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.

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.
These producers took their complaints to Taiwan's legal system and received this response.
Taiwan's prosecutors said Wednesday that Taiwanese firms that use Japanese-made pornographic films to make profits online have not violated Japanese producers' copyrights.

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.
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.

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.




Reader Comments (rss)

(Flattened / Threaded)

  1. This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Mar 26th, 2013 @ 1:38pm

    Deja vu. Gave the link just today.

    Way ahead of you as usual. Knew you'd get to it eventually, irresistible to Techdirt fanboys.

    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.

     

    reply to this | link to this | view in thread ]

  2.  
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    That One Guy (profile), Mar 26th, 2013 @ 1:49pm

    Didn't exactly think that one through

    Assuming the second tactic had worked, and their products were deemed to be illegal to distribute... how exactly were they planning to sell their product at that point?

     

    reply to this | link to this | view in thread ]

  3.  
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    Divide by Zero (profile), Mar 26th, 2013 @ 1:57pm

    In 2010 things came to a head

    As porn so often does...

     

    reply to this | link to this | view in thread ]

  4.  
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    Machin Shin (profile), Mar 26th, 2013 @ 2:00pm

    Re: Didn't exactly think that one through

    Well, they are just proving once again, they do not care about selling their product and making money. It is all about stopping those darn pirates.

     

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  5.  
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    Anonymous Coward, Mar 26th, 2013 @ 2:01pm

    You'd think if anybody would know to not piss off the Japanese it'd be China.

     

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  6.  
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    Gwiz (profile), Mar 26th, 2013 @ 2:02pm

    Re: Deja vu. Gave the link just today.

    lolwut?

    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.

     

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  7.  
    identicon
    AC Unknown, Mar 26th, 2013 @ 2:04pm

    Re: Re: Deja vu. Gave the link just today.

    OOTB is a troll. Of course the link makes no sense.

     

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  8.  
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    Anonymous Coward, Mar 26th, 2013 @ 2:06pm

    "In 2012, the argument was made that pornography doesn't "promote progress," therefore it should not be entitled to copyright protection."

    Why is this bad again? I don't understand how movies, tv and music can be justified to have protection that inhibits technological progress.

     

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  9.  
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    dbcch, Mar 26th, 2013 @ 2:17pm

    i agree with taiwan

    While I appreciate the author's view that this is a slippery slope, I can't help but think porn *is* different, even if it is very hard to define what porn is (but you know it when you see it). Porn is NOT a good thing for society, period. It should NOT be afforded any copyright protections. Perhaps in doing so it will help to stifle this massive, evil industry of moral corruption.

     

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  10.  
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    madasahatter (profile), Mar 26th, 2013 @ 2:20pm

    I wonder about reach

    Though the rulings only apply in Taiwan I wonder if someone would make the argument in the US or Canada that porn should be copyrighted and point to these rulings. The US Constitution say patents and copyrights are for the promotion of "useful arts" and one could argument that porn is not included by a similar line of reasoning.

     

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  11.  
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    madasahatter (profile), Mar 26th, 2013 @ 2:21pm

    I wonder about reach

    Though the rulings only apply in Taiwan I wonder if someone would make the argument in the US or Canada that porn should be copyrighted and point to these rulings. The US Constitution say patents and copyrights are for the promotion of "useful arts" and one could argument that porn is not included by a similar line of reasoning.

     

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  12.  
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    dbcch, Mar 26th, 2013 @ 2:25pm

    Re: I wonder about reach

    I hope someone does. To readers, note that nobody is saying porn should be illegal, just that is should not be protected by intellectual property laws. Of course, in the US, it surely will always continue to be, since we are operating under the absurd notion that virtually everything should be protected, such as the patentability of business methods
    .

     

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  13.  
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    gorehound (profile), Mar 26th, 2013 @ 2:45pm

    Suck, Fuck, Suck, Fuck ,Suck , Fuck.................Start over from beginning and repeat.

    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.

     

    reply to this | link to this | view in thread ]

  14.  
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    peter, Mar 26th, 2013 @ 3:01pm

    Ahem

    "In 2010 things came to a head"

    Sorry, but I just had to

     

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  15.  
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    Donnicton, Mar 26th, 2013 @ 3:07pm

    Re: Deja vu. Gave the link just today.

    Wait what? This time around Mike called the ruling against content owners disappointing and you're unhappy about that too?

    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.

     

    reply to this | link to this | view in thread ]

  16.  
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    That One Guy (profile), Mar 26th, 2013 @ 3:12pm

    Re: Re: Didn't exactly think that one through

    "Nurse, get me a suction hose and a bone saw."

    "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!"

     

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  17.  
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    Anonymous Coward, Mar 26th, 2013 @ 3:16pm

    Re: I wonder about reach

    One could also use an identical argument to say that "Charlie's Angels: Full Throttle" was not a useful art and did not justify copyright protection. It was a derivative, mindless, and terrible movie.

