Unauthorized use of a photograph in an advertising campaign, distribution of a book before its planned launch, use of software taken from a competitor or online publication of a work without permission may force a rights holder to make an urgent decision: seek damages after a trial, or ask an Israeli court to stop the use before final judgment.
A preliminary injunction in a copyright infringement case in Israel can prevent continued use of protected material, but it may also shut down a website, stop sales or harm third parties before the substantive dispute has been decided. The Israeli court therefore examines prima facie rights and evidence, potential harm to each side, urgency and the possibility of granting a narrower remedy. These principles also apply to digital works and online infringement.
Preliminary Versus Permanent Copyright Injunctions in Israel
Section 53 of the Israeli Copyright Law, 5768-2007, provides that a claimant in a copyright infringement action is entitled to injunctive relief unless the court finds reasons not to grant it. That rule concerns remedies for infringement; it does not guarantee an injunction at the beginning of every lawsuit.
A permanent injunction follows adjudication of the underlying case. A preliminary injunction is intended to protect the asserted right during proceedings and prevent a final judgment from becoming ineffective. An application is governed by Chapter XV of the Israeli Civil Procedure Regulations, 5779-2018, particularly Regulations 94–97 and 109.
Even where copying appears clear, the applicant must explain why immediate court intervention is necessary rather than awaiting trial or claiming monetary compensation. Interim relief is not the final determination of ownership or infringement.
When Can Copyright Infringement Justify a Preliminary Injunction?
Regulation 94 identifies the purposes of interim relief, including securing an apparent right, ensuring the proper and effective conduct of proceedings and protecting the ability to enforce the eventual judgment. Under Regulation 95(b), the court considers whether sufficient prima facie evidence supports a cause of action and whether the requested interim measure is necessary.
Regulation 109, specifically addressing preliminary injunctions, requires a reasonable concern that failure to grant the order will substantially impede proper enforcement of the judgment.
An application may be appropriate where alleged infringement is continuing, an imminent product launch relies on unauthorized copied material, or planned distribution would make later intervention ineffective. The alleged absence of a licence does not automatically establish a right to urgent interim relief; a separate procedural and practical justification remains necessary.
Prima Facie Copyright Ownership and Infringement
The first step is to identify the protected work. Sections 4 and 11 of the Copyright Law define the relevant categories of protected works and the acts reserved to rights holders. Ownership of a physical copy, purchase of a product or control over a website does not by itself establish ownership of copyright.
The applicant must also demonstrate standing. Section 54 permits an infringement action by the copyright owner and, in the circumstances specified there, an exclusive licensee. Where the work was made by an employee, commissioned from a freelancer or transferred by agreement, the chain of title must be examined rather than assuming the business commissioning the work owns it.
Evidence of infringement may include access to the original work, similarities between protected expression, the extent of copying and the significance of the copied portions. Similarity arising only from a shared idea, necessary functionality or unoriginal features is not necessarily infringement of protected expression.
At the interim stage, final proof of every issue is not required, but concrete evidence must be submitted. For underlying rights and permissions, see Copyright Assignment and Licensing in Israel.
The Balance of Convenience and the Harm to Both Sides
Regulation 95(d)(1) requires the court to weigh the harm to the applicant if an injunction is refused against the harm to the respondent if it is granted, as well as possible effects on third parties and the public interest.
A photographer may demonstrate that mass distribution of images at low prices undermines the licensing market. A film producer may show that an unauthorized release before the premiere threatens the distribution strategy. A software developer may present customer and contract evidence explaining the business impact of a copied product.
Where monetary loss can be reliably assessed and recovered after trial, that may reduce the need for immediate restraint. Conversely, shutting down a service may damage dependent customers, employees and contractual relationships.
Under Regulation 95(d)(2), the court must consider whether a less harmful measure can achieve the purpose. Restricting use of a particular software module or removing an identified file may be more proportionate than disabling an entire service.
