Taiwan Supreme Court Says Porn Not Covered By Copyright
from the we-know-it-when-we-see-it dept
The awkward question of whether porn can be covered by copyright (and not much else, amirightgents?) has been debated a time or two on this side of the world. In 2011, some discussion revolved around the protection of "obscene materials," namely the protection extended to porn by the Fifth Circuit Court in a 1979 case involving a porn producer and a chain of adult theaters. This decision was cited in a lengthy footnote appended to a lawsuit filed by Liberty Media against 18 John Does.
In 2012, the argument was made that pornography doesn't "promote progress," therefore it should not be entitled to copyright protection. This particular argument is a rather dangerous one (and composed almost entirely of slope grease) as it puts the extension copyright protection in the hands of the court and allows it to determine whether a piece of erotica is art or "just porn." (The case was closed before this conversation could really get started.)
On the other side of the world, Japanese porn producers are finding themselves battling this very argument.
For years producers of porn movies in Japan have bemoaned the lack of protection their content has received in Taiwan.These producers took their complaints to Taiwan's legal system and received this response.
In 2010 things came to a head. The leading producers of the 20,000+ adult movies released in Japan each year warned Taiwan that if it didn’t get tough on pirates selling their content on websites and even airing it on TV, legal action would follow.
Taiwan's prosecutors said Wednesday that Taiwanese firms that use Japanese-made pornographic films to make profits online have not violated Japanese producers' copyrights.Despite the producers' arguments that each film was unique and expressed singular artistic vision, prosecutors refused to budge, stating that Taiwan's Supreme Court affords copyright protection only to "works of literature, science and arts." According to the court, porn is not included, therefore it has no "copyright" to be infringed.
The Taipei District Court's Prosecutors Office therefore announced it will not press charges against Elta Technologies Co. Ltd, and 10 other Taiwanese firms that the Japanese studios accused of violating their copyrights.
This disappointing decision prompting the Japanese porn producers to take another approach, and start calling the kettle black... for litigious reasons.
In a sign of how desperate they had become, the Japanese companies added that if they had no remedy under copyright law, they would sue the pirates for spreading obscene material and damaging the health of Taiwan’s children.
As crazy as it sounds this approach had the potential to work. While authorities have done nothing to protect copyrights of adult material, they do arrest people for distributing obscene material.Ah, the "for the children" tactic. It's been used here before as justification for SOPA and various computer-snooping plans. This is a bit different, however, as it flips the script on the pirates, turning them from enemies of porn producers to enemies of the state. It's an approach that takes a very oblique angle, but when the usual stuff isn't working, it's time to bust out the "just-crazy-enough-to-work" options.
Unfortunately, it didn't work. (Not crazy enough??)
[T]he adult producer’s claims that the pirates were spreading obscene material and damaging children didn’t gain any ground either. The prosecutors decided that since the pirate sites displayed warnings and blocked minors from accessing their websites then there was no case to answer there either.At this point, it looks as if Japan's porn producers are out of options, at least in terms of preventing piracy in Taiwan. The court tells them their work is too dirty to protect. They counter by saying their work is too dirty to distribute. The court says (paraphrasing) "It's ok, these sites are using protection." I doubt these producers really want to push the issue of having porn declared a protectable art form and leave the defining line between protectable art and unprotected obscenity in the hands (and minds) of government officials. Perhaps these producers should just concede the battle and focus on areas where they have the protection, or at least, paying customers.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright, porn, supreme court, taiwan
Reader Comments
Subscribe: RSS
View by: Time | Thread
Deja vu. Gave the link just today.
http://www.techdirt.com/articles/20130325/09000722453/hbo-admits-that-perhaps-cable-free -access-might-possibly-make-sense-one-day-maybe.shtml#c70
It's a possible laboratory, but difficult to measure.
[ link to this | view in thread ]
Didn't exactly think that one through
[ link to this | view in thread ]
As porn so often does...
[ link to this | view in thread ]
Re: Didn't exactly think that one through
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Deja vu. Gave the link just today.
What does your link to your own comment that has a link to a story about YouTube introducing paid subscriptions have to do with the Tiawan Supreme Court decision concerning porn?
I am missing the connection there.
[ link to this | view in thread ]
Re: Re: Deja vu. Gave the link just today.
[ link to this | view in thread ]
Why is this bad again? I don't understand how movies, tv and music can be justified to have protection that inhibits technological progress.
