1. Introduction In examining
this subject, one must distinguish between the following two
issues:
a. use of the Internet by a government office to disseminate
information to the public; and
b. use of the Internet by employees of a government office in
the discharge of their duties, as in: 1. research;
2. communications;
3. keeping professionally up to date.
2. Dissemination of Information to the Public and Copyright
A. State Copyright - the Situation Today
The State of Israel holds copyright in its works under Paragraph
18 of the Copyright Law of 1911.
The Copyright Law protects the commercial value of the work,
and forbids, among other things, unauthorized copying and dissemination
of the work in a way that deprives the copyright holder of pecuniary
benefit.
The State of Israel also holds in its works a type of copyright
known as "moral rights,"
according to Paragraph 4A of the Copyright Ordinance
(amendment to the Ordinance, 5741-1981).
Paragraph 4A entitles the author of a work to have his/her
name attributed to the work and protects the work from falsification,
damage, or the like, that may devalue it or disparage the author`s
dignity or reputation.
The State of Israel is also a signatory to international copyright
treaties
(such as the Berne Convention) that provide copyright protection
for Israeli works
published within the borders of the other signatory states.
Publications on the Internet may enjoy copyright protection
if they meet the requisite criteria of creativity set forth
by the law of copyright. Copyright in a publication on the World
Wide Web may pertain both to the contents of the displayed page
and to the lines of HTML code that underlie the presentation
of the page. The State may protect its copyright in its Internet
publications by displaying an appropriate notice: Copyright ã
1997. The State of Israel. All Rights Reserved.
With respect to publication of third-party copyrighted
works on state-owned sites, the following should be ascertained:
1. that explicit permission to publish the
work has been obtained;
2. that notice is given to the effect that the copyright in
the work belong to the copyright holder.
An alternative method with respect to a third-party
copyright is to purchase the work, including its copyright.
In such a case, steps should be taken to have the holder of
the moral rights in the work (personal, non-transferable rights),
waive these rights. B. Expanded Discussion
of Copyright and Terms of Use on Internet Sites In addition
to a notice of copyright, many sites provide a link to a special
URL that elaborates on user rights pertaining to the use of
the site. This link can be made in two ways: 1. in a copyright notice that also serves
as a link to the new URL;
2. in a special link next to the copyright notice leading
to "terms of use."
The new URL may have two types of contents:
1. an expanded description of the copyright
issues, relating to the two main
aspects (commercial and moral);
2. an elaboration of the copyright issues and an elaboration
of further terms pertaining
to the use of the site.
The further terms pertaining to the use of a
site usually refer to three issues:
1. Expansion of the user`s rights within the
limits of the copyright. For example, under existing law,
copying the contents of an Internet page to the hard disk
of the user`s computer is an act of copying and a possible
copyright violation. In the terms of use, the site owner may
stipulate that:
a. a user may copy material to a hard disk
for personal use; b. a user may create a printout (again,
an act of copying) for personal use; c. a user may reproduce
the material and pass it on to anyone he/she wishes, as
long as the content is not changed and the material, including
the copyright notice, is transferred in its entirety. (This
amounts to a waiver of commercial protection coupled with
retention of moral protection.)
2. Limiting users` rights in uploading material
to a site, in the case of interactive sites. For example,
one may state that:
a. users may not post incitement, obscenities,
or libel to the site; b. users may not post third-party
copyrighted material to the site.
3. Limitation or exemption of the site owner`s
liability towards the user. This is necessary to protect the
owner from legal action if incorrect information is published
or if the information service is disabled.
a. Information on the Internet is not secure.
Even if every effort is made to assure the correctness of
the material distributed, there are ways to invade sites
and modify information. (Salient examples are invasions
of sites of the U.S. Department of Justice and the CIA.)
Users might copy information (even if done illegally) and
transfer it to other parties, while the copied information
might be undetectably altered. b. Internet sites are not
always available. Servers "fall," communications are disrupted,
or some user maliciously causes a "denial of service” situation.
C. Legal Validity of Notice
of Copyright and Terms of Use Copyright notices have binding
legal effect under the law of copyright, and apply to third
parties even in the absence of a contractual relationship between
the copyright holder and any given third party. However, terms
of use are usually set out in a contractual format, especially
when they limit users` rights of use to the site and limit the
site owner`s liability towards users. Since users are not required
to confirm their acceptance of the terms of use before they
visit the site or while they use it, some doubt exists as to
the existence of a contract creating process between the parties,
based on offer-and-acceptance (as required under the Contract
Law). One therefore doubts whether the above mentioned limitations
of rights would be legally binding, at least under Israeli law.
Furthermore, even if a contract is found to exist, it would
be a uniform contract. Exemption stipulations in uniform contracts
are subject to judicial review in Israel and may be voided if
they unduly prejudice consumer rights. However, one cannot dismiss
the possibility that terms of use have legal force. One may
argue that, according to the custom in the Internet culture,
the very act of visiting a site constitutes consent to the site
owner`s terms of use, assuming that clear reference is made
to these terms. Furthermore, at least insofar as the terms of
use serve to explain and elaborate on the meaning of a copyright
or spell out waivers on the part of the copyright holder of
certain portions of his/her rights, then these terms undoubtedly
have educational, informational, and legal value.