Optimai v. Blue Giraffe: An Interim Order Concerning a Mortgage Calculator
In Optimai v. Blue Giraffe, Tel Aviv Magistrates’ Court, Civil Case 23800-11-21 (25 November 2021), the court considered an application to restrain operation of an online mortgage calculator allegedly copied from the claimant’s calculator. The claims included copyright infringement and involved comparisons of the calculators’ visual appearance and user experience.
The court examined the prima facie merits, balance of convenience and the parties’ conduct. The application was granted subject to security of NIS 60,000. The decision illustrates the role of specific comparative evidence and the requirement to protect the respondent against potential harm.
The court decision concerns interim relief and should not be represented as a final judgment resolving the infringement action.
Hertzano v. P-Kama: Why the Balance of Convenience May Prevail
In Hertzano v. P-Kama, Israeli Supreme Court, Civil Leave to Appeal 2960/15 (7 September 2015), the court considered applications for interim injunctions arising from a dispute involving an online Rummikub game following the termination of a licensing relationship.
The proceedings involved copyright, trademark, passing-off and contractual claims. Although the court recognized a prima facie foundation for certain allegations, it did not order the shutdown of the new game.
The balance of convenience, uncertainty over rights in aspects of the technology and the harm to respondents if operations were stopped weighed against the requested injunction. Instead, the court provided for part of the game’s revenues to be placed in an escrow account.
The case demonstrates that a potentially strong underlying claim does not automatically justify stopping a business before trial. It involved combined causes of action and is not a general rule that a financial remedy will always suffice in copyright cases.
Delay, Good Faith and the Duty of Candor
Regulation 95(d)(3) requires consideration of good faith and whether the applicant delayed excessively in bringing the action or seeking interim relief. An owner who knew of a use for months and then suddenly claims that judicial intervention must occur within hours will need to explain the new urgency.
Delay is not necessarily fatal. The scope of infringement may have changed, new information may have become available or an imminent launch may have been discovered. Nevertheless, an applicant’s conduct affects assessment of urgency and whether changing the existing situation at the interim stage is justified.
Concealing a licence agreement, material correspondence or facts about the market for the work can undermine an application, particularly when relief is sought without first hearing the opposing party.
Can an Israeli Court Issue an Injunction Before the Copyright Claim Is Filed?
Regulation 95(c) permits interim or temporary relief before commencement of the principal claim in appropriate circumstances. The lawsuit must then be filed within seven days of the order unless the court sets a different period. Under Regulation 100, an order may expire if the principal claim is not filed within the prescribed period.
This procedure is intended for situations requiring immediate protection while the substantive claim is still being prepared. It does not remove the need for prima facie evidence, proof of necessity or the undertakings and security required by the court.
In practice, the proposed claim and supporting evidence of ownership and infringement should be prepared alongside the urgent application.
Ex Parte Orders: When May an Injunction Be Granted Without Hearing the Defendant?
Under Regulation 97(a), an application for interim relief is ordinarily heard with the parties present. Ex parte temporary relief is an exceptional measure requiring special reasons and sufficient evidence of a reasonable concern that the delay in hearing the respondent, or notifying the respondent, would frustrate the order’s purpose or cause serious harm.
A claim that a website operator intends to upload a large collection of files may support urgency in appropriate circumstances, but does not automatically justify an ex parte order. The facts must establish why an adversarial hearing would defeat the requested protection.
Where an ex parte order is granted, the regulations govern prompt service, normally no later than three days subject to the court’s powers in Regulation 97(d), and an expedited hearing with both parties in accordance with Regulation 97(e). The applicant should disclose material facts even when they do not support its position.
Undertakings, Security and Financial Exposure
Under Regulation 96, interim relief generally requires the applicant’s undertaking and security to cover damage that the respondent may suffer if the order expires or is narrowed. The court determines the form and amount and may exempt an applicant from depositing security where special grounds justify it.
An injunction stopping software use or content distribution can cause lost revenue, launch expenses and harm to customers. If the order is later dissolved or restricted, financial consequences may arise under the undertaking and procedural rules. The NIS 60,000 security required in Optimai is an illustration, not a standard amount applicable to other proceedings.