[ link to this | view in thread ]
i agree with taiwan
[ link to this | view in thread ]
I wonder about reach
[ link to this | view in thread ]
I wonder about reach
[ link to this | view in thread ]
Re: I wonder about reach
.
[ link to this | view in thread ]
Sounds like every Porn Film ever made !
Whoops, me bad I forgot.
Whip, Beat, Whip, Beat, Whip, Suck, Beat, Whip, Fuck............start over from beginning and repeat.
[ link to this | view in thread ]
Ahem
Sorry, but I just had to
[ link to this | view in thread ]
Re: Deja vu. Gave the link just today.
As much as I hate resorting to ad homs, how fucking stupid are you? You hate it when he is "against" content owners, you hate it when he's "for" content owners, what the hell is even your argument?
This is the shit that proves that you're nothing but a troll script that does nothing except tries to see how quickly it can gets its comments reported into invisibility.
[ link to this | view in thread ]
Re: Re: Didn't exactly think that one through
"But doctor, the patient only has a mild burn along the arm, wouldn't some burn ointment be-"
"Dangit nurse, we're going to save this patient's limb even if we have to cut it off, now get me that saw!"
[ link to this | view in thread ]
Re: I wonder about reach
The whole way the useful arts are promoted is that a whole lot of people make a whole lot of work, most of which is absolute crap. A small fraction of the work turns out to be important, and progress has been achieved. For that matter, many works that were later decided to be important (Naked Lunch, Howl, Lady Chatterley's Lover, Catch 22) were originally thought to be worthless and/or obscene.
Trying to apply different tiers of IP law to movies based on the value of their content isn't a slippery slope, it's more of a bottomless pit. Copyright law is terrible enough, without asking courts to make value judgements about the worth of content.
[ link to this | view in thread ]
Definition
The problem with that definition is that it mixes things. "Literature" is a technical definition of a work (text), just like "photography", "illustration", "audio" and "film". That's how you classify works in such a law: by media.
But "arts" and "science" is another completely different thing: it's subject or intent, just like "entertainment" and "journalism". By that definition, sports films and advertising illustrations don't have author rights.
[ link to this | view in thread ]
It's not creative
One could argue that porn isn't covered by copyright because it lacks a creative element.
(It might be procreative, but that's not the same thing.)
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: It's not creative
You see I do think there is good porn and bad porn just like movies. And a lot of it remains to subjective evaluation. But it is a form of expression and I'd even say art. Some of it bad, tasteless, ugly or offensive. But still art.
The Taiwanese court judged with its moralism, not with impartiality. While I disagree with copyright as it is today "Give to Caesar what belongs to Caesar".
[ link to this | view in thread ]
HERE I AM!
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Curse you, Taiwan!
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Deja vu. Gave the link just today.
You don't like this story? I figured it would be right up your alley as it's extra salty.
[ link to this | view in thread ]
As small(ish) as the ruling is it is a kink in the armor.
Now we just need to work on a proper interpretation of "for a limited time".
And then "they" can get back to creatin' things. That cow's been milked, time to eat it.
[ link to this | view in thread ]
All Our Pr0n Belong To Everyone!
[ link to this | view in thread ]
Isn't that exactly what US courts do in obscenity cases?
[ link to this | view in thread ]
Re: i agree with taiwan
Why? and whilst you're at it define 'porn'
[ link to this | view in thread ]
Re: Re: I wonder about reach
[ link to this | view in thread ]
Re:
Not referring to Fifty Shades Of (Edward)Gray, are we?
[ link to this | view in thread ]
It's obscene material, and not covered by copyright after all.
[ link to this | view in thread ]
Re: I wonder about reach
No, patents are meant to promote the progress of the useful arts, copyrights are meant to promote the progress of science, by which was meant, in the now slightly archaic English of the 18th century, knowledge. There once was a morality exception for patents, which resulted in the Patent Office refusing to issue patents for contraceptives. So it's possible that had anyone been foolish enough to try to register a copyright on porn back in the day, it would've been rejected. But I think it's better to let copyrights and patents stay neutral on the subject.
[ link to this | view in thread ]
Expansion of definition
1. Pr0n should not be covered by copyright.
2. Pr0n is difficult to define.
3. If copyright can be expanded beyond all bounds of sanity, then the fuzzy definition of Pr0n should also be able to expand to cover all works presently under copyright.
To infinity and beyond!
[ link to this | view in thread ]
[ link to this | view in thread ]
Unintended repercussions.
[ link to this | view in thread ]