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Cripps, Mizcedes --- "How Does Australian Copyright Law Respond To Obscenity In An Era Of Digital Technology?" [2022] CanLawRw 4; (2022) 19(1) Canberra Law Review 52

How Does Australian Copyright Law Respond To Obscenity In An Era Of Digital Technology?

Mizcedes Cripps*

Does ‘obscenity’ – a capacious concept – preclude copyright protection for graphic and other works, thereby excluding the economic and moral rights of authors and publishers in a way that might foster copyright infringement (conventionally characterised as piracy) alongside signalling the law’s distaste for particular expression. This article considers the response by Australian copyright law to obscene expression in the era of digital technology, salient because that technology provides opportunities for the creation of heterogenous still images, moving images, audio and text by individuals and by corporations alongside global distribution on a mobile to mobile or social media platform basis. The article discusses the fluid nature of obscenity and divergent positions about whether content that is subjectively offensive or illegal is excluded from copyright protection.

I Introduction

Does obscenity preclude protection under copyright law, an exclusion that might signal law’s disquiet regarding the obscene yet potentially offer a charter to entities engaging in large-scale infringement that would often be characterised as piracy? This article explores an under-researched topic. It considers the response of Australian copyright law to obscene content – i.e., images, text and other works that might be prohibited outright or restricted under for example the Commonwealth Classification (Publications, Films and Computer Games) Act 1995 (Cth) – in the digital environment.

There is a very substantial Australian and overseas literature on the history of censorship, the characterisation of obscenity and debate about morality as the basis of law.[1] Moreover there is an increasingly rich theoretical and polemical literature from a wide range of perspectives, including ‘sex positive’ feminists, gay writers and kink advocates who question a hegemony that seeks to delegitimise divergent practice and expression in network and other environments.[2] However there is very little literature on the copyright status of obscene content and the consequences of that status.

Since ancient times, a wide array of creative people have attained notoriety through sexually explicit, politically subversive, or blasphemous works. Some of the most famous directors, writers, artists and actors in history ‘are known for their sexually provoking works’.[3] Those works have been the focus of historic and contemporary disagreements about law’s response to eroticism (in some instances conflating what is erotic with what is pornographic, in other words requiring restriction or prohibition) and what some deem offensive content. One may think of, for example, Goya’s La Maja Desnuda which was confiscated by the Spanish Inquisition in 1815 because of its ‘provocative and obscene content’;[4] Oscar Wilde’s The Picture of Dorian Gray and Radcliffe Hall’s The Well of Loneliness;[5] Monsieur Dupont by Paul de Kock, seized by Australian customs officials in 1901 ‘in the interests of public morality’;[6] and more recently, the adult movie Deep Throat directed by Gerard Damiano in 1972,[7] photographs by Bill Henson[8] and Andres Serrano’s picture Piss Christ which continues to arouse ‘significant public controversy’.[9]

Digital communication technology, such as social media, facilitates the proliferation of ‘obscene, immoral, blasphemous, libellous’ and irreligious works;[10] with the Broadway musical Avenue Q famously suggesting that the ‘Internet is for Porn’.[11] Nowadays young people and their older peers engage in practices such as sexting and the production/dissemination of DIY adult content by consumers, facilitated through access to the ubiquitous mobile phone and 4G networks – what one reviewer of this article dubbed ‘an adult video studio in your pocket’. There is disagreement about the scale and demographics of the production, distribution and consumption of digital content – still/moving images and text – that Australian law would hold to be obscene. Statistics are contested and empirically uncertain.[12] However, one frequently repeated estimate is that the ‘online adult entertainment industry’ generates approximately $100 billion worldwide per year[13] (over ‘3,000 dollars’ being spent every second) and amounts to nearly 30% of all internet traffic.[14]

Perceptions of what could or should be restricted as obscene – harmful to viewers of varying sensibilities and resilience – are subjective. Most people for example now flock to see a Goya or Hockney nude, do not regard Bernini’s St Theresa as sado-masochistic pornography[15] and are unfussed about Radcliffe Hall’s same-sex affinity. They are also culturally contingent, with Saudi Arabia for example criminalising some content that Australian law considers unremarkable (and not criminalising images of executions that Australia would ban as ‘extreme violence’) and Australia revisiting its online content regulation regime ahead of an election in which the major parties are conscious of the dangers of being seen by religious or other stakeholders to be ‘soft on porn’.[16]

Despite the prevalence of obscene material online and outstanding work by scholars such as Robert Darnton on the archaeology of print censorship,[17] scholars have ‘underexplored’ the protection of this ubiquitous but ostensibly non-conventional subject matter under copyright law. That may be partly because this subject matter has ‘lurk[ed] at the fringes’ of the copyright system,[18] perceived as less illustrative of copyright conundrums such as the ‘Napster Wars’.[19] It may also reflect perceptions within the legal academy that copyright scholarship and obscenity are necessarily worlds apart.

Given that law concerning technology tends to march ‘in the rear and limping a little’, this article aims to assess if and how badly Australian copyright laws are currently “limping” in the regulation of obscenity in an era of digital technology.[20] Such an evaluation appears crucial considering that Internet Service Intermediaries (ISIs), such as Google, have started acting as ‘gatekeepers’[21] of the ‘information commons’,[22] a role that enables them to shape norms, culture and discourse within communities[23] on a basis that is both self-interested and that anticipates the calls for state intervention evident in documents such as the Australian Competition & Consumer Commission’s Digital Platforms report. Notably, this raises questions about the normative responsibility of ISIs in identifying and taking down obscene works, which will not be the focus of this article.

Firstly, this article provides a brief discussion of copyright law, including the criteria for subsistence, legislative history, and the philosophical justifications. The discussion is deepened by an examination of the definition of “obscenity” in relation to copyright. Secondly, this article compares United States (US) and European copyright law approaches to obscene works. In so doing, it considers the impact that differing philosophical justifications for copyright protection, and a constitutionally-enshrined right to freedom of expression – which Australia lacks[24] – has on censorship. Finally, this article critically examines the adequacy of Australian copyright law when applied to obscenity, particularly in an era of digital technology, in light of the prior discussion concerning the US and European approaches to copyright law.

Importantly, the article’s scope is limited to obscene works that are available on open digital networks – for example on blogs, web-based fan sites, digital platforms such as Twitter and YouTube and relationship services such as Grindr – rather than illegal works on the ‘dark web’. Access to the dark web generally requires an explicit invitation to access the content or join a community, and the use of specific software.[25]

II Background

The effect of digital communication technology on legal and policy frameworks has often been exaggerated. Notably, for some commentators in the 1980s and early 1990s, the rise of digital communication technology ‘presaged an end’ to intellectual property (IP) and indeed to the state.[26] Most famously, Barlow argued that copyright, being founded on the control of physical reproductions and enforcement by public/private actors within a state-based legal system, was simply extraneous online, where the technology was designed to undo control and what was transmitted was ‘liquid’; existing ‘either as pure thought or something very much like thought’.[27]

Today, Barlow’s cyber-libertarian opinions seem archaic, with Lessig highlighting that technology is flexible and can be used – or required by law – to regulate or prevent copying and to ‘reimpose borders’[28] that the internet appeared to ‘destroy’.[29] Furthermore, as Zittrain has contended, consumers may ‘actively seek out’ more ‘controlled’ technology if it is more dependable.[30]

Aspects of Barlow’s reasoning hold, in that digital communication technology has had ‘far-reaching’ consequences for IP law, and specifically copyright.[31] Though the subject matters of intellectual property rights (IPRs) are intangible,[32] IP rules are ‘grounded in real-world physics’.[33] For example, patent law grants rights in inventions, understood as an ‘artificially created state[s] of affairs’,[34] which are ascertained through their ‘effect’ in the real world.[35]

Copyright does not protect an idea per se. Instead it attaches to an author’s expression fixed in a tangible medium, such as a painting, photograph, video or sculpture.[36] The protection is concerned with sufficient originality, rather than artistic merit. As noted above, at various times and in different jurisdictions that expression might have been deemed obscene and thus for example properly confiscated and destroyed by agents of the state alongside punishment of the author, publisher, consumers and intermediaries.

The following section provides an overview of copyright law, including the philosophical justifications, legislative history, and the criterion for subsistence of copyright.

