Abstract
Setting the scene of copyright in Palestine is the aim of this chapter. Section 2 highlights the main players and obstacles that effect and interact with upholding a copyright system in Palestine. In particular, it discusses the effect of the political and legislative status of Palestine on the ability to legislate copyright law. This discussion depends on the Oslo Accords—as the legal framework, the Palestinian Authority (PA)—as the self-governmental body in charge, and the Palestinian Legislative Council (PLC) which has ceased to function since 2007. Section 3 argues for the necessity of legislating copyright law in Palestine under the current legislative mechanism that is the Presidential Decrees, it supports its argument through showing the urgent need of the locals to have an effective copyright system in place, and highlights the link between copyright regulations and access to knowledge, especially in the current financial crises of the higher education in Palestine. Section 4 presents an overview of the current copyright law in Palestine and briefly assesses the law against the developments in the international copyright system. Section 5 argues for reform and advocates for switching to fair use as a flexible tool to exceptions and limitations on copyright.
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Notes
- 1.
The name ‘Palestinian Territories’ is in accordance with the relevant resolutions and decisions of the General Assembly and Security Council. References to the Occupied Palestinian Territory or Territories pertain to the Gaza Strip and the West Bank, including East Jerusalem. References to the “State of Palestine” are consistent with the vision expressed in Security Council resolution 1397 (2002) which affirms a vision of a region where two States, Israel and Palestine, lived side by side within secure and recognized borders; General Assembly resolution 67/19 (2012) which upgraded Palestine to a non-member observer state in the United Nations. Thus, this Chapter is using both terms: the Palestinian Territories and Palestine in indication to the West Bank including East Jerusalem and the Gaza Strip.
- 2.
Atkinson and Fitzgerald (2014), p. 4.
- 3.
The Mandate for Palestine (1924–1948). This was upon a decision of the Council of the League of Nations on July 24, 1922. However, the Mandate was not operative until the Council of the League of Nations approved it on September 29, 1923.
- 4.
Copyright Act 1911 (Extension to Palestine) Order 1924, 114 OG 643 (21 March 1924).
- 5.
Birnhack and Khoury (2016), p. 16. [hereinafter Birnhack and Khoury].
- 6.
As illustrated later.
- 7.
By the time the British left Palestine on 14 May 1948, 380,000 Palestinians had been forced from their homes by armed groups, following the Declaration of Independence of the State of Israel by David Ben-Gurion on 14 May 1948. By the end of 1949, Israel had expanded its territorial holdings to 78% of mandatory Palestine, and Palestinians had suffered wide displacement, lost their homes and large amounts of cultivated land—in what became known the Nakba (“catastrophe”). In 1949 the West Bank and Gaza were outside the Israeli control, to be left under the control of Jordan and Egypt. By 1950 the new United Nations Relief and Works Agency for Palestinian Refugees in the Middle East (UNRWA) had registered 914,221 refugees. See Palestinian Academic Society for the study of International Affairs (2013) Fragmenting Palestine - Formulas for the Partition since the British Mandate, http://www.passia.org/publications/bulletins/Partition/Partition_Plan1792013.pdf. (Accessed 20.4.2017).
- 8.
Cited in Shehadeh and Kuttab (1980) The West Bank and the Rule of Law, The International Commission of Jurists and its West Bank Affiliate, Law in the Service of Man, p. 1, http://www.alhaq.org/publications/publications-index/item/the-west-bank-and-the-rule-of-law. (Accessed 20.4.2017).
- 9.
With the exception of Jerusalem which has been formally annexed by Israel.
- 10.
Declaration of Principles on Interim Self-Government Arrangements, Israel – PLO, 13 September 1993. [Hereinafter DOP].
- 11.
Agreement on the Gaza Strip and the Jericho Area, PLO-Israel, 4. May. 1994. [Hereinafter Gaza-Jericho Agreement].
- 12.
The Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip, Israel - PLO, 28. September. 1995. [Hereinafter Interim Agreement].
- 13.
DOP, above n 10, Article I.
- 14.
