of a case, but in general a fairness test is employed, considering the purpose of the use, the work being used, the scope of the use from a qualitative and quantitative perspective and the effect of the use on the value of the work and its potential market. It is true in this context that courts would be less likely to rule that these provisions have been violated with an out of print, older book that does not have great commercial value, than with a newer book on the bestseller lists. Another point raised by Israeli scholar Tamir Afori is that if the public interest can be served by using only portions of a work rather than the whole work, this is preferable. With respect to fairness of use and the economic ramifications of the use in our case, Afori suggests balancing the effect of the use on the economic value of the work, versus the value to the public of such use. Therefore, if using the work entails costly efforts to try to locate the rights holder, thereby creating an impediment to a beneficial use of the work, the law might see this as a mitigating factor. In summary, the reproduction of an entire copyright-protected book that is out of print, for educational purposes on a group scale (as opposed to individual study) is generally not permitted, and attempts should be made to locate the rights holder. However, mitigating factors such as the above might cause the courts to consider the use fair, and exempt the user from liability, especially in a case where it would be very costly or impossible to locate the rights holder. It is important to clarify that the above summary does not constitute legal advice. Neither NLI nor its counsel assume any liability for the reliance of any party on the aforegoing and anyone wishing to make use of any work must first seek out the appropriate legal advice and/or perform the appropriate checks with respect to the rights therein. From: [email protected]<mailto:[email protected]> [mailto:[email protected]] On Behalf Of Wendie Sittenfield Sent: 08 February, 2013 17:16 To: [email protected]<mailto:[email protected]> Subject: [ha-Safran] Israeli copyright for out of print books in an educational setting? Dear Safranim, Does anyone know if the Israeli copy right laws allow out of print books to be used published using I Author for educational purposes? Thank you in advance for your assistance. Wendie Sittenfield Head Librarian Jack M. Barrack Hebrew Academy 272 S. Bryn Mawr Avenue Bryn Mawr, Pa 19010 Click here to report this message as SPAM<http://vsp.ateranetworks.com/ReportSpam.php?sid=06e4a516142dafdf106cffdbd9da2223_0454093af33be78fc585a1514dda2932> -- Powered by ATERA Networks --
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