A Copyright Law – A Brief Overview

Copyright law regulates the creation, dissemination and use of a wide range of ‘works’,[37] ranging from books,[38] computer programs,[39] catalogues,[40] musical works[41] and films[42] through to television broadcasts[43] and sound recordings.[44] The Berne Convention for the Protection of Literary and Artistic Works (‘Berne Convention’), alongside the global TRIPS agreement under the auspices of the World Trade Organization, provides underlying framework for copyright, and sets out the minimum protections to be granted.[45]

Under the Berne Convention, copyright subsists in ‘original works’ and ‘subject-matter other than works’ automatically, arising upon creation;[46] it is not ‘conditioned upon fulfillment of formalities’,[47] such as registration or publication.[48] Unlike industrial IP, such as trade marks[49] and patents,[50] there are no requirement concerning the decency or morality of copyrightable works.[51] However, the Berne Convention provides members with ‘considerable flexibility to define which situations are covered, depending upon their own conception of the protection of public values’.[52] Countries are allowed to impose additional requirements, such as public interest considerations,[53] as copyright is a creature of domestic statute, and is accordingly territorial.[54]

Generally, the requirements for copyright subsistence are: that a work is ‘reduced to writing or some other material form’,[55] as opposed to ideas,[56] facts or ‘information;’[57] that the form is a recognised subject matter;[58] and that there has been an expenditure of intellectual effort,[59] ‘skill’[60] or ‘judgement’.[61] Most common law countries only confer copyright protection to original authored works. Originality became a criterion for subsistence in the Copyright Act 1911 (UK) and the Copyright Act 1912 (Cth), the precursors of Australia’s much amended Copyright Act 1968 (Cth).[62]

Under British copyright law, a ‘work must not be copied from another work ... it should originate from the author’.[63] Similarly, in Australia, the threshold of originality is low.[64] The work does not need to be inventive,[65] ‘novel’,[66] of ‘literary merit’[67] or have any artistic value;[68] however, it ‘cannot be essentially dictated by the nature of the information.’[69] The work, or subject matter other than a work, must also be sufficiently connected to Australia.[70] Moreover the requirements for copyright protection vary according to the type of ‘subject matter’[71] and also differ depending on whether the work is ‘published’ or unpublished.[72]

Under US copyright law, there must be a ‘modicum of creativity’,[73] as ‘originality’ is a constitutional requirement.[74] In contrast, many European civil law countries do not explicitly utilise the term “original” within their legislation, opting for a range of phrases, which include ‘personal intellectual creations’ (Germany); and ‘works of the mind’ (France).[75]

Although copyright statutes generally reflect international treaties and agreements, such as the Berne Convention, there are a number of differences between common law and civil law countries. These differences are often due to varying philosophical approaches to the matter. Although the arguments used to justify copyright protection have taken many forms, they can be divided into two general types of philosophical approaches.

The first, which is most commonly used in common law countries, such as Australia,[76] comes under the general label of utilitarian-based arguments, which focus on promoting the creation, production, and dissemination of works.[77] Importantly, utilitarian-based arguments for copyright protection can be traced back to the enactment of the first English copyright legislation: the Statute of Anne (8 Anne, c 19) of 1709;[78] which is ‘the significant forebear of United Kingdom, and, therefore, Australian copyright legislation’.[79]

The second set of arguments, which are often categorised as natural rights arguments, see the ‘foundation of the rights of an author in the very nature of things.’[80] This set of arguments has ‘never been particularly fashionable’ in common law jurisdictions[81] and is at odds with the hegemony evident in the TRIPS Agreement and emerging bilateral/multilateral Free Trade Agreements such as the contentious TransPacific Partnership Agreement.

In most jurisdictions, copyright confers exclusive positive intellectual ‘property’[82] rights (IPR) for varying periods[83] to “authors”[84] of ‘original’ creative works,[85] and “makers” of other ‘subject matter’.[86] These IPR may be ‘described as proprietary in character’,[87] having been conceptualised as a ‘bundle of rights’, obligations, and responsibilities,[88] including: the right to exclude others; the rights of possession, use, and enjoyment; and the right of transfer.[89] Authors can for example be commissioned by a publisher, licence to a distributor or sell their proprietorial rights to a commercial entity, illustrated over the past year by private equity groups paying hundreds of millions of dollars to buying the catalogues of music figures such as David Bowie.

Copyright also provides for non-proprietary IPR, including performers rights and moral rights,[90] which are ‘well established in European law.’[91] In Australia, only authors who are ‘individual human beings’[92] can be beneficiaries of moral rights,[93] being: the ‘right to attribution of authorship’,[94] the ‘right of integrity of authorship’,[95] and the ‘right not to have authorship of the work falsely attributed.’.[96] Notably, Australian moral rights have been the subject of ongoing criticism; with Weatherall arguing they are of little value for most authors, having ‘been hedged about with so many limitations ... that they became ‘pretend-y rights”.’[97]

Given that a depiction of sexual activity and what is sometimes dubbed as sexualised image may be sufficiently original and fixed to meet the above requirements for protection both economic rights owners and holders of moral rights have an interest in whether deeming a work to be obscene precludes copyright protection.

The following section provides an explanation of “obscenity” in relation to copyright, and highlights a lingering uncertainty.

B Obscenity: The Lingering Uncertainty

Historically, the term obscenity has not been defined. [98] In the early modern period the piracy of text and graphic content (printed and retailed surreptitiously, primarily to elite markets rather than the lower classes) appears to have been common, with rights owners not going to court to enforce their rights regarding infringement. That non-assertion of rights was unsurprising, given that the creation, distribution and possession by consumers of particular content was addressed under common law as ‘offensive’ expression (a criminal offence that was not restricted to what we now conceptualise as pornography) or ‘disturbance of the peace’ and might have also been addressed under statute law such the 1534 Treasons Act.[99] Notably it has been suggested that conviction of Pope’s adversary Edmund Curll in 1727 for publishing Venus in the Cloister introduced a specific notion of obscenity as an obscene libel.[100]

Lord Eldon in Walcot v. Walker ruled that where a work was ‘of such a nature’ that it was immoral, obscene, blasphemous, libellous or seditious (and as such contrary to law) the author could maintain ‘no action at law’ regarding contract, copyright or other matters.[101] In Southey v. Sherwood Lord Eldon similarly denied Robert Southey an injunction against the pirate of his work, on the basis that the work was immoral, ‘calculated to do injury to the public’ and thus not attracting copyright.[102]

A common law test of obscenity was developed in R v Hicklin,[103] alongside increasing state capacity. In that matter, Cockburn CJ stated that the test of obscenity is

whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.[104]

Despite being widely adopted,[105] the Hicklin’s test was not immune to criticism, with Bok J arguing that

strictly applied, this rule renders any book unsafe, since a moron could pervert to some sexual fantasy to which his mind is open the listings in a seed catalogue. Not even the Bible would be exempt.[106]

Importantly, the term obscenity was not restricted to sexually explicit works.[107] Instead, it encompassed all works which went against ‘community standards’[108] and ‘public morality’.[109] As a result obscene works have included manifestations of hate speech, blasphemy,[110] pornography,[111] abhorrent violent material,[112] sedition of law enforcement, lese-majesty and depictions of drug misuse.[113]

Presently, a definition of obscenity remains ‘elusive’[114] as it in fact ‘may be indefinable’.[115] Adler and Boyce suggest that obscenity is best treated as a placeholder ‘for contested meaning’, and hence, should always be regarded ‘as if there were quotation marks around’ it.[116] Although there have been numerous attempts to define obscenity,[117] a subjective test subsists:

I shall not today attempt further to define the kinds of material I understand to be embraced ... and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.[118]

Notably, in Australia, the absence of a wholly satisfactory judicial and or regulatory definition of obscenity has resulted in ‘a particularly disjointed and fractured [enforcement] arrangement’.[119] In part, this is because there is a complex network of ‘parallel and sometimes overlapping’[120] Commonwealth, state, and territory classification systems, which are intended to prevent the publication and dissemination of obscene works.[121] Historically that meant the Commonwealth (consistent with the Customs and Telecommunication powers in the Constitution) addressed distribution on a non-exclusive basis, with different states/territories having rules that their peers regarded as more/less liberal and idiosyncratic. Moreover, as part of that disjointed regime the ‘tribunal of fact’ is left to decide whether a work is obscene;[122] often leading to ‘inconsistent’ results.[123]

In deciding whether a work was obscene, courts have considered the intended audience,[124] the availability,[125] and the ‘literary or artistic merit’ of the work.[126] Judicially, it is the potential effect of the work ‘on its likely audience that matters’; the work in question should not be ‘judged against the society as a whole ...unless they are part of the likely readers’.[127]

Courts have also distinguished between works ‘kept in proper custody and under responsible control’, compared to works that have been widely disseminated, determining that such works ‘which, however unsuitable for indiscriminate distribution to the curious adolescent, are perfectly appropriate for study by the serious scholar’.[128] Importantly, Finkelstein J argues that ‘a judge is not well suited to the task’ of deciding whether a work is obscene and, as often as not, will reach the wrong result ... [h]ere, in Australia there have been many ill-considered decisions’.[129]

Do the US and European copyright law approaches to obscenity offer insights relevant for copyright, noting that recognition as a copyright work does not mean an obscene expression is necessarily protected from action under censorship or other law that might result in punishment of the copyright holder?