DOP, above n 10, Article I. On 22 November 1967, the United Nations Security Council passed Resolution 242, which called for Israel to withdraw from territories occupied in 1967 in exchange for peace with its neighbors. See full text of the Resolution http://unispal.un.org/unispal.nsf/0/7D35E1F729DF491C85256EE700686136. The idea of “land for peace” has since prevailed, and formed the basis for future negotiations over the status of Palestine. See, Palestinian Academic Society for the Study of International Affairs, Fragmenting Palestine; Formulas for the Partition since the British Mandate, May (2013); Resolution 338, adopted on 22 October 1973 by the United Nations Security Council, reiterates the importance of Resolution 242, and calls upon the sides to begin negotiations with the aim of achieving a just and durable peace. For full text see, http://unispal.un.org/unispal.nsf/0/7FB7C26FCBE80A31852560C50065F878.
- 15.
Gaza-Jericho Agreement, above n 11.
- 16.
These agreements are: Protocol Concerning the Redeployment in Hebron (January 1997); Wye River Memorandum (October 1998); Sharm el-Sheikh Memorandum (September 1999); Agreement on Movement and Access (November 2005).
- 17.
Sayigh and Shikaki (1999) Strengthening Palestinian Public Institutions. Independent Task Force Report. https://www.pcpsr.org/sites/default/files/strengtheningpalinstfull.pdf. (Accessed 20.4.2017).
- 18.
Territorial jurisdiction includes land, subsoil and territorial water, Article ((XVII) (2) (a)) of the Interim Agreement.
- 19.
According to the Interim Agreement (Article XI), the Palestinian land occupied in 1967 was divided to three parts (A, B, C). The PA has complete territorial power over part A which consists of 18% of the land. And it only possessed a control over the civil administration in part B, which consists of about 22% of the land, leaving the security matters for Israel. Part C consists of 60% of the land, is under the complete control of Israel.
- 20.
Article ((XVII) (2) (b)) Of the Interim Agreement, in accordance to the Agreement, the powers and responsibilities of the PA cover: agriculture, health, education, land registration, local government and parks.
- 21.
Issues left for final status negotiations: Jerusalem, settlements, specified military locations, Palestinian refugees, borders, foreign relations and Israelis and the powers and responsibilities not transferred to the Council. The Interim Agreement, Article (XVII) (1).
- 22.
Khalil (2003), p. 48.
- 23.
The Interim Agreement, above n 12, Article (XVII.2.c).
- 24.
Settlements and military areas are excluded.
- 25.
Israelis who live in the West Bank and Gaza Strip are excluded from the PA’s Jurisdiction.
- 26.
Shehadeh (1997), p. 14.
- 27.
Ibid.
- 28.
Samuha (2014), p. 937.
- 29.
Other alternative strategies for the West Bank. Such alternatives include encouraging greater Palestinian nonviolent resistance to Israel and even dissolving the PA altogether.
- 30.
- 31.
WTO observership is part of the Palestinian strategy called “Ending the Occupation, Establishing the State”.
- 32.
See Sect. 2.1.3.
- 33.
Quigley (1997), p. 470.
- 34.
Ibid.
- 35.
Ibid.
- 36.
Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980).
- 37.
Rubin (2009) Israel, Occupied Territories, Max Planck Encyclopedia of Public International Law, para 32. http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1301?prd=EPIL. Accessed 14 March 2017.
- 38.
Agora: ICJ Advisory Opinion on Construction of a Wall in the Occupied Palestinian Territory: The ‘Wall’ Decisions in Legal and Political Context, Geoffrey Watson. Cited in Hollinder B, The Israeli Disengagement Plan: Unilateralism in the Face of Multilateral Agreements, https://www.wcl.american.edu/hrbrief/13/israeli.pdf, p. 18.
- 39.
Agora: ICJ Advisory Opinion on Construction of a Wall in the Occupied Palestinian Territory: The ‘Wall’ Decisions in Legal and Political Context, Geoffrey Watson. Cited in Brandon Hollinder, The Israeli Disengagement Plan: Unilateralism in the Face of Multilateral Agreements, https://www.wcl.american.edu/hrbrief/13/israeli.pdf, p. 18.
- 40.
