Can copyrighted material be used in Israel without permission from the copyright owner? In some circumstances, yes. Section 19 of the Israeli Copyright Law, 5768-2007, permits fair use of protected works without a licence or payment. It preserves room for criticism, research, education, news reporting, reviews and other socially valuable uses without turning copyright into a monopoly over every discussion of an existing work.
Fair use does not create a general entitlement to reproduce photographs, articles, videos, music or software. The outcome depends on the purpose of the use, the character of the original work, the amount and significance of what was taken and the effect on the work’s market. Whether the use is commercial, adds a different message or purpose, or credits the author can also matter. Both users planning publication and rights holders considering litigation should evaluate the full circumstances.
What Is Fair Use Under Section 19 of the Israeli Copyright Law?
Section 19(a) identifies purposes such as private study, research, criticism, review, news reporting, quotation, instruction and examination by an educational institution. Its wording makes the list illustrative rather than exhaustive. However, describing a publication as “research”, a “review” or “criticism” does not itself make it fair.
Section 19(b) lists four principal factors: the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the whole work; and the effect of the use upon the work’s value and potential market. These factors do not produce a mathematical score, and other relevant circumstances may also be considered.
The analysis begins by identifying the actual act. Copying a photograph, using an excerpt of recorded music or quoting part of an article may involve an economic right listed in Section 11 but still be allowed under Section 19. Fair use therefore defines a limit on the economic right; it is not merely a ground for reducing an infringement award.
First Factor: Purpose and Character of the Use
The court examines why the material was used, what the new publication contributes and how its purpose relates to that of the original. Quoting a work to analyze or criticize it, advance a research argument or facilitate public debate can differ from distributing the work itself as a substitute for the original. The heading attached to a new publication matters less than what the use actually does.
In Nespresso v. Espresso Club, Israeli Supreme Court, Civil Appeal 3425/17 (7 August 2019), the dispute involved a parody-style competing advertisement featuring an actor resembling a character associated with Nespresso advertising. The court examined, among other issues, the critical function of the commercial advertisement and the limits of protection for commercial expression, and dismissed the appeal. Commercial use can convey criticism, but the decision does not provide an unrestricted licence to copy competitors’ advertisements.
A socially valuable objective does not eliminate scrutiny of the amount taken or the market impact. An academic study of a film or reporting on an important photograph may still copy more than is justified for its stated purpose.
Commercial Versus Non-Commercial Use
Commercial character is significant but not determinative. A review published in a commercial newspaper may qualify as fair use, while extensive duplication of a book by a non-profit organization may not. The inquiry concerns the relationship between purpose and conduct, how the user derives value and whether the new use substitutes for normal exploitation of the work.
Even a website offering free access to readers may operate commercially through advertising, sponsorship or promotion of services. The relevant question is not simply whether the website charges a subscription, but whether the new publication adds value or merely allows the audience to consume another’s content elsewhere.
Transformative Character
One consideration is whether the use adds a different purpose, context or message. Using a work to criticize it or demonstrate something about it may differ from reproducing the work for its original purpose. Simply changing colors, cropping an image or adding a caption does not automatically make a use fair.
US copyright decisions discuss transformative use extensively, but the US framework should not replace Israel’s Section 19 analysis. Israeli courts apply the local statute and assess the overall circumstances of the particular use.
Second Factor: Nature of the Copyrighted Work
The nature of the original affects the justification for unlicensed use. A fine-art photograph, musical work or film can involve highly distinctive creative choices. A news article may contain extensive factual information, which is not protected in itself, although its original wording, selection and arrangement may be.
Section 5 distinguishes unprotected ideas, facts and data from the original expression of them. A person reporting independently on a fact described in an article may not be copying protected expression at all. Reproducing whole paragraphs from the article, by contrast, requires analysis of copyright and any permitted-use defense. These are legally different questions.
Prior publication may affect context but does not place a photograph in the public domain merely because it appears in Google search results or on a social network.
Third Factor: Amount and Substantiality of the Portion Used
Israeli law provides no general safe harbor permitting a fixed number of words, a particular percentage of a work or a number of seconds from a song. Quantitative extent matters, but so does the qualitative significance of what was copied.
A short quotation from the creative heart of a work may be more significant than a longer passage consisting mainly of peripheral factual detail. In some circumstances, showing an entire photograph may be justified because partial display would prevent meaningful criticism of the image.
In Danon Communications v. Yachimovich, Tel Aviv Magistrates’ Court, Civil Case 57588-05-12 (3 July 2014), part of an interview from a local newspaper was reproduced on a Knesset member’s website. The court accepted fair use for review in the circumstances, taking into account the purpose, copying of approximately 20% of the article, subsequent removal and lack of substitution for the original. The case does not establish a general rule that copying 20% of every article is lawful.