III Legal Responses Applicable to Obscenity

In most countries, copyright law does not require copyrightable works not to be indecent or immoral, though some jurisdictions may restrict the enforceability of copyright in specific circumstances.[130] As previously noted, international copyright treaties[131] do not specifically exclude indecent or immoral works from protection, either.[132]

Consequently, in many jurisdictions, copyright protection is considered to be ‘content neutral’; obscene works are treated like any other creative works.[133] In part, this is because the right to freedom of expression seems to be in conflict with content-based restrictions on copyrightability.[134] That said, the following paragraphs seek to address whether a sufficiently original obscene works could be denied copyright protection on public policy grounds. In doing so, this article focuses on comparing the United Kingdom (UK), US, French, and German copyright law approaches.[135]

A Obscenity: The United States and European Approaches Compared

As noted above, copyright law is a ‘common law’ concept, which originated in the UK.[136] Under contemporary UK copyright law (ie statute), obscene works are not formally precluded from copyright protection,[137] although the case law concerning the status of pornography remains unclear.[138]

In Glyn v Weston Feature Film Company, for example, the court incidentally acknowledged that obscene works could be protected, despite eventually refusing to grant an injunction for copyright infringement in the plaintiff’s dramatic work because the ‘episode described in the plaintiff’s novel, and which she alleges has been pirated by the defendants, is in my opinion grossly immoral in its essence, in its treatment, and in its tendency’.[139] Recently, in Hyde Park v Yelland, the court recognised that ‘in principle public policy can prevent copyright enforcement completely’, acknowledging that UK courts still have the power to ‘override’ copyright under grounds of public policy.[140]

Glyn was cited and contrasted in the Full Federal Court’s 2006 judgment in Venus Adult Shops v Fraserside, with Finkelstein J commenting[141]

The true basis for denying protection to obscene works is not clear. One possibility is that there can be no copyright in an obscene work. Another is that there is copyright but the court will not lend its assistance to the owner because of the nature of the work, that is the court will not interfere on public policy grounds. This latter approach is well and good in a case where the court is being asked to grant discretionary relief, for example, an injunction or an account of profits. It is an oft stated principle that when a plaintiff seeks equitable relief he must have clean hands. ...

In Glyn v Weston Feature Film Company [1916] 1 Ch 261 Younger J refused protection to a novel which advocated free love and justified adultery. It is not clear whether he founded his decision in the absence of copyright or whether he simply refused to allow copyright to be enforced on the basis that the novel was "of a tendency so grossly immoral". There are passages in his judgment which support each position.

Finally, so far as the English cases are concerned, in Hyde Park Residence Ltd v Yelland (CA) [2001] Ch 143, Aldous LJ suggested that the rule could be justified on the basis that courts have an inherent jurisdiction to refuse to allow their processes to be used in certain circumstances. He noted (at 160), that "the courts will not give effect to contracts which are, for example, illegal, immoral or prejudicial to family life because they offend against the policy of the law". He then referred to s 171(3) of the Copyright Act 1988 (UK) which provides that: "Nothing in this Part affects any rule of law preventing or restricting the enforcement of copyright, on grounds of public policy or otherwise." He said this made it clear that the jurisdiction to decline hearing a case could be exercised in a copyright case. The Australian Copyright Act, however, has no equivalent provision.

Where does this leave us? For my own part, I do not accept that there is no copyright in a pornographic work. There is no such exception in the Copyright Act. In my opinion the court does not have power to create the exception. I am prepared to assume, in conformity with the early cases, that, in some circumstances, public policy may require a court to deny to a pornographer the relief that Parliament has provided to all copyright owners, but then only when the relief is discretionary. Even so, prima facie at least, the owner is entitled to discretionary relief, for example, an injunction to restrain the unauthorised publication of his work. The pornographic nature of the work will be of relevance in a claim for damages only when it is illegal to sell the work. If an author cannot sell his work he cannot suffer damage.

I take this approach because, to my mind, there are insurmountable difficulties standing in the way of denying copyright or copyright protection to works that may be regarded as obscene or pornographic. For one thing there is no satisfactory definition of what is obscene or pornographic. The inquiry will inevitably involve both moral and political considerations. The inquiry will be complicated because the question will often depend upon the audience which the publication is likely to reach. If Parliament requires such an issue to be considered by a judge then, of course, the judge must consider it. But, in truth, a judge is not well suited to the task and, as often as not, will reach the wrong result.

A similar approach has been adopted in the US, in that obscene works are not formally precluded from copyright protection.[142] There are three other similarities concerning copyright in obscene works.

Firstly, both the UK Parliament in 1709,[143] and the authors of the US Constitution[144] recognised ‘the desirability of enhancing the public welfare by granting to authors an exclusive right, though limited in duration, to enjoy commercial exploitation of their published creations.’[145] Secondly, both in the UK and the US this right has been conferred by statute.[146] Thirdly, both countries have historically denied the benefits of copyright protection to the authors of obscene,[147] merely misleading,[148] blasphemous, libellous and irreligious[149] or immoral works,[150] which neither the common law nor equity would protect, regardless of the provisions of those statutes.[151] Importantly, the contemporary US copyright law approach does differ from the UK.

Under US copyright law, obscene works may be registered with the Copyright Office; registration is a precondition ‘for enforcing one’s copyright interests.’[152] Notably, there are two seminal cases that support this view. The first is Mitchell Bros, where the copyright owners of a porn movie sued two groups of defendants for obtaining and exhibiting copies of the plaintiff’s adult movie, Behind the Green Door.[153] The second case is Jartech, Inc v Clancy, where the defendant made ‘abbreviated copies’ of the plaintiff’s obscene movies, and reproduced images from them within a book.[154] Both cases rejected the argument that obscenity could be a defence to copyright infringement.

The Fifth Circuit in Mitchell Bros found that:

There is not even a hint in the language [of the Copyright Act] that the obscene nature of a work renders it any less a copyrightable “writing”. There is no other statutory language from which it can be inferred that Congress intended that obscene material could not be copyrighted. Moreover, ... the history of content-based restrictions... suggests that the absence of such limitations in the Copyright Act of 1909 is the result of an intentional policy choice and not simply an omission.[155]

In the US, unlike the UK, the prevailing view is that ‘even illegality is not a bar to copyrightability;’ this view arises from a greater focus on balancing the need to protect society from obscenity against potential encroachment on constitutional rights.[156] In specific, content-based restrictions are generally held to be ‘contrary to the First Amendment’,[157] and consequently, are limited to a small set of historically dependent categories, including fraud.[158] Notably, civil law countries, such as France and Germany, are even more dissimilar to the UK.