Preparing an Application for a Copyright Preliminary Injunction
The requested order should identify the exact conduct to be stopped. It makes a substantial difference whether the applicant seeks to prevent book distribution, remove particular files, stop use of identified photographs or close an entire service. A broader order needs correspondingly persuasive justification.
The evidentiary record will generally include the original work, proof of creation date and ownership, relevant employment or licensing agreements, evidence of the disputed conduct and specific comparisons of the works. Original copies, screenshots showing dates and URLs, source files and relevant communications should be preserved.
Expert evidence may be useful for comparing software code or technical features. For visual works, a focused comparison of protected expressive elements may assist the court. Separate evidence should establish why interim relief is needed, including the planned distribution schedule, commercial exploitation, effects on the licensing market and when the infringement became known.
An application should be supported by the required affidavit and procedural documents. The applicant should explain whether a narrower order could suffice and propose terms capable of practical enforcement.
Responding to a Copyright Injunction Application
A respondent should address both the prima facie claim and the balance of convenience. Potential defenses include lack of copyright protection, absence of standing, independent creation, an existing licence or a statutory permitted use.
In software disputes, the distinction between copying protected code or original expression and using an unprotected idea, method of operation or function may be central.
Evidence of harm to ongoing operations, customers, employees and third parties should also be presented. Launch dates, existing contracts, revenue and the cost of suspending services may be relevant. Where appropriate, the respondent can propose temporary alternatives such as removing a particular item or undertaking not to expand the disputed distribution.
A motion to cancel an order already issued ex parte must also address applicable time limits and service requirements.
Online Copyright Infringement: Removal, Access Restrictions and Injunctions
Where alleged infringement takes place online, a court may, in appropriate circumstances, prohibit continued making available of a protected work. A focused order requiring removal of an identified item may be sufficient in one dispute; another may involve an entire distribution mechanism. A judicial injunction against a defendant should not be confused with a notice-and-takedown request to a platform operator.
Section 53A of the Israeli Copyright Law establishes a separate statutory route for orders restricting access to a content source, subject to its particular conditions and jurisdiction, including the possibility of interim relief. It should not be conflated with an order directing an alleged infringer to cease a specified act. The persons affected and legal tests may differ.
Injunctions, Damages, Accounts and Destruction of Copies
An injunction primarily seeks to restrain conduct. Monetary compensation addresses loss or infringement under the available statutory causes of action. Sections 56–57 of the Copyright Law address, among other matters, statutory damages without proof of loss and accounts. Section 60 permits orders concerning infringing copies and materials used in infringement after determination of the action, subject to the statute.
The availability of a final remedy involving destruction or other disposition of infringing copies does not mean the same order is automatically appropriate at the preliminary stage. Additional procedural measures, including preservation or seizure of evidence where the relevant conditions are met, require their own justification.
Special Statutory Restriction for Architectural Works
Section 59 of the Copyright Law provides a specific limitation involving a building or other structure: once construction has begun, the claimant is not entitled, on the basis of copyright or moral-right infringement in the structure, to an order preventing construction or requiring demolition.
The provision does not necessarily rule out other available remedies, and does not determine whether infringement occurred. An architectural-work dispute therefore requires careful distinction between an order affecting the construction itself and financial or other relief permitted by law.
Israeli Legal Sources and Further Reading
The substantive rules are found in the Israeli Copyright Law, 5768-2007, especially Sections 4, 11, 47, 53, 53A, 54 and 56–60. Interim relief is governed by the Civil Procedure Regulations, 5779-2018, principally Regulations 94–100 and 109. See also Yonatan Drori and Yotam Werzansky-Orland, Intellectual Property Law in Israel (2019), Chapter 4, pp. 376–377.
Related guidance: Copyright Assignments and Licensing in Israel and Drori Stav IP’s Copyright Practice in Israel. For advice on copyright infringement proceedings, preliminary injunctions or licensing disputes, contact office@dwo.co.il.
