Mariano, Maria Antoniette: Copyright and Pornography in a Global Context

SY 2008-2009, First Semester


EXECUTIVE SUMMARY

The lack of regulation of the production of pornography in one country leaves pornography performers exposed to substantial risks. Producers of pornography typically respond to attempts to regulate pornography as infringements upon free speech. At the same time, large corporations involved in the production and sale of pornography rely on copyright law’s complex regulatory framework to protect their pornographic content from copying and unauthorized distribution. These user-generators produce their own pornography, often looking to monetize their productions themselves via advertising revenues and subscription models. Much like their corporate counterparts, these user-generators may increasingly rely on copyright law to protect their creations in the future.

While legal scholars have addressed the copyright law’s role in incentivizing the creation and consumption of creative content in general, its effect on the creation and consumption of pornography as largely been ignored. Since pornography performers are at risk of abuse by the creators of pornography, particularly those that are filmed or photographed unknowingly or those who have sexual images of themselves distributed against their wishes, it is important to consider what approaches there may be to reduce that risk, including the possibility of altering the copyright framework with respect to pornography.

Copyright laws do not provide ownership interests or control mechanisms to the subjects of pornographic material, and instead permits the creators to benefit at the expense of the subjects when their participation has not been consensual. Providing this type of control – namely by requiring the creator to show that the subjects’ participation was voluntary as a condition of providing copyright protection – would help reduce the risks faced by pornography performers. Promulgating a moral approach to structuring copyright protections is already one goal that is animating calls for reform of the current system. Copyright law should link the ability to register and enforce copyrights on pornographic works to the creators’ compliance with a regulatory scheme designed to promote the safety and well-being of pornographic performers by confirming their consent.

THE ISSUES

What would the result be if a work was created illegally? For example, under Philippine law, pornography is illegal. However in the United States, it is a form of expression copyrightable therein. Does it follow the it is copyrightable under our jurisdiction since there is no other statutory language from which it can be inferred that Congress intended that obscene materials could not be copyrighted. Does it suggest that the absence of such limitations in the Intellectual Property Code IP Code) is the result of an intentional policy choice and not simply an omission. There’s a pretty clear public policy against enforcement here. What if a person obtains protection from such illegal work from other jurisdiction, is he accorded protection here in our country by virtue of the said copyrighted materials? Can he be prosecuted for the crime committed which is illegal in our jurisdiction? These are the matters to be dealt with in this humble of work.

DISCUSSIONS

Before proceeding with the main issues, it is my view to have an overview on what copyright and pornography is to have a better appreciation on the subject matter.

What is Copyright?

Philippine copyright law is enshrined in the Intellectual Property Code of the Philippines (IP Code), officially known as Republic Act No. 8293. The law is partly based on United States copyright law and the principles of the Berne Convention for the Protection of Literary and Artistic Works. Unlike many other copyright laws, Philippine copyright laws also protect patents, trademarks, and other forms of intellectual property. [1]

The IP Code does not actually define the word. To put it simply, this is a right afforded to the creator of a work to control and protect such work. In a sense, the law provides a pseudo monopoly to a creator over his work. Such “rights” are limited and have several exceptions. [2]

Copyright is a set of exclusive rights granted by government for a limited time to regulate the use of a particular form, way or manner in which an idea or information is expressed. Copyright may subsist in a wide range of creative or artistic forms or “works” and subject matter other than works. These include literary works, movies, musical works, sound recordings, paintings, photographs, software, live performances, television or sound broadcasts and in some jurisdictions industrial designs.

Copyright is a type of intellectual property; designs or industrial designs may be a separate or overlapping form of intellectual property in some jurisdictions. [3]

Copyright law only covers the particular form or manner in which ideas or information have been manifested, the “form of material expression”. It is not designed or intended to cover the actual idea, concepts, facts, styles or techniques which may be embodied in or represented by the copyright work.

Copyright law provides scope for satirical or interpretive works which themselves may be copyright. [4]

International Copyrights

There are no “international copyrights” that enable you protect your work throughout the world.