The French and UK copyright law approaches are ‘well known’ opposites.[159] The product of the French Revolution, French copyright law arose from a quite different tradition, whereupon: ‘the most sacred and legitimate, the most unchallengeable and personal of all the properties is the oeuvre, the fruits of a writer's thought’.[160] The outcome was a legal framework in which:

the author, a real person, has intellectual rights [in the work] and in consequence is sovereign in deciding its expression, disposition and distribution. Authors further have “moral rights”, to protect their good name, their reputation and their works; the fact that these things are integral to the act of creation justifies these rights being “perpetual” and “inalienable”.[161]

Therefore, in the French tradition, author’s rights are personal rights, which is treated as a ‘natural right growing out of natural law’.[162] By contrast, the common law tradition can be summarised by the opening words of the UK copyright act: ‘Copyright is a property right’.[163] In a recent case in France, the Tribunal de Grande Instance de Lyon (Tribunal) affirmed that obscene works can be characterised by the personality of the director and of the author, and consequently, would be individualised enough to benefit from copyright protection.[164]

Although the case was decided on trade mark infringement and unfair competition grounds, the Tribunal had the opportunity to clarify the conditions under which a pornographic movie would attract copyright protection.[165] Notably, the defendant argued that the movies – being of a pornographic nature – were precluded from copyright protection.[166] The Tribunal rejected the defendant’s argument, highlighting that pornographic works are ‘based largely on scenes of fornication between individuals ... in various places ... However, the choices that underlie a movie, the conception and the design of such work can be original and, as such, be protected under copyright.’[167]

Despite originating from the French tradition, Germany has adopted a similar approach to the UK, in that pornographic works that depict ‘sexual intercourse in a primitive way’ are not entitled to copyright protection, as they do not appear to be a ‘personal intellectual creation’.[168]

The following section critically examines the Australian copyright law approach to obscenity.

IV The Australian Approach

Assuming that the criterion for subsistence of copyright are satisfied,[169] Australia has forcefully ‘repudiated’ content-based restrictions for copyrightability.[170] For industrial IP, such as trade marks[171] and patents,[172] public interest and morality must be considered when deciding to grant the relevant monopoly. However, under the Copyright Act there are no provisions which impose a public interest or morality test for copyrightability.

In Venus Adult Shops v Fraserside Holdings Ltd, the court highlighted that there is no ‘public interest defence’ to copyright infringement in Australia.[173] In that case, the court held that ‘there is no legislative or other warrant for the introduction of such a concept into the law of this country.’[174] Moreover, the Fraserside court unequivocally repudiated content-based restrictions on copyright infringement by stating that, ‘there is therefore no statutory basis under existing Australian copyright law for a finding that copyright does not subsist because the content of the relevant work or subject matter offends against community values or standards.’[175]

The repudiation of the UK copyright law approach was unequivocal: ‘there is no basis for a conclusion that the scope of copyright protection is qualified by a reference to community standards and the content of the copyright work or other subject matter’. [176] As noted above, the concurrence by Finkelstein J was just as forceful, with a full rejection of the notion that copyright cannot attach itself to a pornographic work, and further dismissal of the idea that courts have the power to create such policy-based categories.

Australian courts have instead adopted an approach similar to the US – where courts have consistently held that ‘illegality is not a bar to copyrightability’[177] – in which limited remedies are available to copyright owners, to ‘leave the parties as they find them’.[178] For example an injunction might be granted for copyright infringement in Australia. However, the damages available to the plaintiff would be reduced if ‘there is no market value’ for the obscene works.[179]

Copyright law approaches, such as that of Australia, have been criticised for not precluding obscenity from copyright protection. Importantly these critics advance three main arguments.

Firstly, scholars, such as Bartow, argue that copyright owners of obscene works ‘frequently’ engage in copyright trolling.[180] As previously noted, utilitarian-based copyright law is designed to ‘create incentives for creative effort’.[181] Conversely, copyright law also creates an incentive for copyright trolling: ‘a latent financial incentive for entrepreneurs to monetise a protected work that is being allegedly infringed by engaging in large-scale litigation, even when the harm experienced by the rights holder is nominal.’[182] ‘Trolling’ is not isolated to obscene works or copyright law; rather, it is a widespread IP issue.[183] Copyright trolls – while similar to their other IP counterparts, patent trolls – are the product of two unique features of copyright law.

The first feature is the incentive created by statutory damages, the second is the joinder of claims and parties.[184] Many of the cases involving copyright trolls feature an additional ingredient – pornography. Sag and Haskell argue that the extravagant threat of statutory damages plus exorbitant legal costs, combined with the embarrassment of being accused of downloading obscene material, enable copyright trolls to ‘leverage settlements from the guilty and the innocent alike.’[185] The issue of copyright trolling highlights that the Australian copyright approach is prone to misuse, and is in need of change. However, courts have the capacity ‘to stop this occurrence’.[186] For example, courts can sever mass copyright infringement lawsuits, therefore assuaging some procedural obstacles for defendants and ‘ensuring that plaintiffs are not unfairly taking advantage of the judicial process’ for profit.[187]

Secondly, Dworkin argued that courts should ‘intervene to prevent the author or copyright holder from enforcing or exercising those rights fully’ on grounds of public policy;[188] namely, to protect the ‘susceptible’ public from ‘dangerous and unacceptable works’.[189] Dworkin’s argument reflects the rationale for copyright, in that IPR will be conferred on every creative work, or subject matter other than a work, from the time of its creation. From practical perspective, if an obscene bereft of copyright protection, the public interest is more likely to be harmed than protected, as the obscene work could be disseminated without any risk of copyright infringement and other parties could replicate the work without restriction.[190] This would ultimately undermine the reason why copyright protection was denied in the first instance, which was to protect the public from these “unacceptable and dangerous works”.[191]

Thirdly, there is a prevailing view that the withholding of copyright protection from obscene works would ‘reduce the incentives for its creation and distribution’.[192] According to the economic theory behind copyright protection, authors of works who do not receive copyright protection will be de-incentivised, and thus, underproduce creative works.[193] Notably, this argument fails to recognise the new economic reality of digital technology, and ‘altruistic’ motivations for content creation and sharing.[194]

In an era of digital technology, widespread content dissemination provides its own economic incentives, as the most successful creators are able to incentivise ‘the creation of entire ecosystems.’[195]

Online content creators are able to ‘generate profit’ through ‘sharing’,[196] as the distribution of content, whether legal or illegal, can ‘potentially generate awareness and attract users.’[197] Moreover, online content creators are able establish a ‘personal brand’ through pay-per-view performances on Only Fans, or through crowdfunding websites, such as Patreon.[198] Here, the control based ‘bundle of rights’ granted by copyright protection are rendered irrelevant.[199] Whereas, moral rights and personality rights, which have been treated with ‘paucity’ in Australia, are relevant.[200]

For some creators, the ability to disseminate what others construe as obscene works is an important aspect of ‘creating social transformation’ and converting new users to their social or political agenda.[201] For example, empirical research into user generated pornographic works suggests one major motivation behind user generated works is to create and engage in ‘close-knit communities’.[202] Unfortunately, Australian copyright law – as distinct from for example the 2022 e-safety regime – has largely failed to respond to obscenity in an era of digital technology, and instead, continues to pursue a system of monolithic rights protection, referred to as a ‘one-size-fits-all’ approach.[203]

The ‘one-size-fits-all’ approach made sense when the number of works protected was limited to a one category, being printed text.[204] Today, however, ‘creative production continues to be protected under uniform and solid entitlements, even though the scope of protectable subject matter has been extended to many different categories of work.’[205] The current approach assumes that all authors, owners, intermediaries and users share similar characteristics and motivations, ultimately creating costs of both under and over protection of obscene works.[206]

Conferring legal rights to copyright owners ‘involves a cost to society’, including ‘the increased cost of “inputs” to the creative process as well as the opportunity cost of the investment in the creation of new works.’[207] Moreover, the absence of appropriate copyright protection may not affect the amount being invested in the production of obscene works, ‘but rather the kind of content produced.’[208] Intriguingly, this effect is not necessarily a negative one; with Oliar and Sprigman arguing that ‘the shift in the nature of content’ being produced cannot be easily assessed in terms of what type of investment is more socially desirable.[209]

V Conclusion

Firstly, this article provided a brief overview of copyright law, which proceeded by a comprehensive explanation of the definition of “obscenity” in relation to copyright. Secondly, this article compared the US and European copyright law approaches, including the UK, France, and Germany, to obscene works. Finally, this article critically examined the adequacy of Australian copyright law when applied to obscenity, particularly in an era of digital technology, in light of the prior discussion concerning the US and European approaches to copyright law. Australian copyright law is marching ‘in the rear and limping a little’, in its response to obscenity in an era of digital technology;[210] with the current ‘one-size-fits-all’ approach creating costs of both under and over protection of obscene works.[211] Presently, Australian copyright law has not found ‘the incentive that is “just enough” to spur the optimal degree of creativity.’[212]

* BAIS, LLB (University of Canberra).