    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.

     

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  18.  
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    NaBUru38 (profile), Mar 26th, 2013 @ 4:12pm

    Definition

    Tim, I love the way you wrote the article. Yes, the content is good too, but it's hard to do tasty stuff out of this subject.

    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.

     

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  19.  
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    OldMugwump (profile), Mar 26th, 2013 @ 5:10pm

    It's not creative

    I don't know what the Taiwanese court was thinking, but I can imagine an argument that porn isn't "creative". Charlie's Angels might be bad art (or just bad), but it did presumably have a script and a plot, even if a bad one.

    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.)

     

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  20.  
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    Ninja (profile), Mar 26th, 2013 @ 5:16pm

    I'd say Japanese took a blow but that would be too pixelated =/

     

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  21.  
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    Ninja (profile), Mar 26th, 2013 @ 5:21pm

    Re: It's not creative

    It all depends on the point of view. There are porn with plots (I'd risk saying better than Charlie's Angels?) and some are actually entertaining to some point. There are amusing parodies. There are plain raw sex porn and those like X-Art or something (cant recall the producer) that seem to be aimed at the female audience somehow.

    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".

     

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  22.  
    identicon
    John Doe 8, Mar 26th, 2013 @ 5:40pm

    HERE I AM!

    Rock you like a hurricane!

     

    reply to this | link to this | view in thread ]

  23.  
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    Ninja (profile), Mar 26th, 2013 @ 5:46pm

    Re:

    Japanese porn producers*

     

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  24.  
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    bob, Mar 26th, 2013 @ 6:29pm

    Curse you, Taiwan!

    How will honest content producers produce their content now? Silly, stupid Big Google pirate nation.

     

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  25.  
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    Wally (profile), Mar 26th, 2013 @ 6:39pm

    I guess you could say that the Kama Sutra is public domain...but the way you translate it and present it, that is certainly copyrightable. It isn't the art of the acting...that has been around for ages...oh no, it is the cinematography, makeup, and directing...I leave out music because everything I have heard sounds the same.....but certainly the art of depicting and recording "the arts" could easily be copyrightable. It is the copyright trolls who kill it, not copyright.

     

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  26.  
    identicon
    Anonymous Coward, Mar 26th, 2013 @ 7:17pm

    Re: Deja vu. Gave the link just today.

    Poor out_of_the_blew_you_know_who ;)
    You don't like this story? I figured it would be right up your alley as it's extra salty.

     

    reply to this | link to this | view in thread ]

  27.  
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    Rapnel (profile), Mar 26th, 2013 @ 7:51pm

    Isn't this right about when the US government exerts some influence over the arts and arms sales?

    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.

     

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  28.  
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    ByteMaster (profile), Mar 26th, 2013 @ 10:29pm

    pr0n.tw

    All Our Pr0n Belong To Everyone!

     

    reply to this | link to this | view in thread ]

  29.  
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    Rekrul, Mar 26th, 2013 @ 11:03pm

    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."

    Isn't that exactly what US courts do in obscenity cases?

     

    reply to this | link to this | view in thread ]

  30.  
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    G Thompson (profile), Mar 26th, 2013 @ 11:07pm

    Re: i agree with taiwan

    Porn is NOT a good thing for society, period.

    Why? and whilst you're at it define 'porn'

     

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  31.  
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    G Thompson (profile), Mar 26th, 2013 @ 11:12pm

    Re: Re: I wonder about reach

    Copyright and Patents are two totally different and separate legal structures.

     

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  32.  
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    Anonymous Coward, Mar 27th, 2013 @ 2:16am

    Re:

    Whip, Beat, Whip, Beat, Whip, Suck, Beat, Whip, Fuck............start over from beginning and repeat.

    Not referring to Fifty Shades Of (Edward)Gray, are we?

     

    reply to this | link to this | view in thread ]

  33.  
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    Anonymous Coward, Mar 27th, 2013 @ 2:18am

    Sooo... does that mean Taiwan can become a haven for pirate porn trackers?

    It's obscene material, and not covered by copyright after all.

     

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  34.  
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    cpt kangarooski, Mar 27th, 2013 @ 5:41am

    Re: I wonder about reach

    The US Constitution say patents and copyrights are for the promotion of "useful arts"

    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.

     

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  35.  
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    DannyB (profile), Mar 27th, 2013 @ 6:39am

    Expansion of definition

    I think the Taiwan Supreme Court has the right idea.

    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!

     

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  36.  
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    btrussell (profile), Mar 28th, 2013 @ 2:52am

    Fuck art?

     

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  37.  
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    John Smith, May 2nd, 2013 @ 5:00am

    Unintended repercussions.

    Interesting to consider but this ruling also means that in Taiwan, if a person makes a ``home video'' then anyone who picks it up can sell it or distribute it without asking the participants if it is okay to do so.

     

    reply to this | link to this | view in thread ]


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