However, most countries are members of the Berne Convention and the Universal Copyright Convention (UCC), which allow you to protect your works in countries of which you are not a citizen or national. Under these treaties, the following works may be protected: (i) both unpublished and published works of an author who is a national or resident of a country that is a member of these treaties; or (ii) published works, with permission, of an author who is not a national or resident of a country that is a member of these treaties. In this case a work may be considered simultaneously published in several countries if it has been published in two or more Berne Union countries within 30 days of its first publication.

To benefit from the above protection, there are no formal requirements established in the Berne Convention other than having the author’s name on the work. Under the UCC, a copyright notice is required. This notice should consist of the copyright symbol “©” accompanied by the year of first publication and the name of the copyright owner. This notice is to be placed in such manner and ocation as to give reasonable notice of the claim to copyright.

Protection and Enforcement

The enforcement of a copyright often fails because of the lack of evidence that the own creation was there before the imitation.

Since there is no public register for copyright works in contrary to patents, designs and marks, from which the priority of the works could be learned, it is often difficult to proof such priority of copyrighted works.

Accordingly it is important that the author always records his ideas, drafts and compositions. Such documentation should take place continuously during the creative process, as not only completed works, but also drafts and parts are legally protected.

Thereby not only the creation of work itself, but also its exact time of creation must be recorded.

Sometimes in a copyright dispute it can be crucial if it may still be recognized afterwards, whether the own work existed already one week earlier than an imitation and/or a plagiarism. [5]

What is Pornography?

Pornography or porn is the explicit depiction of sexual subject matter with the sole intention of sexually exciting the viewer. It is to a certain extent similar to erotica, which is the use of sexually arousing imagery. Over the past few decades, an immense industry for the production and consumption of pornography has grown, due to emergence of the VCR, the DVD, and the Internet, as well as the emergence of social attitudes more tolerant of sexual portrayals. Performers in pornography are referred to as pornographic actors (or actresses), or the more commonly known title, “porn star”, and are generally seen as qualitatively different from their non-pornographic counterparts.

Pornography may use any of a variety of media—printed literature, photos, sculpture, drawing, painting, animation, sound recording, film, video, or video game. However, when sexual acts are performed for a live audience, by definition it is not pornography, as the term applies to the depiction of the act, rather than the act itself. Thus, portrayals such as sex shows and striptease are not pornography. [6]

The Issues on Pornography

Pornography is a curious example of an issue which has grown very quickly from a state of insignificance to become a major social issue at least in some parts of the world. From the very beginning in the early 1960s of what has been termed the ‘modern pornography wave’, there has been controversy over nearly all aspects of the topic: definition, amounts and contents of material, uses and users, economy and, most importantly, effects. [7]

The issue of pornography is extremely complex, and so is the question of public policy regarding pornography. Numerous commissions and committees have produced several thousands of pages contemplating the issue and scrutinizing several hundreds of research reports. More than a handful of scholarly books in English appear every year, usually not producing new information, but trying to organize and analyze research data already available. [8]

In this complexity, one issue stands out as particularly important: the claim that pornography, or certain forms of pornography, can lead to serious sex crimes, in particular forcible rape. If this can be proved, then there is consensus that pornography, or these particular forms of pornography, should be forbidden. If it cannot be proved that pornography leads to rape, then there is no such consensus.

All other forms of alleged harm or offence, such as pornography degrading women, either as models or bystanders, leading to sexual callousness to women, causing moral outrage, encouraging sexual perversion, or causing marital distress, are usually considered too intangible, or unsupported, or problems that call for a variety of restrictions rather than the total prohibition of (the critical forms of) pornography. [9]

Copyright and Pornography

Who are “we” to decide what is and is not copyrightable, or what is or is not pornographic for that reason. Do we really want to start down the slippery slope of content review to determine whether or not something is worthy of copyright protection? If you open that door, it becomes very difficult to shut, especially when it is difficult to tell what is obscene and what is not (and where that determination depends on community standards). [10]

