Israeli Publishers and Hebrew University Reach Historic Agreement on Fair Use

The Jerusalem District Court has approved yesterday a settlement agreement between the Hebrew University and two publishers, the Bialik Institute Publications, and Schocken Books (Schocken is also the publisher of Israel’s Haaretz newspaper). This settlement agreement is a remarkable achievement to the Israeli higher education community, as it contains a mutual recognition that most of the principles that Israeli academic institutions have developed in their Code of Fair Use Best Practices are indeed fair use.

Specifically, the Publishers have recognized as fair use the inclusion of digital excerpts from books and full articles in e-reserves systems, provided that access is limited only to students that are registered in the particular course using an ID number and a password. The University and the Publishers have agreed that those uses constitute fair use and require no permission or payment.

The University and the Publishers have also recognized that fair use includes the production of course packs containing excerpts from books and full articles, as long as course packs are produced on demand, sold at cost, and only to the students enrolled in the course and the relevant academic and administrative staff. The agreement encourages the university to prefer the use of e-reserves to printed course packs.

Notably, the parties have recognized that the use of full articles or 20% of a book constitutes fair use, and while the University has agreed that it would seek permissions for use that exceeds the agreed upon terms, nothing in the agreement shall be construed as derogating from its rights.

The parties have also agreed to reexamine the agreement in 2017, during which they may revisit the definitions of fair use, and decide whether to renew it, negotiate a new agreement, or terminate it altogether.

The agreement was entered into following mediation that the parties agreed to after the Publishers have brought an action for the infringement of their copyrights against the University. The University has also agreed to pay the publisher a sum of NIS300,000 (US$85,000) to cover the Publishers’ legal costs, and in order to settle all claims, which included allegations for reproductions that had exceeded the agreed upon understanding of fair use. The University has not admitted any liability, however.

What I have also found noteworthy is the simplicity and brevity of the agreement, the very minimal and reasonable monitoring requirements that it contains, and the overall commonsense approach that it reflects. Especially noteworthy is the fact that this settlement agreement is not a license agreement; the Publishers do not grant any license to the University, and will not be paid any royalties. Rather it is an agreement recognizing fair use, namely, uses that require neither permission nor payment.

Many Israeli current and former colleagues of mine have contributed in different ways to the conclusion of this important agreement and deserve credit for this accomplishment, especially Niva Elkin-Koren from Haifa University and Orit Fishman-Afori from the College of Management who jointly established and are still running the Higher Education Coalition which drafted the best practices that the agreement incorporates, and Tamir Afori who acted for the Hebrew University.

Here’s a copy of the agreement, in Hebrew.

UPDATE – Dec 3, 2013: Her’e a copy of the agreement translated to English.