The Office of Legal Counsel and Legislative Affairs of the Israel Ministry of Justice published an opinion on the use of copyright protected content for machine learning purposes. Based on the analysis of three permitted uses under the Israeli Copyright Act, 2007 (hereinafter, the “Law“) – fair use, incidental use and transient use – and their application to machine learning, the opinion concludes that apart from exceptional cases, the use of copyrighted materials for machine learning purposes is generally permitted. The opinion does not apply to the output of machine-learning based systems, but only to the learning process itself.

The opinion is mainly relevant to R&D centers in Israel that use copyrighted content for machine learning purposes. Although the opinion is not binding on the courts, we believe that it will be given weight in the interpretation of the Law in relevant cases.

The opinion discusses the relevant permitted types of use as follows:

Fair Use

According to the doctrine of fair use set forth in Section 19 of the Law, use of a work for purposes such as private study, research, criticism, and journalistic reporting is considered permitted fair use. When examining the fairness of the use one must take into account, among other things, the purpose and nature of the use, the nature of the work, the scope of use of the work, and the effect of the use on the value of the work. According to the opinion, the creation of a database for training a machine fits the definitions of “private study” and “research” and therefore falls within the scope of permitted fair use. In addition, the use made of works for machine learning purposes is transformative, i.e. use that changes the work in terms of its meaning and context, which is considered fair use due to the premise that it enriches the creative world and the public. This determination was made after examination of the nature of use of fact and data-based works, or of research-based works, and the extent of their use in the context of machine learning.

Incidental Use of a Work

Section 22 of the Law permits incidental use of a work subject to the rules set forth in that section, for example by including the work in a photograph, a cinematic work or a record. In this regard, the opinion considers that the entire database, and moreover the individual works included therein, are but a means to train the computer to perform a task, which should be considered incidental use. This defense would not apply, for example, to the use of a system consisting only of the works of a certain author, where the eventual outcome is a similar type of photographic work, cinematic work or record, or where a business company makes commercial or substantial use of the database itself or the works included therein.

Transient Use of a Work

Transient use of a work is permitted under Section 26 of the Law if it is an integral part of a technological procedure whose sole purpose is to enable lawful use of the work, provided that the copy has no significant economic value of its own. According to the opinion, the creation of a database for machine learning purposes will be permitted if it is transient, if it is deleted upon completion of the use, and provided that its only purpose is to allow lawful use of the work (an example of lawful use is when the initial access to the works was lawful). In addition, and as previously mentioned, the copied work should not be of significant economic value. In the case of machine learning, it seems that each of the works contained within the database has minimal value on its own; such reproduction would thus be permitted (assuming the database is eventually deleted, as noted above).

We are happy to respond to any questions on this matter
​
Intellectual Property Department
Herzog Fox & Neeman

Karen Elburg | Partner
Head of Intellectual Property Department
elburgk@herzoglaw.co.il

Adar Bengom | Partner
Intellectual Property Department
bengoma@herzoglaw.co.il