03 September 2013

Adult Copyright

Intellectual property students, before going into mourning for Ronald Coase, have presumably noted the judgment [PDF] in Malibu Media LLC v Telefonica Germany GmbH & Ors in Regional Court of Munich (case reference: 7 O 22293/12 of 29 May 2013), attracting attention over the court's finding that because Malibu's films merely showed “sexual intercourse in a primitive way” they were “pure pornography” and thus not entitled to protection under German copyright law.

Malibu had obtained court orders to establish the IP addresses of German-based file-sharers of its films as the basis for damages claims for copyright infringement. Two of the defendants successfully responded that Malibu had not proven that it was the owner of the copyright and had failed to prove that its films had been distributed within Germany and thus under the German copyright regime.

The copyright status of obscene material remains a conundrum for theorists, with some for example claiming that there is in principle protection but that infringement is unenforceable.

'Copyright Protection V. Public Morality: The Copyright Protection Dilemma Of Pornography In A Global Context' by Seong Choul Hong in (2013) 8 Asian Journal of WTO and International Health Law and Policy 301 considers
copyright protection for pornography in a global context, using U.S. obscenity and copyright law as the primary frameworks for legal analysis. Specifically, it examines the relationship between copyright protection and public morals within those countries which prohibit pornography. Until the 1990s, Asian and Middle Eastern countries, which had lagged behind in terms of adopting communication technology such as video tape recorders, did not experience the sexual revolution that the Western societies have experienced from the 1960s. However, in recent years hard-core pornography has become a worldwide commodity owing to the spread of Internet technology and accelerated globalization. In spite of the fact that pirated pornography is rampant in the pornography prohibiting countries, pornography is still generally prohibited and the associated copyright protection are consequently ignored. Although public morality may be used as an ad-hoc reason for making pornography an exception to copyright law, the application of such a policy should be limited and not based on political elites' presumptions but rather on systematic surveys of public morality.
Hong comments that
One of the recent dilemmas in contemporary copyright law is found in disputes about pornography's ability to be copyrighted' in countries where it has been prohibited. The argument concerns with the relationship between international law and domestic law, free trade and public morality, and cosmopolitan and communitarian theories. pecifically are the World Trade Organization's Trade-Related Aspects of Intellectual Property Rights (the WTO's TRIPS) requests the protection of copyright holders' rights regarding the creation and distribution of cultural products including pornography. Contrary to these requests, domestic laws promulgated in many Asian and the Middle Eastern countries deny pornography's legality and reject it as materials that do qualify for copyright protection. This paper discusses copyright protection for pornography in a global context, using U.S. obscenity and copyright law as the primary framework for legal analysis. Specifically, the "contemporary community standards" criteria put forth by the U.S. Supreme Court in the Miller case is considered to be dispositive and is expected to provide useful implications for countries prohibiting pornography in the present globalized world. Pornography is a popular commodity and a cultural symbol in the United States and the Western world. However, no later than the 1960s, even in Western societies, the creation of pornography had traditionally been, not an absolute right, but subject to regulation and censorship. Although the U.S. Constitution does not specifically stipulate that a work must be free from obscenity before it is entitled to copyright protection, the courts presumed that a work was free of obscenity or indecency before its author could claim the benefits of copyright. It was in the late 1970s when a U.S. district court ruled that the simple assertion of obscenity was unsuitable for an affirmative defense to a copyright infringement claim. 
This ruling became a turning point for the judgment that whether or not pornography may be legally copyrighted. As a result, pornography then became a commodity and has burgeoned into a cultural symbol in the United States. By the year of 1985, the adult home video market, including both sales and rentals, was approaching US$1 billion, a figure that rose to an estimated US$3.1 billion in 1995. This figure has dramatically leaped to US$8.65 billion in 2006. In fact, the ruling reflects dramatic changes in sexual behavior owing to the growth of liberal ideas, the introduction of birth control pills, popularity of adult magazines, and the invention of video recorder technology in the 1960s and 1970s.  As the social climate changed, the courts began to adjust their concept of contemporary community standards in judging obscenity.  When the U.S. Supreme Court affirmed that obscene materials were not protected by the First Amendment in 1973, it had to include, at the same time, non-obscene pornography as a kind of speech under the protection of the First Amendment and the copyright laws. Owing to the content-neutral principle of copyright law, therefore, even obscene materials were subsequently allowed to be copyrighted. Recently, the U.S. pornography industry has expanded its territory beyond its national boundaries via the Internet. In particular, pornography and obscene materials are able to move freely through peer-to-peer ("P2P") file sharing networks. Thus, the "pornified society" has become a global phenomenon. Nonetheless, many countries still do not permit producing and distributing pornography, and in those countries copyright of pornography are commonly ignored, regardless of the prevalence of pornography. For such reason, the infringers of pornography copyright in aforementioned countries are mostly indicted for violation of obscenity laws, but not of copyright law. Even though these countries have promulgated copyright law, yet obtaining remedies for copyright infringement in the context of pornography remains rare. With a wide dissemination of Internet technology, accelerated globalization and the continuing expansion of free-trade agreements ("FTAs"), the uneasy cohabitation of pornography and copyright began to be threatened. For example, Japanese and U.S. pornography producers claimed that the copyright of their pornography was infringed in Korea in 2009 and in Taiwan in 2010.
How can we explain the different application of copyright law between the pornography-permitting countries and the pornography-prohibiting countries? How can we reconcile the conflicting interests between copyright holders and public morality? In order to answer these questions, Part I of the current study explores the development of pornography copyright in the United States at three distinct stages: the separation of pornography from obscenity; its acquired legitimacy; and its qualification as an exclusively reproducible right, since the defensive claims against copyright infringements have lost their effectiveness through the above mentioned stages.
Then, in Part II, this study investigates how the copyrighting of pornography functions in those countries where pornography has been historically prohibited. Considering the fact that the widespread dissemination of pirated pornography in pornography prohibiting countries has led to potential trade disputes, quite beyond the moral and social issue, the copyrightability of pornography is an ongoing controversy in urgent need of being settled, regardless of what the legal status of pornography might be in those countries. Thus, the current study suggests that those countries must reconsider their current obscenity laws and to distinguish acceptable pornography and unacceptable obscene materials in legal terms, while in consistent with contemporary community standards. Once the people of a country are exposed to pornography and their moral values have been altered by such exposure, the country should modify their relevant laws and embrace the copyrighting of pornography. However, if the average adults in such a country are strongly opposed to hard-core pornography, it may consider the public morality exceptions as an ad-hoc measure in response to conflicts over copyrighted pornographic material. Nonetheless, the exception should be not abused and must be employed in a limited fashion, as an ad-hoc policy.