Hollinder B, ibid.
- 41.
Rubin (2009), para 32, 33. Accessed 14 March 2017. The binding status of the Oslo Accords were asserted by separate opinion of judge Elaraby describing the 1993 Oslo Accord as “contractual and. .. legally binding on Israel” when finding the construction of the wall contrary to international law”, paragraph 2.4 (c), 253 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep, 136, 253 [2.4 (c)].
- 42.
Samman (2003), p. 64.
- 43.
Euro-Mediterranean Interim Association Agreement on Trade and Cooperation between the European Community, of the One Part, and the Palestine Liberation Organization (PLO) for the Benefit of the Palestinian Authority of the West Bank and the Gaza Strip, of the Other Part, 16 July1997, OJ L No 187/3, Art 33.
- 44.
The US-Israel FTA (1985), 25 ILM 653.
- 45.
The United States extended the Free Trade Agreement with Israel to include the West Bank and Gaza Strip by issuing a Presidential Proclamation in 1996, see, Proclamation 6955 To Provide Duty-Free Treatment to Products of the West Bank and Gaza Strip and Qualifying Industrial Zones, 61 Fed Reg 58761, (13 November 1996). On the other side, a Palestinian Ministerial Decision accepting reciprocity as indicated at the official website of the Palestinian Ministry of National Economy, see http://www.mne.gov.ps/agreements.aspx?lng=2&tabindex=100&m=0.
- 46.
Birnhack and Khoury (2016), p. 9. A one-paragraph statement reaffirmed the two countries’ obligations under bilateral and multilateral agreements. See Art 14 of the US-Israel FTA (1985), 25 ILM 653. Article 14 states: “The Parties reaffirm their obligations under bilateral and multilateral agreements relating to intellectual property rights, including industrial property rights, in effect between the Parties. Accordingly, nationals and companies of each Party shall continue to be accorded national and most favored nation treatment with respect to obtaining, maintaining and enforcing patents of invention, with respect to obtaining and enforcing copyrights, and with respect to rights in trademarks, service marks, tradenames, trade labels, and industrial property of all kinds”. “The reference to bilateral agreements in Article 14 is designed to acknowledge commitments made by the United States and Israel under a 1948 Treaty of Friendship, Commerce and Navigation (FCN). This treaty addresses the issue of national treatment in the area of intellectual property rights, including, for example, patents, trademarks and copyright. The obligations under the FTA reaffirm the bilateral and multilateral commitments undertaken in the area of intellectual property rights prior to the negotiation of the FTA. The Parties reaffirm their obligations under bilateral and multilateral agreements relating to intellectual property rights, including industrial property rights, in effect between the Parties. Accordingly, nationals and companies of each Party shall continue to be accorded national and most favored nation treatment with respect to obtaining, maintaining and enforcing patents of invention, with respect to obtaining and enforcing copyrights, and with respect to rights in trademarks, service marks, tradenames, trade labels, and industrial property of all kinds.” See, Free Trade Agreement between Israel and the United States, Questions and replies, (27. August. 1986) https://docs.wto.org/gattdocs/q/GG/L6199/6019.PDF. Accessed 24 March 2017.
- 47.
Husseini (2003), p. 527.
- 48.
Hijazi and Schloemann (2013), p. 12.
- 49.
Modified Palestinian Basic Law 2003 (Palestine).
- 50.
Art 47 of the Modified Palestinian Basic Law 2003:
-
1.
The Palestinian Legislative Council is the elected legislative authority.
-
2.
The Legislative Council shall assume its legislative and oversight duties as prescribed in its Standing Orders, insofar as they do not contradict the provisions of this law.
-
3.
The term of this Council shall be the interim period.
-
1.
- 51.
Institute of Law - Birzeit University (2012), p. 115.
- 52.
Internal Regulation for the PLC 2000 (Palestine), arts 65–72.
- 53.
Almustakbal Foundation for Strategic and Policy Studies (2006), p. 9.
- 54.
Sayigh and Shikaki (1999), p. 42.
- 55.
See Kasses and Nakhleh (2009), Palestine. (Arabic).
- 56.