Even starting that inquiry can be very costly. Copyrights remain unexamined for registration. Do we really want to set up an examination corps to determine whether a work is pornographic? Sure, this might be simple for professed hardcore, but don’t we need to have examination of books, magazines, and even NC-17 rated films in order to avoid due process/arbitrary and capricious claims? [11]

Then, to what end for all this cost and disparate treatment? Pornography will still exist, and denying copyright would likely be counter productive. Given the amount of pornography that is now on the internet and the ease of making “homemade” film a la YouTube, the primary protection measure is technical – password protection, etc. The copyright is only a fallback for mass duplication of non-online works. Even then, an enforced (either through courts or voluntarily) copyright serves to increase the price of pornography, which in turn lowers distribution, which sounds like your goal. Without such protection won’t pornography become more readily and widely distributed? [12]

Empirical question: How many actions are there now to protect pornographic materials? Is copyright really a bestowment that has a noticeable effect today?

The movies were otherwise legal in the U.S. and we were able to seize the grey market copies. Was the owner of these movies really to be denied relief for an otherwise legally protected activity? Is that what the free speech and equal protection are really about? Was it really so bad that there were fewer copies of these movies on the street after the seizure? [13]

Answers to the Questions

We already make decisions about what is copyrightable (and patentable, and protectable via trademark law) all the time. “We” make the same calls about pornography, child pornography, and obscenity as well. Registrants bear the cost of registration. The Copyright Office makes a call on copyrightability, which can be appealed. There are a lot of law review articles questioning the utility of copyright protection in music, movies, dance, computer software, architectural works, etc. but not so with pornography. The topic of the piece is more generally about how IP law can be used to regulate the incidence of criminal behaviour. Should pornographic materials be given protection in this jurisdiction is a question of law on which only the high tribunal could only interpret. To this end it is noteworthy to say that absent a treaty, a copyright is protected only by the state that grants or recognizes it. Thus, a copyright instate X will not e enforced in our country in the absence of a treaty, unless a similar copyright is applied for and granted in the Philippines. Parenthetically, the Philippines is one of the signatories of the UCC, so if state X grants a copyright to a pornographic material, and a Filipino citizen sought after that protection , does it follow that he cannot be prosecuted for an offense which this jurisdiction forbids?

Would a decision to give a different term to pornography (or software) offend the constitution? How about just giving some kinds of expression different kinds of protection? However, there may be a way around content-neutrality. I believe that copyright as instantiated now can be modeled better as a subsidy to the creative industries, not as their divine right.

Sec. 13, Art. XIV, the 1987 Constitution provides:

“The State shall protect and secure the exclusive rights of gifted citizens to their intellectual property and creations, particularly when beneficial to the people as may be provided by law.”

According protection to such illegal acts or creation will run counter to this constitutional mandate because it would not be beneficial but harmful to the society. The UCC must yield to the constitutional mandate. So even if the Philippines is a signatory to the UCC, a copyright owner for a pornographic material cannot use such protection as a shield for an act which is illegal in its nature. Needless to say, there are limitations on the protection of a copyright as aforementioned.


Endnotes

[1] Philippine Copyright Law. Http://en.wikipedia.org/wiki/Philippine_copyright_law. Accessed 22 October 2008

[2] Philippine Copyright. http://www.copyright.ph/. Accessed 22 October 2008

[3] Copyright Protection. http://www.copyright-protection.org/. Accessed 23 October 2008.

[4] Ibid.

[5] Copyright. http://www.copyright.ch/?id=62&leng=1. Accessed 23 October 2008

[6] Pornography. http://en.wikipedia.org/wiki/Pornography. Accessed 24 October 2008.

[7] Pornography, Sex Crimes and Public policy. http://www.aic.gov.au/publications/proceedings/14/kutchinsky.pdf . Accessed 24 October 2008.

[8] Ibid.

[9] Ibid.

[10] Copyright and Pornography. http://www.typepad.com/t/trackback/346373/19707370. Accessed 22 October 2008

[11] Ibid.

[12] Ibid.

[13] Ibid.

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