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Copyright is meant to protect intellectual property, but the very nature of what can be copyrighted is being called into question. Is porn actually copyrightable or are the smut barons who are going after file sharers barking up the wrong tree?
An American woman is being sued for torrenting a porn flick from blue movie producers Hard Drive. Sadly that’s nothing unusual these days, but what’s interesting is that part of Liuxia Wong’s defence is that porn isn’t copyrightable because it’s an “obscene” work. Wong’s countersuit details:
“Article 1, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United States Congress: ‘To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
“Early Circuit law in California held that obscene works did not promote the progress of science and the useful arts, and thus cannot be protected by copyright.”
If a judge decides that porn isn’t copyrightable under current US law it’ll have massive knock-on affects on the industry – a free for all on all US copyrighted porn movies, not to mention retaliation suits for anyone who’s been sued in the past on the grounds of copyright.
Whether it’ll have a knock-on affect on the UK’s copyright laws of said sordid works, I don’t know (I’m not a lawyer). But porn’s been the forerunner for lots of things in the past. Whatever happens, it’ll certainly be an interesting one to keep an eye on. Creative Commons porn anyone? [TorrentFreak]
If to be copyrighted a item need to “promote the Progress of Science and useful Arts” then most of film, television and music is not covered, Porn can, possibly, claim some educational value.
I don’t know, honestly. It all revolves around what is and what isn’t obscene. Is porn obscene? I guess some people don’t think so.
It’s an interesting defence argument. The flip side of it is, If a person considers it “offensive to morality or decency; indecent; depraved:” why would they want to copy it (or download it illegally). If they don’t then the copyright is valid.
It is an odd call, obscenity not falling into copyright law, some artworks are really obscene, as are some films. It is deeply subjective, as some porn may be classed as works of art more so than some B-movie horrors. And where do you draw the line between porn and art? What makes ’9 Songs’ or ‘The Beast’ an art house film and ‘Deep Throat’ a porn film? But I find that porn and how it is viewed in a culture is a good hallmark to how liberal a country is, places like Holland and Sweden compared to the UK is a good example – I’d state that obscenity in both art and porn push back barriers in a culture, so it does have purpose and progress a country. And it is also a record of what are culture is or was, that this image was illegal porn in 1901, this image was border line in 1979, and this image is mainstream in 2012. I think if someone has taken time to create something, if that be a horse sliced into pieces in an art gallery or moving image of two people having sex then it is a creative work by definition and needs to be protected under law. If it wasn’t for art or porn pushing back barriers then we would live in a world where people are far less liberated and be closed off and repressed.
I couldn’t find any similar clause in the Copyright, Design and Patents Act 1988. As far as I’m aware, pornography falls under film.