Modified Palestinian Basic Law 2003 (Palestine).
- 57.
Towqan (2008).
- 58.
Ibid.
- 59.
See Palestinian Legal and Judicial System “Al- Muqtafi” for the number of decree of laws since 2007 to the present time. http://muqtafi.birzeit.edu Accessed 1 March 2017.
- 60.
For example; these decrees have been enforced recently: Presidential Decree No (2) of (2016) regarding the Customs Department; Presidential Decree No (9) (2016) Regarding the Box of Excellence and Creativity to support Education; Presidential Decree No (5) (2016) Regarding the Palestinian National School of Management. See Palestinian Legal and Judicial System “Al- Muqtafi”.
- 61.
See Sect. 4 below.
- 62.
Palestinian Center for Development and Media Freedoms (MADA) (2015), pp. 36, 37.
- 63.
It is reported that the Public Prosecution of Palestine presented to the Magistrate Court four copyright infringement cases. Ibid.
- 64.
MADA (2015), p. 38.
- 65.
MADA (2015), ibid.
- 66.
MADA (2015), p. 39.
- 67.
MADA (2015), ibid.
- 68.
MADA (2015), ibid.
- 69.
MADA (2015), ibid.
- 70.
MADA (2015), ibid. See also, Al-Quds Open University, Stores to Sell Scientific Research, 24.05.2015 (Arabic) http://www.qou.edu/viewDetails.do?id=7213. Accessed 3 March 2017; Finder, Plagiarism: The Academic Crime, Report, 06.08.2015 (Arabic). http://finder.ps/ar/reports-written/1427.html. Accessed 3 March 2017.
- 71.
MADA (2015), ibid.
- 72.
The Palestinian Central Bureau of Statistics (PCBS) (2016), p. 36. (Arabic).
- 73.
PCBS, ibid, 36.
- 74.
PCBS, ibid.
- 75.
PCBS, ibid.
- 76.
PCBS, ibid.
- 77.
These statistics are built on the results of an expenditure and consumption survey of Palestinian Family conducted by the PCBS within the period (15.01.2011 until 14.01.2012). PCBS, ibid, 29.
- 78.
The average size of a Palestinian family is 6.0 individuals: 5.7 individuals in the West Bank and 6.6 individuals in Gaza Strip.
- 79.
PCBS, above n 72, 29.
- 80.
PCBS, ibid, 30. Precisely, the same reference states that poverty percentage is 17.8% in the West Bank, 38.8% in Gaza Strip, with extreme poverty percentage of 12.9% (7.8% in the West Bank and 21.1% in Gaza Strip).
- 81.
Assistance to the Palestinian People, GA Res 43/178, UNGAOR, 83rd plen mtg, UN Doc A/RES/43/178 (20 December 1988) http://www.un.org/documents/ga/res/43/a43r178.htm. Paragraph 9 of the Resolution states ‘the General Assembly decides to extend to the occupied Palestinian territory the same preferential treatment accorded the least developed countries, pending the elimination of the Israeli occupation and the assumption of full control by the Palestinian people over their national economy without external interference’.
- 82.
The average per capita in Palestine in (2015) was US $1307. Recent data show that two thirds of Palestinians are affected by food insecurity, with 33% food-insecure, 21% marginally secure and 13% vulnerable to insecurity, see Office of the United Nations Special Coordinator for the Middle East Peace Process (2016). In 2016, 1.1 million people (21% of the population) in the West Bank and 1.3 million people (73% of the population) in Gaza need some form of humanitarian assistance, see Report on UNCTAD Assistance to the Palestinian people (1. September. 2016). Developments in the Economy of the Occupied Palestinian Territory, http://unctad.org/en/PublicationsLibrary/app2016d1_en.pdf, p. 2.
- 83.
See Sect. 5 below.
- 84.
- 85.
MASARAT, ibid, 3.
- 86.
Palestine Economic Policy Research Institute (MAS) (2011), p. 1.
- 87.
The financial crisis of the Palestinian universities is a current one, and arguably, it started with the second Intifada (in 1999) and it persists to the present time. Local Palestinian newspapers and news websites are full of reports discussing and reporting this issue.
