Crown copyrights

Wikimedia Israel wishes to stimulate a discussion about the state's copyrights in creative works produced by civil servants when performing their public duties. These copyrights are often referred to as “crown copyrights”, a term borrowed from the British legal system.

The language of the law

The new Israeli copyright statute (in force)

The new Israeli copyright statute (2007) determines as follows (non-binding translation from the Buchman Faculty of Law, Tel Aviv University):

“The state shall be the first owner of a work made by, or commissioned for, the State or by an employee of the State in consequence of his service and during the period of his service; In this section, ‘State employee’ – includes soldiers, policemen and any other person who holds a position according to a statute in a State entity or institution.” (paragraph 36)

“Copyright in a work in which the State is the first owner of the copyright in accordance with the provisions of Chapter 5 shall last for a period of 50 years from the date of its making.” (paragraph 42)

The old statute (repealed in Israel)

The new law is phrased in the spirit of the British legislative tradition, which used to be accepted in Israel as an inheritance from the British Mandate. In the old copyright statute, which was in fact a British Mandate law, adopted by Israel with most of the Mandate's legal system, stated the following:

“Without prejudice to any rights or privileges of the Crown, where any work has, whether before or after the commencement of this Act, been prepared or published by or under the direction or control of His Majesty or any Government department, the copyright in the work shall, subject to any agreement with the author, belong to His Majesty, and in such case shall continue for a period of fifty years from the date of the first publication of the work.” (The UK copyright act, 1911, paragraph 18, adopted in British Mandate Palestine in 1924, was valid in Israel since its creation until May 2008 with the term "his Majesty" interpreted as if written “The State of Israel”)

Private creative works vs. the state's creative works

The law distinguishes between creative works made privately and those made for the state in official setting. The state has copyrights, but only for a period of 50 years from the work's creation (as opposed to 70 years after the creator's death in case of privately held copyrights). The new law even determines a slightly shorter period of “crown copyrights” – 50 years after creation and not after publication (in many cases the actual publication of the creative work is delayed).

In addition, the Israeli copyright statute (new and old alike) determines that certain creative works are not copyright protected:

“Notwithstanding the provisions of section 4, copyright shall not subsist in statutes, regulations, Knesset Protocols and judicial decisions of the courts or of any other government entities having judicial authority according to law.” (paragraph 7 in the 2007 statute, non-binding translation from the Buchman Faculty of Law, Tel Aviv University)

In other words, the copyright rules and regulations are not valid for texts of statutes, regulations, protocols of the parliament's plenary (the Knesset) and rulings of Israeli court of any kind. This kind of material is released to the public domain immediately. Nevertheless, these copyrights rules and regulations are valid for other publications on behalf of the parliament, the government and the courts of law, for example: bills, various reports, background material written by the government's or the parliament's employees for ministers or MPs and so forth. These publications are released to the public domain 50 years after their creation (in most cases).

A reference to “crown copyrights” appears in other statutes as well, for example in the postal service statute (1986):

“The intellectual property in stamps, and also all rights in sketches of stamps, in creative works used for issuing stamps and in stamps possessed by the philatelic service, are property of the state.” (paragraph 51(b), non-binding unofficial translation)

In other countries

The information below is based upon a report by the UK Office of Public Sector Information (part of the UK National Archive) and a review in the Canadian website LexUM.

The United States

Section 105 of the US Copyright Act determines that:

“copyright protection is not available for any work of the United States Government”.

The actual meaning of this act is that creative works produced as part of the activities of a federal administration's official department, are immediately released to the public domain, and are not limited by copyrights. However, works produced by local authorities of the union's states may be subject to copyright limitations. Regarding private works, the American law is more restrictive than its Israeli counterpart, however when it comes to works produced by the federal administration, funded with tax payers' money, the American law is the most liberal.

For the sake of illustration: when an image of an Israeli leader or personality is needed, it is easier to use a photograph taken by an official photographer in the United States, rather than a similar photograph taken “on home ground”, in Israel.

Images of Israeli leaders taken by US official photographers. Using similar images taken in Israel would be limited due to “crown copyrights”.
A portrait of the late Israeli premier Menachem Begin as taken on official visit to the US (March 1978).	Late Israeli premier Yitzhak Rabin and his late wife Lea Rabin landing in the US (September 1986).

The United Kingdom

The United Kingdom is the origin of the term “crown copyrights”, where in the 16th century the monarch authorized the publication of any book. This authority was canceled in the 17th century, but publications on behalf of the parliament or other official authorities were still said to be published by the monarch's permission or by the royal order. When the first copyright statute was legislated in 1911, it determined that the crown would hold copyrights in any creative work made by an official authority, and this is still the law in the UK and in countries that inherited the British law. The British law determines that crown copyrights expire 50 years after the first publication of such creative work. If a work is not published, the copyrights will be held by the state for good.

