The Requirement of Originality in Israeli Law

Under Israeli copyright law, originality has not been defined in either the earlier or the most recent Israeli legislation. Instead, it has been subject to jurisprudential development. A few Israeli court rulings have clarified the originality requirement. In the country’s early years, Israeli law seems to have been influenced by trends in English law. Accordingly, the originality requirement was interpreted as requiring that the origin of the work be in its creator. This understanding reflects a focus on the investment of some human resources, mirroring the labor theory in the Anglo-American tradition. Examples of this approach can be found in early Israeli judgments. Later, under the influence of American law, the creative element of the work was emphasized, reflecting the incentive theory of copyright protection. This turn is reflected in the Interlego case and the Premier League case. Under these rulings, originality requires meeting three subtests—the investment test, the creativity test, and the origin test. These three tests are problematic and not completely clear. In practice, the question of originality rarely arises, probably because the tests set a very low bar that most works easily meet. In order to meet the investment test, a minimum investment of time, work, talent, knowledge, or other human resources is sufficient. The creativity test does not require a certain level of creativity and sometimes little or even worthless creativity is enough, and there is no need for the work to be innovative in relation to existing works in the same field. In order to meet the origin test, it is enough for the creator to show that his work is not copied from another work. Still, a critical look at the rulings in the Israeli courts shows a certain inconsistency in the degree of rigor in meeting each of the originality tests. Sometimes it seems that the court expands or reduces the originality requirement on a case-by-case basis, according to considerations of judicial policy. In the event that the court believes that granting a copyright to a certain expression will lead to inappropriate results, taking into account the reduction of the variety of methods of expression that remain free for public use, the denial of protection will usually be through the requirement of originality.