- 88.
MASARAT, above 84, 4.
- 89.
Štrba (2012), p. 29.
- 90.
Ibid.
- 91.
Bundling refers to a practice where large number of journals are classified into a single subscription. In order to buy one set of journals, the subscriber, such as Harvard University library has no alternative but to acquire other journals without the possibility of ending the subscription. Cited in Štrba, ibid.
- 92.
Harvard University, “Libraries take a stand: Journals present rising costs to libraries—and to scholarship”, Harvard Gazette Archives, February 5, 2004. Cited in ibid.
- 93.
In addition to this main legislation, the following are secondary legislation in force in the Palestinian Territories: Copyright Regulation, 1929; Copyright (Rome Convention) (Latvia) Order No 97, 1937; Copyright (Rome Convention) (Morocco (Spanish Zone)) Order No 155, 1935, Copyright (Rome Convention) (Vatican City) Order No 999, 1935; Copyright (Rome Convention) Order NO 253, 1933. Act Concerning Publishing and Copyright in Music, 1906; Act Concerning Publishing and Copyright in Fine Arts, 1862. See, Palestinian Legal and Judicial System “Al-muqtafi”.
- 94.
First paragraph of the Preamble of the 1924 Ordinance and Sect. 5.
- 95.
The aim of this Ordinance is ‘to make provision for the application of the Copyright Act 1911 in Palestine’, providing that this Act should be read as modified by said Ordinance. However, the modifications to the Copyright Act 1911 were minor and resulted mainly from the fact that this Act has been enforced in a different country instead of the United Kingdom. Samman (2003), p. 31.
- 96.
For example, the Copyright Act 1911 was adapted to circumstances and enacted by the then self-governing dominions of Australia (Copyright Act 1912); the Union of South Africa (Patents, Designs, Trade Marks and Copyright Act 1916); New Zealand (New Zealand Copyright Act 1913, certified April 1914); Canada (Copyright Act of Canada 1923, certified 1923); and India the Act came into force on 30 October 1912.
- 97.
Copyright Act 1911, Article 1(1).
- 98.
Ibid, art 1(2).
- 99.
Ibid, art 2(1) (i).
- 100.
Ibid, art 2(1) (ii).
- 101.
Ibid, art 2(1) (iii).
- 102.
Ibid, art2 (1) (iv).
- 103.
Ibid, art (1) (v).
- 104.
Ibid, art 3.
- 105.
Ibid, art 5.
- 106.
Ibid, art 6.
- 107.
Ibid, art 14.
- 108.
Id, art 16.
- 109.
Id, art 17.
- 110.
Id, art 18.
- 111.
Id, art 19.
- 112.
Id, art 20.
- 113.
Id, art 21.
- 114.
Id, art 23.
- 115.
Moral rights were only incorporated in Israeli law in 1981. Birnhack (2012), p. 101.
- 116.
See, Suthersanen and Gendreau (eds) (2013).
- 117.
These Acts were: Licensing Act 1662; Statute of Anne 1709; International Copyright Act 1886 and the Berne Convention 1886.
- 118.
Intellectual Property Office of the United Kingdom, http://www.ipo.gov.uk/types/copy/c-about/c-history.htm.
- 119.
The 1886 text of the Berne Convention has been revised several times to take into account the fundamental changes in the means of creation, use and dissemination of literary and artistic works which have been taken place over the years, mostly resulting from technological development. The first major revision took place in Berlin in 1908, followed by the Rome revision in 1928, the Brussels revision in 1948, the Stockholm revision in 1967, and the Paris revision in 1971. Document prepared by the International Bureau of WIPO, International protection of copyright and related rights, http://www.wipo.int/export/sites/www/copyright/en/activities/pdf/international_protection.pdf.
- 120.
Alexander (2010), pp. 273–274.
- 121.
Alexander (2010), p. 266, citing Ricketson S, Ginsburg J, International Copyright 92–102.
- 122.
Copyright Act 1911, Article 19(1).
- 123.
Id, Article 1, and Article 35(1).
- 124.
Alexander (2010), p. 275.
- 125.