1 For examples, see Edward de Grazia, Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius (Knopf, 1992); Nicole Moore, The Censor's Library, Uncovering the Lost History of Australia's Banned Books (University of Queensland Press, 2012); and H L A Hart, Law, Liberty and Morality (Stanford University Press, 1963).

[2] Points of entry to the literature include Elisa Glick, ‘Sex positive: Feminism, queer theory, and the politics of transgression’ (2000) 64(1) Feminist Review 19; Jessica Joy Cameron, Reconsidering radical feminism: Affect and the politics of heterosexuality (UBC Press, 2018); Laura Kipnis, Bound and gagged (Duke University Press, 1998); Margo Kaplan, ‘Sex-positive law’ (2014) 89(1) New York University Law Review 89; and Theodore Bennett, ‘“Unorthodox Rules”: The Instructive Potential of BDSM Consent for Law’ (2018) 4(1) Journal of Positive Sexuality 4.

[3] Enrico Bonadio and Nicola Lucchi (eds), Non-Conventional Copyright: Do New and Atypical Works Deserve Protection? (Edward Elgar, 2018).

[4] Janis Tomlinson, ‘Burn It, Hide It, Flaunt It: Goya’s Majas and the Censorial Mind’ (1991) 50(4) Art Journal 59, 64.

[5] See Simon Stern, ‘Wilde’s Obscenity Effect: Influence and Immorality in the Picture of Dorian Gray’ (2017) 68(286) The Review of English Studies 756; and Leigh Gilmore, ‘Obscenity, Modernity, Identity: Legalizing “The Well of Loneliness” and “Nightwood”’ (1994) 4(4) Journal of the History of Sexuality 603.

[6] Patrick Mullins, The Trials of Portnoy: How Penguin Brought Down Australia’s Censorship System (Scribe, 2020) 6. See also Deana Heath, Purifying Empire: Obscenity and the Politics of Moral Regulation in Britain, India and Australia (Cambridge University Press, 2010) 118.

[7] See Vincent Barnett, ‘“The most profitable film ever made”: Deep Throat (1972), organized crime, and the $600 million gross’ (2018) 5(2) Porn Studies 131; and Jon Lewis, Hollywood v. Hard Core: How the Struggle over Censorship saved the Modern Film Industry (New York University Press, 2002).

[8] David Marr, The Henson Case (Text Publishing, 2008).

[9] See Bede Harris, ‘Pell v Council of Trustees of the National Gallery of Victoria: Should Blasphemy Be a Crime – The “Piss Christ” Case and Freedom of Expression’ [1998] MelbULawRw 9; (1998) 22(1) Melbourne University Law Review 217, 217; Angelique Chrisafis, ‘Attack on “blasphemous” art work fires debate on role of religion in France’, ABC News (online, 19 April 2011) <>; and Daniel Ray, ‘How 20th-Century Artists Rescued the Crucifixion’, The Spectator (online, 27 March 2021) <>.

[10] Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd [2006] FCAFC 188, [81] (French and Kiefel JJ) (‘Venus Adults Shops Pty Ltd v Fraserside Holdings Ltd’). See also Kate Darling, ‘IP Without IP? A Study of the Online Adult Entertainment Industry’ (2014) 17 Stanford Technology Law Review 709.

[11] Tim Harford, ‘Does Pornography still drive the internet?’, BBC News (online, 5 June 2019) <>.

[12] Mark Ward, ‘Web porn: Just how much porn is there?’, BBC News (online, 1 July 2013) <>.

[13] Piet Bakker and Sara Taalas, ‘The Irresistible Rise of Porn: The Untold Story of a Global Industry’ (2007) 1(1) Observatorio 99. See also Chris Morris, 'Things are looking up in America’s Porn Industry’, NBC News (online, 21 January 2015) <> .

[14] Bonadio and Lucchi (n 3) 420.

[15] Shân Short, ‘Come Again? Bernini's St Teresa as a Site/Sight for the Writing of Male Desire’ (1989) 8(1) Australian Journal of Art 78; and Donald Posner, ‘Caravaggio's homo-erotic early works’ (1971) 34(3) Art Quarterly 302.

[16] Bruce Baer Arnold, ‘Safe, but for whom? Commonwealth e-safety changes’ (2021) 166 Precedent 39.

[17] Robert Darnton, The Forbidden Best-Sellers of Pre-Revolutionary France (Norton, 1995); and James A Steintrager, ‘What Happened to The Porn in Pornography? Rétif, Regulating Prostitution, and The History of Dirty Books’ (2006) 60(3) Symposium: A Quarterly Journal in Modern Literatures 189.

[18] Peter Yu, ‘Foreword’ in Enrico Bonadio and Nicola Lucchi (eds), Non-Conventional Copyright: Do New and Atypical Works Deserve Protection? (Edward Elgar, 2018) xi, xi. See also Steven Brown, ‘Porn piracy: an overlooked phenomenon in need of academic investigation’ (2014) 1(3) Porn Studies 326.

[19] Suzor Nicolas, ‘Free-Riding, Cooperation, and Peaceful Revolutions in Copyright’ (2014) 28 Harvard Journal of Law & Technology 137; Lee Marshall, ‘Metallica and Morality: The Rhetorical Battleground of the Napster Wars’ (2002) 1(1) Entertainment Law 1; Darren Palmer and Ian J Warren, ‘Global policing and the case of Kim Dotcom’ (2013) 2(3) International Journal for Crime, Justice and Social Democracy 105.

[20] Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, 395 (Windeyer J) (‘Mount Isa Mines Ltd v Pusey’). See also Michael Kirby, ‘The Fundamental Problem of Regulating Technology’ (Speech, Conference on the Ethical Governance of Information & Communications Technology and the Role of Professional Bodies, 1 May 2008).

[21] See Laura Rengifo, ‘Internet Intermediaries Liability: Participative Networking Platforms and Harmful Content’ (Research Paper, University of Wellington, 2016) 4 <>; and Nicolas Suzor, Lawless: The Secret Rules That Govern Our Digital Lives (Cambridge University Press, 2019) 90. Cf Nicolas Suzor, Bryony Seignior and Jennifer Singleton, ‘Non-consensual Porn and the Responsibilities of Online Intermediaries’ [2017] MelbULawRw 16; (2017) 40(3) Melbourne University Law Review 1057, 1066.

[22] David Bollier, ‘Why We Must Talk about the Information Commons’ (2001) 96(2) Law Library Journal 267, 276. See also Lawrence Lessig, ‘The Creative Commons’ (2001) 65(1) Montana Law Review 1.

[23] See Marcelo Thompson, ‘Beyond Gatekeeping: The Normative Responsibility of Internet Intermediaries’ (2016) 18(4) Vanderbilt Journal of Entertainment & Technology Law 783; and Noah Tsika, ‘Blue transfusions: internet porn and the pirating of queer cinema’s sex scenes’ (2017) 4(2) Porn Studies 225.

[24] See Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1; Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106; and Unions NSW v New South Wales (2013) 252 CLR 530.

[25] Robert Gehl, ‘Power/freedom on the dark web: A digital ethnography of the Dark Web Social Network’ (2016) 18(7) New Media and Society 1219; Gabriel Weimann, ‘Going Dark: Terrorism on the Dark Web’ (2016) 39(3) Studies in Conflict & Terrorism 195; and Jani McCutcheon and Jordan Leahy, ‘Illegal Copyright Works and the Remedial Discretion of the Court’ (2019) 9(3) Queen Mary Journal of Intellectual Property 326, 236.

[26] Kimberlee Weatherall, ‘IP in a Changing Information Environment’ in Kathy Bowrey, Michael Handler and Dianne Nicol (eds), Emerging Challenges in Intellectual Property (Oxford University Press, 2011) 1, 3 (‘IP’).

[27] John Barlow, ‘The Economy of Ideas’, Wired (online, 3 January 1994) <>. See also David Johnson and David Post, ‘Law and Borders: The Rise of Law in Cyberspace’ (1996) 48(4) Stanford Law Review 1367; and Siva Vaidhyanathan, Copyright and Copywrong: The Rise of Intellectual Property and How it Threatens Creativity (New York University Press, 2001).

[28] Lawrence Lessig, Code and Other Laws of Cyberspace, Version 2.0 (Basic Books, 2nd ed, 2006) 178, 199.

