Pornographic Films are Eligible for Copyright Protection
On May 8th of 2015, Taiwan Taipei District Court rendered a decision holding that a work containing obscenities regarding pornography may still be eligible for copyright protection. The decision is deemed a deviation from earlier opinions made by the Taiwan Supreme Court in 1999 which opined that pornographic works shall not be copyrightable for they are against the public order and morality. This district court decision affirms that a work with minimal originality containing obscene information shall still be subject to copyright protection. As ruled, copyright protection should be considered separately from the evolvement of social evaluation about a given idea, because public order and morality is not a constituent requirement for copyright eligibility.
The decision suggests a dual-criterion system to treat a pornographic work, namely: the protection of a work shall be determined by the Copyright Act, whereas the Criminal Laws shall govern when a case involves distribution of pornographic and obscene works.
Foreign Adult Films Played on a Website without Licenses
A Japanese adult film manufacturer (Plaintiff) sued an online video space provider and its contracted video suppliers (Defendants) for copyright infringement. The video suppliers had uploaded altogether more than two hundred adult films to the space provider’s designated online space for registered members to view on demand. When a registered member finds the film interesting after sampling a snapshot, he or she may pay by credits to view the whole content. The Plaintiff alleged that the Defendants distributed those adult films without obtaining any license from the Plaintiff.
Copyright Protection for Pornographic Works is an Embodiment of Constitutional Freedom of Speech
The Court in the ruling outlined the constitutional rights and the legislative purpose of copyright law. The Constitution grants people the freedom to speech, teaching, writing and publication, and they collectively are known as "freedom of expression." The expression of sexual speech and circulation of sexual information, regardless of whether it is for the profiting purpose or not, shall also be subject to the protection of freedom of expression, pursuant to the Interpretation of Constitutional Law No. 617 by the Justices of the Constitutional Court. On the other hand, the Copyright Act seeks to ensure that the constitutional protection for fundamental property right will be materialized on the protection for human’s mental creations and intellectual production. It is a drive to promote the cultural development of the state. Therefore, the Court added, whether the right to properties can be realized is depending on sufficient protection over the freedom of expression.
However, the Court explains that freedom of speech is not an absolute privilege without any boundary. A free speech will be subject to different scope of protection and reasonable limitation based on the nature of a given case. As such, the legislators are empowered with discretion to impose necessary restrictions by laws and regulations according to the principle of proportionality.
Public Order and Morality Not a Requirement for Copyright Protection
The Copyright Act, unlike the Patent Act or Trademark Act, has never been enacted to expressively exclude an obscene work from copyright. A work shall deserve protection so long as it contains a minimum of originality. Beyond that, Copyright Act does not stipulate additional requirements for a copyrightable work. Furthermore, Article 9 of the same Act lists out all the non-copyrightable subject matter, suggesting that a given work that is not excluded shall be copyrightable. Since a contradiction to “public order or morality" is not statutory criterion, an adult film having originality should therefore deserve copyright protection.
A work, as defined by the Copyright Act, is a creation that is within a literary, scientific, artistic, or other intellectual domain. It is an original creation of human knowledge or culture. Copyright eligibility depends on whether the work is an original production made from intellectual investments. Hence, whether a work is in line with any social values does not affect its copyrightability.
Implementing Criminal Law against the Distribution of Obscene Works
However, the Court continues to hold that the distribution and publication of obscene works shall be subject to criminal punishment under Article 235 of the Criminal Act. The Court reasons that copyright protection is a neutral determination without involvement of any value assessment. As described, if a copyrighted work is inherently obscene, the law may impose a limitation barring the exploitation of that work. For the definition of "obscenity," the Interpretation of Constitutional Law No. 617 provides a guidance to categorize such information into either “hardcore” or “softcore” information. For the former case where a work presents mere and outright violence, abuse, or bestiality while no artistic, medical, or educational characteristics may be found, the work is per se illegal and any distribution of such "hardcore" information in any form is criminally liable. On the other hand, for the latter degree of obscenity, it will be liable only if the works are distributed in a way that the distributor fails to adopt necessary and secure measures to isolate the works from being freely accessed by the general public. In other words, the rights holder will be prohibited from any kind of dissemination for, i.e., the "hardcore" content, and from distributing, broadcasting, selling, or displaying the adult films of "softcore" content in public without adopting lock code measures. Any breach of this very clause will result in a maximum of two-year incarceration or a fine of thirty thousand New Taiwan dollars.
Defendants were Found not Guilty
Although in this case the phonographic films were deemed copyright protected and the defendants were deemed infringing the copyright, the defendants were however found not guilty and the Japanese rights holder was not awarded any damages from the court. The Court found that the defendants did not realize their acts of distribution being infringement of copyright. Article 16 of the Criminal Act stipulates that, “[c]riminal responsibility shall not be excused simply because of ignorance of the law unless there are rightful reasons for being unable to avoid the offense, but the punishment may be reduced according to circumstances..” At the time of the occurrence of infringement, the Supreme Court and its subordinate levels of jurisdiction ruled in precedent cases that adult films are not copyright eligible. It was foreseeable that the defendants, based on their social status, cognitive capability, and the common understanding in this industry, would believe the information obtained from their accessible information resources including legal consultants and the Internet. It seemed impossible to expect a defendant to acquire sufficient licenses or permission before distribution of the adult films in view of the previous judicial opinions and therefore there were rightful reasons for being unable to avoid this particular offense.
This judgment may bring benefits to Taiwan both domestically and internationally. On one hand, it provides a comprehensive legal argument for the appellate court and other courts to consider. On the other hand, it may help Taiwan to comply with Article 9.1 and 41.1 of the TRIPs Agreement as well as Article 5.1 of the Berne Convention, where pornographic works are copyright eligible in many other contracting member states. This case has attracted public attention and whether the opinions will be adopted by the appellate court and followed by other courts remains to be observed.
 Article 5(1) of the Berne Convention: Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.