By contrast, in Maariv v. Businessnet, Central District Court, Civil Case 1549-08-07 (17 October 2012), systematic reviews of Maariv articles on TheMarker involved extensive reproduction of material, sometimes including the core of the original articles. The court rejected fair use on the facts, including the amount taken and the capacity of the reviews to substitute for reading the originals. Together, the cases illustrate the difference between an independent review and substantive duplication of the reviewed content.
Fourth Factor: Effect on the Work’s Value and Potential Market
The fourth statutory factor considers whether the new use competes with normal commercial exploitation of the original or harms a licensing market. If a copied publication allows readers to obtain the same content elsewhere instead of through the rights holder, the fair-use argument may be weakened. Limited criticism that does not replace the original may have a different effect.
Section 19 expressly refers to the potential market, not only to sales that have already been lost. Photographs may have editorial, commercial and advertising licensing markets; music may have synchronization and other licensing markets. The question is not whether every unlicensed use theoretically avoids a licence fee but whether this type of use undermines a market protected by copyright.
The market inquiry must be assessed in connection with purpose. A photograph shown to explain a critique may not compete with an archive licensing identical photographs to customers in the same manner as a rival stock-photo catalogue would.
Fair Use of Photographs and Images
A photograph is often presented as one visual unit, and sometimes the entire image must be reproduced to criticize it or substantiate a public report. That does not mean the same image may be copied in full to decorate a website or commercial advertisement.
In Ronen v. Let the Animals Live, Rishon LeZion Magistrates’ Court, Civil Case 48263-11-13 (5 January 2016), an animal-welfare organization published a photograph of a bird of prey on Facebook to accompany a critical report concerning suspected animal abuse. The court recognized copyright but found the use fair on the specific facts, including its public-interest purpose and lack of demonstrated commercial exploitation.
In Bardugo v. State of Israel, Rishon LeZion Magistrates’ Court, Civil Case 9544-10-21 (7 May 2023), a photograph of the Mount Meron religious gathering was used in official publications following the Mount Meron disaster. The court treated the economic use as fair but awarded compensation for failure to credit the photographer and infringement of moral rights. The source case review noted an appeal, so the first-instance judgment should not be described as necessarily final.
For the distinct ownership and attribution rules, see Copyright in Photography and Images in Israel.
Fair Use in News Articles, Websites and Social Media
News reporting and reviews are identified among Section 19’s purposes, but that is not a licence to reproduce articles from a competing website. Independent reporting, a short quotation used for analysis and a publication that permits readers to consume most of an article without visiting the source may be treated differently.
Danon v. Yachimovich and Maariv v. Businessnet illustrate different outcomes where a use related to commentary or reporting but differed materially in amount, character and market effect. News aggregation services, monitoring tools and “in the media” pages should therefore examine how content is actually displayed, rather than rely on the word “review”.
Sharing a link is not necessarily equivalent to uploading a copy of an entire article or image. The analysis begins with whether an act reserved to the owner took place and then considers authorization or a statutory permitted use.
Does Fair Use Apply to Software, Code and Technical Drawings?
Section 19 is not limited to fine art. Software and technical works require consideration of the protected expression and the purpose of use. It is particularly important to distinguish copying original code or drawings from using an idea, functionality or method that is not protected in itself.
In Safecom v. Raviv, Israeli Supreme Court, Civil Appeal 7996/11 (18 November 2013), the dispute concerned copying technical drawings in the course of a patent application. The Supreme Court recognized protection for original elements of the drawings, found substantial copying in the relevant material and rejected the statutory permitted-use arguments on the facts. A technological purpose does not automatically immunize copying of original expression.
The Israeli Copyright Law also contains specific provisions for certain uses of computer programs. Before relying on fair use for software reproduction, the specialized statutory provisions should be considered. See Software Copyright in Israel.
Fair Use for Education, Research and Academic Institutions
Private study, research, instruction and examination by an educational institution are expressly mentioned in Section 19. Depending on the facts, quotations, examples and excerpts from protected works may be used in teaching and academic discussion without permission.
This does not automatically permit scanning and distributing an entire textbook, uploading a comprehensive archive of publications or replacing ordinary educational licences with systematic copying. Relevant factors include the institution, course purpose, quantity taken, access limitations, audience size and likely market effects.
Use within a restricted class may differ from making the same material publicly available online. The Act also contains separate arrangements for educational institutions and libraries. There is no universal Israeli fair-use rule allowing a particular percentage or number of pages to be copied for students.