[29] Jack Goldsmith and Tim Wu, Who Control the Internet? Illusions of a Borderless World (Oxford University Press, 2006) 52.

[30] Jonathan Zittrain, The Future of The Internet and How to Stop It (Yale University Press, 2008) 106, 163.

[31] Mary Neilsen, ‘Copyright in the Digital World’ (Brief, Parliamentary Library, Parliament of Australia, 2013) <>.

[32] See In re Dickens; Dickens v Hawksley [1935] Ch 267.

[33] Weatherall, IP (n 26) 3.

[34] Grant v Commissioner of Patents [2006] FCAFC 120, [6].

[35] International Business Machines Corporation v Commissioner of Patents [1991] FCA 625; (1991) 33 FCR 218, 224 (Burchett J). See also Welcome Real-Time SA v Catuity Inc [2001] FCA 445.

[36] See Merchandising Corporation of America v Harpond [1983] FSR 32; and Greenfield Products Pty Ltd v Rover-Scott Bonnar (1990) 17 IPR 417.

[37] See Brad Sherman, ‘What Is a Copyright Work?’ (2011) 12(1) Theoretical Inquiries in Law 99. See also Xiyin Tang, ‘Copyright and the expanded field: on land art and other new mediums’ in Enrico Bonadio and Nicola Lucchi (eds), Non-Conventional Copyright: Do New and Atypical Works Deserve Protection? (Edward Elgar, 2018) 23; and Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd (2002) 55 IPR 1, 42 (Lindgren J) (‘Desktop Marketing Case’).

[38] See University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 (‘University of London Press Ltd’).

[39] See JR Consulting & Drafting Pty Ltd v Cummings [2016] FCAFC 20. Cf Apple Computer Inc v Computer Edge Pty Ltd (1983) ATPR 40.

[40] See A-One Accessory Imports Pty Ltd v Off Road Imports Pty Ltd (1996) 34 IPR 306.

[41] See Sawkins v Hyperion Records Ltd [2005] EWCA Civ 565; (2005) 64 IPR 627.

[42] See Galaxy Electronics Pty Ltd v Sega Enterprises Ltd (1997) 75 FCR 8.

[43] See Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273.

[44] See CBS Records Australia Ltd v Telmak Teleproducts (Aust) Pty Ltd (198) 17 FCB 48.

[45] Berne Convention for the Protection of Literary and Artistic Works, signed 9 September 1886, 1161 UNTS 5 (entered into force 5 December 1887) (‘Berne Convention’).

[46] Ibid arts 2-3, 5. See also Copyright Act 1968 (Cth) ss 22, 32, pt IV (‘Copyright Act’).

[47] Dev Gangjee, ‘Copyright formalities: A return to registration?’ in Rebecca Giblin and Kimberlee Weatherall (eds), What if we could reimagine copyright? (ANU Press, 2017) 213, 213.

[48] Cf Trade Marks Act 1995 (Cth) (‘TMA’); Patents Act 1990 (Cth) (‘PA’); Designs Act 2003 (Cth).

[49] TMA (n 48) s 42. See Cosmetic, Toiletry and Fragrance Association Foundation v Fanni Barns Pty Ltd (2003) 57 IPR 594.

[50] See Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1C (Agreement on Trade-Related Aspects of Intellectual Property Rights) art 27(2)-(3) (‘TRIPS’); and Australian-US Trade Agreement, signed 18 May 2004, [2005] ATS 1 (entered into force 1 April 2005) (‘AUSTFA’). See also Plant Genetic Systems T356/93 (1995) OJEPO 545.

[51] See Vincenzo Zeno-Zencovich, Sex and the Contract: From Infamous Commerce to the Market for Sexual Goods and Services (Martinus Nijhoff, 1st ed, 2011) 40.

[52] Nicolas Diebold, ‘The Morals and Order Exceptions in WTO Law: Balancing the Toothless Tiger and the Undermining Mole’ (2008) 11(1) Journal of International Economic Law 43, 58.

[53] See Berne Convention (n 42) art 17. See also Murray v Benbow (1822) 1 Jac 474; Attorney General v Guardian Newspaper Ltd [1990] A.C. 109; and Ida Azmi, ‘Intellectual Property Laws and Islam in Malaysia’ (PhD Thesis, Queen Mary University of London, 1995).

[54] See Butterworth and Co (Publishers) Ltd v Ng Sui Nam [1987] RPC 485; Bulun Bulun and Milpurrurru v R & T Textiles Pty Ltd (1998) 4 1 IPR 513, 525; and Bishop v Stevens [1990] 2 S.C.R. 467. Cf Millar v Taylor [1769] EngR 44; (1769) 98 ER 201. See also Matthew Rimmer, ‘The Pirate Bazaar: The Social Life of Copyright Law’ (PhD Thesis, The University of New South Wales, 2001) 10 <> .

[55] Copyright Act (n 46) s 22(1). See also Australian Video Retailers Association Ltd v Warner Home Video Pty Ltd [2001] FCA 1719; Boomerang Investments Pty Ltd v Padgett (Liability) [2020] FCA 535; and Kogan v Martin [2019] EWCA Civ 1645.

[56] See Hollinrake v Trustwell [1894] UKLawRpCh 158; [1894] 3 Ch 420.

[57] Ice TV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14; (2009) 239 CLR 458, [28] (‘IceTV’). See also Blackie & Sons Ltd v Lothian Book Publishing Co Pty Ltd [1921] HCA 27; (1921) 29 CLR 396, 400; Donoghue v Allied Newspapers Ltd [1938] Ch 106; and Victoria v Pacific Technologies (Australia) Pty Ltd (No 2) [2009] FCA 737; (2009) 177 FCR 61.

[58] See Copyright Act (n 46) s 10(1).

[59] See Dick v Yates (1881) 18 Ch 76.

[60] IceTV (n 57) [45]. See also Macmillan & Co Ltd v Cooper (1923) 40 TLR 186.

[61] See Sands & McDougall Pty Ltd v Robinson [1917] HCA 14; (1917) 23 CLR 49.

[62] See Copyright Act 1911 (UK); and Copyright Act 1912 (Cth).

[63] University of London Press Ltd (n 35) 609.

[64] See Desktop Marketing Case (n 34); and Interlego AG v Croner Trading Pty Ltd [1992] FCA 624; (1993) 39 FCR 348. See also Graham Dutfield and Uma Suthersanen, ‘The Innovation Dilemma: Intellectual Property and the Historical Legacy of Cumulative Creativity’ (2004) 4(1) Intellectual Property Quarterly 379, 391-4.

[65] Telstra Corporation Ltd v Desktop Marketing Systems Pty Ltd [2001] FCA 61.

[66] SW Hart & Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59; (1985) 159 CLR 466, [8] (Wilson J). See also Catnic Components Limited v. Hill and Smith Limited (1982) RPC 183, 223.

[67] IceTV (n 54) [33]. See also University of London Press Ltd (n 35) 608-10; and Dennison Manufacturing Co v Alfred Hold & Co Ltd [1987] NZHC 56; (1987) 10 IPR 612.

[68] See Australian Chinese Newspapers Pty Ltd v Melbourne Chinese Press Pty Ltd [2003] FCA 878.

[69] Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd [2010] FCA 984; (2010) 189 FCR 109, [30] (Bennett J).

[70] Mark Davison, Ann Monotti and Leanne Wiseman, Australian Intellectual Property Law (Cambridge University Press, 4th ed, 2020) 65.

[71] Copyright Act (n 46) ss 32(1)-(3), 89-91.

[72] Ibid ss 29, 92.

[73] Feist Publications Inc v Rural Telephone Service Co Inc, [1991] USSC 50; 499 US 340, [12] (1991).

[74] Harper & Row v Nation Enterprises, [1985] USSC 128; 471 US 539, 547 (1985).

[75] Urheberrechtsgesetz [Copyright Law] (Germany) 9 September 1965, UrhG, 2021, art 2(2); and Droit D’Auteur [Intellectual Property Code] (France) art L111-1.

[76] See IceTV (n 57) 471. Cf Robert French, ‘A Public Law Perspective on Intellectual Property’ (2014) 17(3) The Journal of World Intellectual Property 61, 63

[77] Robert Hurt and Robert Schuchman, ‘The Economic Rationale of Copyright’ (1966) 56(1) The American Economic Review 421. See also Davison, Monotti and Wiseman (n 67) 63.

