Randazza: Reversal of Fortune in Taiwan for Porn Producers

Feb 25, 2014 9:30 AM PST

LAS VEGAS — A Taiwanese court decision last week reverses the fortunes of porn producers seeking to enforce their rights in the Chinese republic. 

In 1999, a Taiwanese criminal decision determined that pornographic works were not subject to copyright protection under Article 3 of the Taiwanese copyright Act. The court determined that given the fact that protecting the works was contrary to public policy, they were not subject to copyright protection in Taiwanese courts. This led anti-copyright voices worldwide to celebrate an apparent victory – that porn was not copyrightable in at least one country. 

After this decision, commentators noted the tension between the Taiwanese Intellectual Property Office (TIPO) and the Taiwanese Courts. In Case 250 of 1999, the Taiwanese Supreme Court held that since pornography is against social order and the public interest, it is not subject to copyright protection. This was affirmed in Taiwan High Court appeal No. 94 of 2005.

However, TIPO maintained the position that as long as the works are original, they are copyrightable – even if deemed to be legally obscene.This is the position that U.S. courts have taken as well – that obscenity and copyrightability are not intertwined. 

The disconnect between TIPO and the Taiwanese courts was likely due to the fact that TIPO is in a superior position to evaluate international agreements, and the Taiwanese Supreme Court position is contrary to international accords. The Berne Convention requires all member states to protect copyrighted works from all other member states.

While Taiwan is not a member of the Berne Convention, it is a member of the WTO. In order to join the WTO, Taiwan had to sign on to the TRIPs Agreement – which incorporates the first 21 Articles of the Berne Convention. Back-doored into the Berne Agreement’s provisions on copyright, Taiwan was in a quandary – as its high court decisions were placing it in violation of the TRIPs Agreement. 

However, last week, the Taiwanese Supreme Court appears to have accepted TIPO’s view and agreed that copyright protection was available to pornographic works. Despite this, given the language from news reports about the ruling (at the time of this article, the ruling itself was unavailable), it appears that the Taiwanese high court reluctantly recognized the copyrightability of the pornographic content of the subject Japanese film due to the fact that international treaties (namely TRIPs) created such an obligation -- if they are copyrighted in their country of origin.

Interestingly enough, it appears that the Taiwanese court granted protection to the Japanese porn films only out of obligation to its international agreements.

The decision implied that domestically owned pornographic copyrights are not protected in Taiwan. This dichotomy is permissible under Berne and TRIPs, because those agreements require that member states treat citizens of all other member states equally, but the agreements give members states the right to discriminate against their own citizens. 

In any event, it now seems that Taiwan is no longer a porn-piracy free-fire zone.

As far as Taiwanese producers go, they may still find themselves without a legal remedy. However, this is easily cured. If the producers simply create a foreign corporation, that corporation can be the initial copyright owner. At that point, the Taiwanese courts will be obliged to protect the works, even if the beneficial owners of the works are still Taiwanese nationals. 

Marc Randazza is the managing partner at Randazza Legal Group. The firm has offices in Las Vegas and Miami, both specializing in intellectual property, First Amendment and Internet law. The author recently completed an LLM degree in international intellectual property Law administered by the World Intellectual Property Organization and the University of Turin Faculty of Law in Italy.

(c) Marc Randazza.

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