Criticism, Parody, Satire and Derivative Works
Criticism may address a work, its message or a public phenomenon illustrated by the work. Effective criticism sometimes requires showing or quoting protected material. Parody and satire may carry social value, but that does not make every reproduction fair: the court must consider whether the use adds critical content or merely copies expression to attract attention.
The Israeli Supreme Court’s Nespresso v. Espresso Club decision arose in commercial advertising with a parody element. It illustrates that commercial competition and criticism are not mutually exclusive, while the copying of protected creative elements remains a distinct issue.
Creating something new does not automatically establish fair use. Section 16 covers the right to make a derivative work. Translating, adapting or materially transforming an existing work may still require permission if protected expression is copied and the statutory exception does not apply.
Does Giving Credit Make a Use Fair?
No. Naming a photographer, writer or composer does not replace a licence or independently authorize copying. Conversely, lack of credit is not an automatic answer to every economic fair-use question. Sections 45–50 protect the creator’s moral rights separately, including appropriate attribution.
The distinction appears in Bardugo v. State of Israel, where the use of a photograph was treated as fair for economic copyright purposes but missing credit supported moral-right liability. A proposed use should therefore be assessed for both economic copyright and the author’s separate moral rights. See Moral Rights Under Israeli Copyright Law.
Can Online Material Be Used Without Permission?
Technical accessibility of online material is not legal permission to copy or repost it. Copying images from search results for commercial website design differs from displaying an image as part of a critical analysis of that image. Reposting an entire video differs from sharing a link to the original.
Where a work is supplied under an open licence, the user must comply with its terms. Not every Creative Commons or similar licence permits commercial use or adaptations, and attribution alone may not suffice. Exceeding a licence does not automatically make the excess use fair under Section 19; the conditions must be assessed independently.
Is Fair Use the Only Exception to the Licence Requirement?
No. Chapter D of the Copyright Law contains other permitted uses with their own requirements. Section 20 addresses use in judicial and administrative proceedings; Section 22 concerns incidental inclusion; other sections address temporary copies, software and particular institutional activities. Section 27A contains a separate arrangement for works whose copyright owner is unknown or cannot be found, subject to reasonable diligence and notice requirements.
A film accidentally including a background artwork may first raise the incidental-inclusion provision. Copying a document to conduct litigation may raise the specific legal-proceedings exception. Sometimes the proper first question is whether any protected expression was copied at all.
For unknown rights holders, see Orphan Works and Copyright in Israel.
Who Must Establish Fair Use in a Copyright Claim?
The copyright owner must establish the protected work, ownership or standing and the allegedly unauthorized act. A party relying on Section 19 should provide the factual basis for the permitted-use argument: the purpose and context, nature of the original, portion used and market effects.
The original work, the accused publication and its surrounding context should be preserved. A screenshot divorced from its accompanying commentary may not reveal whether the use was a review, criticism or commercial duplication. Evidence of distribution, audience, sales, licences and correspondence can be important.
A general statement that the use was “in good faith” or “in the public interest” does not replace the statutory analysis. Good faith may be relevant in context, but it is not an automatic fair-use defense.
What If the Use Is Not Fair?
Where no authorization or permitted use applies and infringement is established, the copyright holder may seek injunctive relief and damages. Section 56 allows statutory compensation without proof of loss where applicable, subject to the statutory limitations; alternatively, proven damage may be claimed.
Stopping a use after a demand may reduce the duration or extent of infringement but does not retroactively make earlier copying fair. Separate moral-right injuries require their own assessment. For available relief see Copyright Damages in Israel and Preliminary Copyright Injunctions in Israel.
Assessing Fair Use Before Publication or Litigation
First identify the work, rights holder and proposed act. Consider whether an authorization is necessary, whether an applicable licence exists or whether a specific statutory exception governs. If Section 19 is relied upon, record the purpose of the use, why the particular material was needed, whether copying could have been limited and whether the new publication substitutes for the rights holder’s normal market.
For a potential claimant, the corresponding questions are whether protected expression was copied rather than an idea; whether the new publication independently discusses the original; whether it illustrates a point or substitutes for the original; and whether moral-right requirements were respected.
Fair use is determined on the actual facts rather than slogans about “a permitted percentage”, “educational purpose” or “giving credit”.
Israeli Legal Sources and Related Guides
The principal provisions are Sections 5, 11, 16, 18–30, 45–50 and 52–58 of the Israeli Copyright Law. The Israeli cases discussed include Nespresso, Safecom, Danon, Maariv, Ronen and Bardugo.
For a claim or defense, see Copyright Infringement in Israel, Photography Copyright in Israel and Drori Stav IP’s Copyright Practice. Contact office@dwo.co.il for advice on Israeli fair use or enforcement.