[78] Statute of Anne (8 Anne, c 19) (‘Statute of Anne’).

[79] EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd (2011) 276 ALR 35, [37].

[80] Francis Kase, Copyright Through Continental Europe: Its Development, Legal Theories and Philosophy (FB Rothman & Co, 1971) 8. See also Horacio Spector, ‘An outline of a theory justifying intellectual property and intellectual property rights (1989) 8(1) European Intellectual Property Review 270.

[81] Fritz Machlup and Edith Penrose, ‘The Patent Controversy in the Nineteenth Century’ (1950) 10(1) Journal of Economic History 1, 11.

[82] See Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351, [17] (Gleeson CJ, Gaudron, Kirby and Hayne JJ).

[83] Copyright Act (n 46) ss 33-34, 93-96.

[84] See Cummins v Bond [1927] 1 Ch 167.

[85] Copyright Act (n 46) s 32.

[86] Ibid pt IV.

[87]French (n 76) 63. Cf Peter Drahos, A Philosophy of Intellectual Property (Dartmouth, 1996) 208-14.

[88] See Wesley Hohfeld, ‘Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1917) 26(8) Yale Law Journal 710; Kevin Gray, ‘Property in in thin air’ (1991) 50(2) Cambridge Law Journal 252, 259; Stuart Green, Thirteen Ways to Steal a Bicycle: Theft Law in the Information Age (Harvard University Press, 2012) 73, 205.

[89] Green (n 88) 253-257. See also Copyright Act (n 43) s 31.

[90] See Berne Convention (n 42) art 6bis(1).

[91] Robert Merges, Justifying Intellectual Property (Harvard University Press, 2011) 173.

[92] Elizabeth Adeney, ‘Australia’s experience of moral rights’ (2019) 14(4) Journal of Intellectual Property Law & Practice 312, 313.

[93] See Copyright Act (n 46) ss 195AN(1), (3).

[94] Copyright Act (n 46) s 193. See also Corby v Allen & Unwin Pty Ltd [2013] FCA 370; (2013) 297 ALR 761.

[95] Copyright Act (n 46) s 195AI(1). See also Burton Ong, ‘Why moral rights matter: Recognising the intrinsic value of integrity rights’ (2002) 26(3) Columbia Journal of Law and the Arts 297.

[96] Copyright Act (n 46) s 195AC(1). See also Meskenas v ACP Publishing Pty Ltd [2006] FMCA 1136; (2006) 70 IPR 172.

[97] Kimberlee Weatherall, ‘“Pretend-y Rights” on the Insanely Complicated New Regime for Performers’ Rights in Australia, and How Australia Performers Got Gypped’ in Fiona Macmillan and Kathy Bowrey (eds), New Directions in Copyright Law: Volume 6 (Edward Elgar, 2005) 171, 173. See also Brent Salter and Alan Hui, ‘Empirical Studies of Moral Rights in Cases of Dramatic and Musical Works’ (Panel Paper, 16 July 2010) <>.

[98] See Anthony Dickey, ‘The Legal Concept of Obscenity in Western Australia’ [1972] UWALawRw 2; (1972) 10(3) University of Western Australia Law Review 223. See also R v Close [1948] VicLawRp 47; [1948] VLR 445 (‘R v Close’).

[99] Treasons Act (26 Henry VIII, cap. 13).

[100] Pat Rogers and Paul Baines, ‘The Prosecutions of Edmund Curll, 1725–28’ (2004) 5(2) The Library 176; Colin Manchester, ‘A history of the crime of obscene libel’ (1991) 12(1) The Journal of Legal History 36; and David Saunders, ‘Copyright, obscenity and literary history’ (1990) 57(2) ELH 431.

[101] Walcot v. Walker [1802] EngR 162; (1803) 7 Ves. 1.

[102] Southey v. Sherwood [1817] EngR 351; (1817) 35 ER 1006

[103] R v Hicklin (1868) LR 3 QB 360 (‘R v Hicklin’).

[104] Ibid 371 (Cockburn CJ).

[105] See Crowe v Graham [1968] HCA 6; (1968) 121 CLR 375, [9] (‘Crowe v Graham’).

[106] Commonwealth v Gordon, 66 Pa. D & C. 101, 125 (1949) (Bok J). See also Erik Bachman, Literary Obscenities: U.S. Case Law and Naturalism after Modernism (Pennsylvania State University Press, 2017) 16.

[107] John Calder (Publications) Ltd v Powell [1965] 1 QB 509.

[108] Crowe v Graham (n 105) 384-5. See also Mackinlay v Wiley [1971] WAR 3; Miller v California, [1973] USSC 190; 413 US 15, (1973).

[109] R v Close (n 95) 446 (Herring CJ).

[110] Candida Harris, Judith Rowbotham and Kim Stevenson, ‘Truth, law and hate in the virtual marketplace of ideas: perspectives on the regulation of Internet content’ (2009) 18(2) Information & Communications Technology Law 155.

[111] Eldar Haber, ‘Copyrighted Crimes: The Copyrightability of Illegal Works’ (2014) 16(2) Yale Journal of Law and Technology 454.

[112] See Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth).

[113] See Customs (Prohibited Imports) Regulations 1956 (Cth); and Customs (Prohibited Exports) Regulations 1958 (Cth).

[114] See Norman Robbins, ‘The Law on Obscenity... Utterly Obscene’ (1973) 22(4) The Family Coordinator 475, 477; and Michael Bess, ‘Enhanced Humans versus “Normal People”: Elusive Definitions’ (2010) 35(6) The Journal of Medicine and Philosophy 641.

[115] Jacobellis v Ohio, [1964] USSC 164; 378 US 184, 197 (1964) (‘Jacobellis’).

[116] Amy Adler, ‘What’s Left? Hate Speech, Pornography, and the Problem for Artistic Expression’ (1996) 84(6) California Law Review 1499, 1506, 1508; and Bret Boyce, ‘Obscenity and Community Standards’ (2008) 33(2) The Yale Journal of International Law 299, 304-5.

[117] See Harry Whitmore, ‘Obscenity in Literature: Crime or Free Speech’ [1963] SydLawRw 1; 1963 4(2) Sydney Law Review 179; and Jeffrey Rosen, ‘The End of Obscenity’ (2004) 6(1) The New Atlantis 75.

[118] Jacobellis (n 108).

[119] Senate Legal and Constitutional Affairs References Committee, Parliament of Australia, Review of the National Classification Scheme: Achieving the Right Balance (Report, June 2011) 175. See also Australian Law Reform Commission, Classification – Content Regulation and Convergent Media (Final Report No 118, February 2012) 361 (‘CCRCM’); and Australian Home Entertainment Distributors Association, Submission CI 1152 to Australian Law Reform Commission, Parliament of Australia, National Classification Scheme Review (November 2011) 8 <>.

[120] Convergence Review Committee, Parliament of Australia, Convergence Review (Final Report, March 2012) 40. See also Australia Law Reform Commission, CCRCM (n 112) 56-9; and Department of Communications and the Arts (Cth), Review of Australian Classification Regulation (Report, January 2020) 5.

[121] For example, see: Commonwealth Classification (Publications, Films and Computer Games) Act 1995 (Cth); Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (ACT); Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (NSW); Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic); Classification (Publications, Films and Computer Games) Act 1995 (SA); Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA); Classification (Publications, Films and Computer Games) Enforcement Act 1995 (Tas); Classification of Publications, Films and Computer Games Act 1985 (NT); Classification of Publications, Films and Computer Games Regulations 1985 (NT); Classification of Computer Games and Images Act 1995 (Qld); Classification of Films Act 1991 (Qld); and Classification of Publications Act 1991 (Qld).

[122] Crowe v Graham (n 105) [13].

[123] Mullins (n 5) 102.

[124] Alex Antoniou, ‘R v Peacock: Landmark Trial Redefines Obscenity Law’ (2013) 10(1) Graduate Journal of Social Science 85.

[125] See Wavish v Associated Newspapers Ltd [1959] VicRp 10; [1959] VR 57.

[126] William Heinemann Ltd v Kyte-Powell [1960] HCA 32; (1960) 103 CLR 351, [1].

[127] Antoniou (n 117) 90.

[128] Kyte-Powell v William Heinemann Ltd [1960] VicRp 67; [1960] VR 425, [3].