Convention Establishing the World Intellectual Property Organization, signed 14 July 1967 [1972] UNTS 11853 (entered into force 26 April 1970).
- 126.
Ibid, art 5(2) (i).
- 127.
However, it might be bound to uphold the TRIPS standards due to bilateral agreements, see Sect. 2.1.3 above.
- 128.
WIPO Copyright Treaty, signed 20. Dec.1996, S. TREATY DOC. No. 105-17, 36 I.L.M. 65 (entered into force 6 March 2002). [Hereinafter WCT].
- 129.
WIPO Performances and Phonograms Treaty, signed 20. Dec. 1996, S. TREATY Doc. No. 105-17, 36 I.L.M. 76 (entered into force 20 May 2002). [Hereinafter WPPT].
- 130.
See the Palestinian Ministry of Culture http://www.moc.pna.ps/page.php?id=601; Twam (2008), p. 16; The Palestinian Ministry of Culture has been the official governmental institution administering copyright through its Copyright Unit since 1998. Currently, the Unit’s main role is to spread awareness about the concept and significance of copyright among different groups of the community: the judicial branch, lawyers, Customs Department, universities and schools. Further, the Copyright Unit participates in the drafting and discussion of proposals for new copyright law.
- 131.
See the Palestinian Ministry of Culture, ibid; Twam (2008), ibid.
- 132.
Following the 2006 election and the subsequent split of Hamas and Fatah- the main political parties.
- 133.
Okediji (2005), p. 5.
- 134.
Okediji R, ibid.
- 135.
Copyright Act 1911, art 2(1)(i).
- 136.
Australian Law Reform Committee (ALRC) (2013) Copyright and the Digital Economy, Final Report, p. 88. http://www.alrc.gov.au/sites/default/files/pdfs/publications/final_report_alrc_122_2nd_december_2013_.pdf.
- 137.
ALRC Report (2013), p. 89.
- 138.
ALRC Report (2013), p. 89.
- 139.
ALRC Report (2013), p. 89.
- 140.
ALRC Report (2013), p. 89.
- 141.
ALRC Report (2013), p. 89.
- 142.
Campbell v. Acuff-Rose Music Inc., 510 U.S. 569, 577 (1994) (quoting Stewart v. Abend, 495 U.S. 207, 236 (1990)) (establishing that “transformative” uses of copyrighted material should often be excused from a finding of infringement as “fair use”).
- 143.
Hargreaves I (2011) Digital Opportunity: A Review of Intellectual Property and Growth, 101, cited in ALRC Report, above n 141, 90. The Review concluded that there would be a “considerable difficulties” in introducing a fair use exception into the UK. However, it also concluded that fair use should be achieved through other means rather than through directly changing the law. See, ALRC, 90.
- 144.
- 145.
Birnhack (2015), p. 264.
- 146.
Google Submission to the Independent Review of Intellectual Property and Growth, (March 2011). http://www.ipo.gov.uk/ipreview-c4e-subgoogle.pdf.
- 147.
Hargreaves and Hugenholtz (2013) Copyright Reform for Growth and Jobs: Modernising the European Copyright Framework. 13 Lisbon Council Policy Brief, p. 4. http://www.lisboncouncil.net/publication/publication/95-copyright-reform-for-growth-and-jobs-modernising-the-european-copyright-framework.html.
- 148.
Intellectual Property Watch (13.January.2017) Panels Present Importance of Fair Use in South Africa’s Draft Copyright Amendment. http://www.ip-watch.org/2017/01/13/panels-present-importance-fair-use-south-africas-draft-copyright-amendment/. Accessed 15 March 2017.
- 149.
According to the Palestinian Central Bureau of Statistics, the estimated Population in the Palestinian Territories in 2016 is (4,816,503). http://www.pcbs.gov.ps/Portals/_Rainbow/Documents/gover_e.htm. Accessed 23 March 2017.
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Al-Tamimi, R. (2018). Copyright in the Palestinian Territories: Setting the Scene. In: Gilchrist, J., Fitzgerald, B. (eds) Copyright, Property and the Social Contract. Springer, Cham. https://doi.org/10.1007/978-3-319-95690-9_3
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