Asia IP

The IP court in Taiwan recently ruled that offshore pornographic videos were under copyright protection in Taiwan, setting the precedent for future cases of similar kinds.

Producers of legitimate Japanese pornography claimed that two men selling adult videos in Taiwan had violated their copyright, and filed a lawsuit against the men, who were then prosecuted by the Taipei District Prosecutors Office.

The IP Court found that three seized videos were “soft-core” pornography and that while reasonable measures could be taken to control the distribution of such a work, that does not negate that the works were entitled to copyright protection.

The two men were sentenced to six months’ in prison.

This is the first time that foreign pornographic videos have been protected by Taiwan’s Copyright Act. The IP Court has returned to the normative basis of the Copyright Act, discarding past decisions by the Supreme Court in which violation of public order and good morals had a negative factor on obtaining copyright protection, says Justin Chen, a partner at Chien Yeh Law Offices in Taipei.

It is noteworthy, though that the IP Court rarely releases press announcements for a single case, but did so in this instance, says Peter Dernbach, a partner at Winkler Partners in Taipei. Dernbach adds the IP Court is aware that its decision represents a new legal interpretation in Taiwan and is taken steps to make others, including other judges, aware of this decision.

Moreover, unlike the Patent Act and the Trademark Act, both of which expressly deny protection of subjects in violation of public order or morality, no such provision is expressed in the copyright act, implying it was not the legislators’ intent to outright exclude all works in violation of public order and good moral from copyright protection, Chen tells Asia IP. Therefore, the judgment, which affirms that pornographic works with originality shall be protected under the Copyright Act, shall certainly be recognized.

Division-chief judge Ter-Chao Lee said there is a gap between the Supreme Court’s interpretation and the current situation and that the IP court should consider copyright issues separately from whether it is an offense to the social decency.

“The purpose of the judgment is to clarify the elements required for obtaining copyright protection and to prevent abuse of the concept of public order and good moral,” says Chen.

Taiwan’s Supreme Court had pointed out that any work that is harmful to the social order or public interest is not under copyright protection, as it does not help promote the development of the society.

Over the years, the intention of the Supreme Court’s judgement has been followed by each lower court. Thus, in the past, pornography was never considered to be under the protection of the Copyright Act in Taiwan, says Chen.

“We believe that works that might be against social moral standards are copyrightable as long as they meet the originality requirements,” says Yu- Jia Yen, senior attorney at Formosa in Taipei. If a copyrightable work is found obscene, then its dissemination may be regulated or even prohibited according to the Criminal Code and other applicable laws in Taiwan. However, this should not change the fact that such work is copyrightable, she adds.

Society in Taiwan has changed with people being more open-minded with adult film matters. Yulan Kuo, a partner at Formosa Transnational in Taipei, says he has observed over the past few decades that people tend to be more open-minded when facing adult films issues in Taiwan. “This does not mean the general public would find it comfortable if these films were freely disseminated,” he says. “There are strong feelings that certain regulations are necessary to protect minors from accessing these materials.”

Social opinions about what type of content is acceptable change with time. Dernbach says it is difficult to draw too many conclusions about the social impact of one specific decision, but it suggests that there is an increasing acceptance of at least soft-core pornographic works.

This IP Court ruling would encourage adult entertainment producers to take more legal protection actions in Taiwan, despite affecting future copyright cases and adjusting the scope of copyright protection in Taiwan, says Weng.

However, whether pornographic videos are “copyrightable works” in spite of social moral standards still depends on the standards of “hard core” and “soft core.” It is important to remember that only three soft core videos were deemed protected works in this ruling. Hard core videos that contains violence, sexual abuse, bestiality and other obscene images without artistic, medical or educational value are not protectable.

Since almost all copyright cases in Taiwan are reviewed by the IP Court, it is possible that most judgments will follow the reasoning of this case and that adult films that are original will be protected by the Copyright Act, Yen says.

Chen says the judgment will have no binding power on other judges, so it remains to be seen how substantial the effect of the judgment will have on future practice.

On the civil copyright infringement claims, Dernbach expects to see an increase in such claims from the copyright holders of these works as there is now a decision from the IP Court that supports that these works are protected by copyright. On the criminal end, it still remains uncertain because the ruling has not been appealed to Supreme Court, Weng says.