Germany

The Federal Republic of Germany adheres to the concept of “crown copyrights”, however in recent time German authorities started to release state's materials under free license. The most prominent example for this trend is the release of about 100 thousand images from the German Federal Archive following public pressure lead by Wikimedia Deutschland. The archive was persuaded to release tens of thousands of images, mostly historical photographs, under the "Creative Commons" license CC-BY-SA.

In practice, the German government waived most of its copyrights in images documenting the history of Germany and of countries where German governments had official representation. This new policy is of high importance to the Israeli public due to the valuable documentation of the Holocaust now released to the public domain, but also due to the fact that German photographer used to work in Palestine/Eretz-Yisrael and took pictures depicting the views and people of the country during the time of the Ottoman rule and the British mandate. Two random examples are an image of Jews in Berlin gathering before the “Palesine & the Orient” travel agency in January 1939 in an attempt to seek refuge outside Germany, and an image of Turkish cavaliers from the Ottoman army patrolling south of Jerusalem during WW1, in April 1917.

The German government's waiver of “crown copyrights” significantly facilitated the efforts to scan the images, digitalize them, and upload them onto the Internet so they be accessible to the general public. The fact that most limitations on using the images were lifted, allowed more people to take part in these efforts and enabled to use more options for saving the scans. The German Federal Archive did not lose anything, quite the contrary - it saved money and resources that should have been used for digitalization, saved images from decay and in addition, the public interest in the archive increased, which resulted eventually in an increase in the archive's profits.

Images released by the German Federal Archive under CC-BY-SA 3.0. The license allows using the images for any purpose, as long as the archive is mentioned as the source, and that derivative works are distributed under the same license.
Jews gather in from of “Palestine & The Orient” travel agency, seeking refuge outside Germany, January 1939.	Turkish cavaliers from the Ottoman army patrolling south of Jerusalem during WW1, April 1917.

Western Europe and the European Union

The situation in most European countries is similar to the state of affairs in Israel, i.e. legislation is not copyright protected, but the state keeps copyrights on other works made by a state authority. As of today, the European Union does not have a unified policy vis-a-vis “crown copyrights”, and it allows each member country to set its own rules. The European Commission has recently published a "green paper" (a non-binding suggestion to form a policy), with the purpose of adopting a unified policy throughout the EU (the English version of the green paper. In general, the copyright rules in continental Europe tend to be more limiting than the ones in Israel and the English-speaking world. Viviane Reding, the European Commissioner for Information Society and Media, has recently addressed the issue of file downloads from the Internet, and called for the adoption of new rules in EU countries so that people won't be “forced to become pirates”.

Misinformation about “crown copyrights”

The Israeli public is often misinformed about its rights regarding state-owned works, and where it should be careful not to breach copyrights. For example, the Knesset's (Israeli parliament) website includes a general statement warning that the contents published on the website are copyrighted by the State of Israel. The warning does not include a clarification saying that the texts of laws and the plenary sessions' protocols (in their Hebrew original phrasing) are in the public domain. Furthermore, there seem to be no reason why so much of the materials produced by the Knesset and published on its website should be limited in use by copyrights. For example, the Knesset could waive at least some of its copyrights in portraits of Knesset members, bills, all kinds of protocols (which are not plenary sessions' protocols), translations or summaries of laws and protocols published in the English, Arabic and Russian sections of the websites etc.
The State Archive's website also includes a general warning about “creative rights” (=copyrights), without mentioning that works created more than 50 years ago are in the public domain. In the descriptions of items, it is mentioned only if the item is available to the public (i.e. if it is not confidential), and nothing is mentioned about its copyrights, namely if they are owned by the state or by another person, or if they already expired.

The Bank of Israel

The Bank of Israel has taken an approach which is rather exceptional among state's authorities. The bank waived its right to implement copyright limitations on the use of designs of circulating banknotes or those taken out of circulation. The bank set rules which allow the public to copy the banknotes' designs, incorporate them in caricatures and similar uses, as long as the copies are not used for fraud or defamation. The rules can be found in Hebrew in the annual reviews of the Bank of Israel's Currency Department, e.g. in this review, pp. 34-35. An unofficial summary of these rules in English is available here.

It is unclear, though, why the Bank of Israel does not lift copyright limitations also from reports and reviews it publishes for the benefit of the public.

Wikimedia Israel's position

Wikimedia Israel maintains that works created under the state's authority, for the benefit of the state, should be available to the public freely, with minimal limitations, if any, on usage, copying, creating derivative works etc. The reason for that is simple - these works are made to serve the public and with tax payers' money. Therefore, the public has the right to enjoy the fruits of the work done for it and with its money. There are limitations unrelated to copyrights: the necessity of confidentiality in matters of state security, foreign relations or people's privacy, and it is understandable that the state wishes to keep its dignity and the dignity of its institutes by preventing the use of its symbols in a disrespectful way. For these matters, special rules already exist, regardless of the copyrights law. No limitations should be allowed beyond these.