D. Publication of Notice of Copyright and Terms of Use
In reviewing Internet sites of government offices (including
those of subsidiary agencies and the Knesset), I found a lack
of uniformity in copyright notices and terms of use. Four sites
(Ministry of Finance, Knesset, Government Advertising Bureau,
and Central Bureau of Statistics) had differently phrased copyright
notices. The copyright notice at the Knesset site links users
to a URL that expands on the copyright notice from the commercial
perspective only. No reference is made to the Knesset`s moral
right in the protected material. A printout of the detailed
copyright notice is attached hereto. The Bureau of Statistics
site has two notices: of copyright and of terms of use. The
latter links to a URL in which copyright issues are addressed
(both of its major components) as well as liability exemptions
(this is especially important as the CBS site disseminates official
statistical data.) A printout of the terms of use is attached
hereto. The Foreign Ministry site has no copyright notice pertaining
to the contents of the site. However, copyright is stated for
pictures and maps, which are copyrighted by a third party. An
example (map of Israel) is attached hereto. For comparison,
the terms of use of a commercial site (CNN) are attached hereto.
E. Copyright Policy for Information Disseminated on
the Internet The information that government offices disseminate
over the Internet may be divided into three categories:
1. Material of no commercial value. This
material does not need protection at the commercial level
but may warrant protection at the moral level.
2. Material of commercial value that needs protection.
3. Protected third party material. Permission to present
this material on the site is required, and notice of copyright
thereto must be provided, whether or not the material
has commercial value.
The contents and types of material presented
on the government and Knesset sites are not uniform in terms
of these categories. Therefore, each office should give thought
to its site or sites in order to decide what type and what extent
of copyright protection it needs. For this reason, it seems
that the State should establish a flexible policy in this matter
and avoid creating rigid frameworks.
F. Enforcement of Copyright on the Internet In Israel, copyright
may be enforced if a violation is discovered. Outside Israel,
enforcement is possible only in countries that have signed appropriate
conventions. It is sometimes hard to determine which country
“hosted” the violation. To the best of my knowledge, there is
no specific official in charge of enforcing the State`s copyrights.
(The UK, in contrast, has a special unit for this purpose.)
Therefore, each and every office is independently and separately
responsible for enforcing copyright in its own publications.
G. The Future of State Copyright Israel
is currently in the process of drafting new copyright legislation
in order to meet international and other requirements. Among
other things, the legislation would remove copyright protection
from certain government material, such as the Knesset Reports,
legislation, and judicial decisions. After the Knesset (parliament)
passes the new Copyright Law, it will be necessary to adjust
copyright notices accordingly.
3. Receiving and Answering Inquiries from the Public by Means of Email
Many sites, both private and governmental, allow users to contact
their organizations generally, or someone specific, for further
information by means of email. I believe this matter should
be addressed in the context of the provisions of the Civil Service
Code (Paragraph 61.3 of the Code, a copy of which is attached
hereto). The Code takes up the matter of receiving and answering
inquiries from the public, in terms of the requirement to respond
before a given deadline (within two weeks), in determining which
personnel may answer inquiries and in defining the format in
which replies be given. It is important to regulate this matter,
considering that a reply over the Internet may reach innumerable
people within seconds and can, if “problematic,” cause the State
immense damage.
4. Use of the Internet by Civil Servants as a
Working Tool
A. Provisions of Law, the Civil Service
Code, and Procedure It should be self-evident (but is not
so in the Internet culture) that use of the Internet is subject
to the laws and rulings that would normally apply to the user
in any other context. When the user of the Internet is an employee
of a government office, he or she is also subject to the provisions
of the Civil Service Code and the procedures of his/her office.
Thus, for example, employees may not use the Internet to publish
incitement to racism, perpetrate a fraud, commit libel, violate
a copyright, or publish information in violation of the Protection
of Privacy Law or of Paragraph 117 of the Penal Law. However,
employees` use of the Internet creates new problems that are
totally unregulated, even by the Civil Service Code. Should
rules be introduced on choice of user names in order to keep
users from choosing names that may offend the dignity of the
state? Should there be rules in the matter of downloading freeware
or shareware from the Internet? A special problem in the use
of the Internet by state employees concerns employees` personal
responsibility for things done on the Internet under their user
names. In other words, not only are employees subject to the
provisions of law and procedure with respect to their own conduct
at the Internet terminal, but they must also ascertain that
other employees do not make illegal or unsupervised use of their
user names. I believe the government should consider introducing
procedures (published in the Civil Service Code, the Administrative
Code, or both) governing employees` use of the Internet. Attached
herewith are guidelines that we issued at the Central Bureau
of Statistics when the Bureau first began using the Internet
as a working tool in September 1996. After we learn the lessons
in another two months or so, we shall update the procedural
provisions in order to address matters that initially escaped
our attention.
B. Email on the Internet Unencrypted email should not be
used on the Internet to transfer information or documents that
come under the confidentiality requirement in Paragraph 117
of the Penal Law, or any other sensitive information which,
if disclosed by an unauthorized party, may be harmful to the
office or to the State. Apart from creating rules regulating
employee use of email, policy should be established as to the
confidentiality of employee email vis-a-vis supervisors. In
other words, if a policy authorizing supervisors to review email
correspondences is introduced, employees should be informed
of this policy in order to prevent them from suing on grounds
of invasion of privacy. (This matter actually has been taken
up by American courts.)
C. Participation in Discussion Groups
Employees may participate in Internet discussion groups in order
to keep professionally up to date. In principle, this is desirable.
However, posting a note to a discussion group in a professional
matter pertaining to the employee`s duties seems equivalent
to “publishing publicly,” which comes under the provisions of
Paragraph 42.53 of the Civil Service Code (attached herewith).
I doubt that these provisions are appropriate for participation
in discussion groups. (One would have to obtain permission for
every message published.) Because this is a new kind of publishing
and is meant in principle to improve the employee`s professional
level, one wonders how stringently this activity should be regulated.
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