[129] Venus Adult Shops v Fraserside (n 10) [18]-[19].

[130] See Copyright, Designs and Patents Act 1988 (UK) s 171(3) (‘Copyright, Designs and Patents Act’).

[131] See Berne Convention (n 42); and TRIPS (n 47).

[132] See Vincenzo Zeno-Zencovich, Sex and the Contract: From Infamous Commerce to the Market for Sexual Goods and Services (Roma TrE-Press, 2nd ed, 2015) 68.

[133] Bonadio and Lucchi (n 3) 421.

[134] See Dominika Bychawska-Siniarska, Council of Europe, Protecting the Right to Freedom of Expression under the European Convention on Human Rights (2017); and Eric Barendt, Freedom of Speech (Oxford University Press, 2nd ed, 2005) 51-3.

[135] Jeremy Phillips, ‘Copyright in Obscene Works: Some British and American Examples’ (1977) 7 Anglo-American Law Review 140.

[136] Ashdown v Telegraph Group Ltd [2001] EWCA Civ 1142, [29]. Cf Ronan Deazley, ‘The Myth of Copyright at Common Law’ (2003) 62(1) Cambridge Law Journal 106.

[137] Copyright, Designs and Patents Act (n 123).

[138] See Jeremy Phillips, ‘Copyright in Obscene Works: Some British and American Problems’ (1977) 6(3) Anglo-American Law Review 138.

[139] Glyn v Weston Feature Film [1916] 1 Ch 261, 261 (‘Glyn v Western Feature Film’).

[140] Hyde Park Residence Ltd v Yelland & Ors [1999] RPC 655, 656 (‘Hyde Park v Yelland’).

[141] Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd [2006] FCAFC 188, [13]-[18]. See further Vivid Entertainment v Digital Sinema Aust.Pty Ltd & Ors [2007] FMCA 157 and Jani McCutcheon and Jordan Leahy, ‘Illegal copyright works and the remedial discretion of the court’ (2019) 9(3) Queen Mary Journal of Intellectual Property 326.

[142] See Nova Products, Inc. v Kisma Video, Inc., 02 Civ. 3850, (2004).

[143] Statute of Anne (n 75).

[144] United States Constitution art 1§ 8 (‘US Constitution’).

[145] Phillips (n 130) 138.

[146] See Copyright, Designs and Patents Act (n 123); and Digital Millennium Copyright Act 1998 (US) (‘Digital Millennium Copyright Act’).

[147] See Stockdale v Onwhyn [1826] EngR 761; (1826) 5 B&C 173; and Broder v Zeno Mauvais Music Co., 88 F. 74, (1898).

[148] See Hime v Dale (1803) 2 Camp. 27; and Cain v Universal Pictures Co., Inc, 47 F. Supp. 1013, (1942).

[149] See Wright v Tallis [1845] EngR 1091; (1845) 1 CB 893; and Stone & McCarrick Inc. v Dugan Piano Co., 220 F. 837, (1915).

[150] See Glyn v Western Feature Film (n 131); and Hoffman v Le Traunik, 209 F. 375, (1913).

[151] Attorney General v Guardian Newspapers Ltd (No 2) [1988] UKHL 6.

[152] Pamela Samuelson, ‘Will the Copyright Office be obsolete in the Twenty-first Century?’ (1994) 13(1) Cardozo Arts & Entertainment Law Journal 55, 56. See also Rebecca Giblin, ‘Reimagining copyright’s duration’ in Rebecca Giblin and Kimberlee Weatherall (eds), What if we could reimagine copyright? (ANU Press, 2017) 177.

[153] Mitchell Brothers Film Group v Cinema Adult Theater, [1979] USCA5 1626; 604 F.2d 852, (1979) (‘Mitchell Bros’), affd Jartech, Inc v Clancy, [1982] USCA9 124; 666 F.2d 403, (1982) (‘Jartech, Inc v Clancy’).

[154] Jartech, Inc v Clancy (n 144) 407.

[155] Mitchell Bros (n 132) 854. See Martinetti v Maguire, 16 F. Cas. 920, (1867); and Bleistein v Donaldson Lithographing Co., 18 US 239, (1903). See also Zechariah Chafee, ‘Coming into Equity with Clean Hands’ (1947) 47(8) Michigan Law Review 1065; Dan Schneider, ‘Authority of the Register of Copyrights to Deny Registration of a Claim to Copyright on the Ground of Obscenity’ (1975) 51(3) Chicago Kent Law Review 691; and Darling (n 10).

[156] FlavaWorks, Inc, v Gunter, 689 F.3d 754, 755 (2012) (‘FlavaWorks’). See also Liberty Media Holdings, LLC v Swarm Sharing Hash File, 821 F. Supp.2d 444, (2011).

[157] Eric Barendt, ‘Free Speech in Australia: A Comparative Perspective’ [1994] SydLawRw 13; (1994) 16(1) Sydney Law Review 149, 153. See also FCC v League of Women Voters, [1984] USSC 165; 468 US 364, (1984).

[158] See United States v Alvarez, 132 S. Ct. 2537, 2544 (2012); United States v Stevens, 559 US 460, 468-72 (2010); and Derek Bambauer, ‘Copyright = Speech’ (2015) 65(2) Emory Law Journal 199.

[159] Jane Ginsburg, ‘A Tale of Two Copyrights: Literary Property in Revolutionary France and America’ (1990) 64(5) Tulane Law Review 991, 911.

[160] Daniel Becourt, ‘The French Revolution and copyright, for a new universalism’, International Copyright Review (online, 5 January 1990) <>.

[161] Mike Holderness, ‘Moral Rights and Authors’ Rights: The Keys to the Information Age’ (1998) 1(1) The Journal of Information, Law and Technology 1, 1.

[162] Kase (n 77) 8.

[163] Copyright, Designs and Patents Act (n 123) s 1.

[164] TGI de Lyon [The Courts of First Instance], ch. 10 cab. 10 J, 7 February 2017.

[165] Ibid.

[166] Ibid.

[167] Ibid.

[168] See Landgericht München I [Regional Court of Munich], 7 O 22293/12, 29 May 2013 (‘Malibu Media LLC v Telefonica Germany GmbH & Ors’).

[169] See Ann Bartow, ‘Copyright Law and Pornography’ (2012) 91(1) Oregon Law Review 1. Feminist legal scholars, such as Ann Bartow, argue that ‘banal erotic’ positions (such as heterosexual intercourse in the missionary position) are uncopyrightable; and hint that any sex position that is prevalent in pornography and in real life may belong to the public domain by virtue of the doctrines of ‘merger’ and scènes à faire. Even where a sexually explicit or pornographic work is protected by copyright, such a right would be thin at best when it comes to ordinary sex scenes: meaning that, if someone reproduced these scenes without also appropriating the plot, dialogue or story arch, it would be rather difficult for a judge to establish copyright infringement.

[170] Marc Randazza, ‘Freedom of Expression and Morality-based Impediments to the Enforcement of Intellectual Property Rights’ (2015) 16(1) Nevada Law Journal 107, 136.

[171] TMA (n 48) s 42. See also Richard Shears, ‘Australian firm wins right to call itself Nuckin Futs despite outrage’, Daily Mail (online, 19 January 2012) <Australian firm wins right to call itself Nuckin Futs | Daily Mail Online>.

[172] See Joos v Commissioner of Patents [1972] HCA 38; (1972) 126 CLR 611; and Bristol-Myers Squibb Co v FH Faulding & Co Ltd [2000] FCA 316.

[173] Venus Adults Shops Pty Ltd v Fraserside Holdings Ltd (n 10) 211.

[174] Collier Constructions Pty Ltd v Foskett Pty Ltd [1990] FCA 562, [62] (Gummow J), affd Venus Adults Shops Pty Ltd v Fraserside Holdings Ltd (n 10).

[175] Venus Adults Shops Pty Ltd v Fraserside Holdings Ltd (n 10) [84].

[176] Ibid 217.

[177] FlavaWorks (n 147). See also Belcher v Tarbox, [1973] USCA9 539; 486 F.2d 1087, 1088 (1973).

[178] Venus Adult Shops (n 10) [22].

[179] Ibid [91].

[180] Bartow (n 160) 1.

[181] Sony Corp. v Universal City Studios, [1984] USSC 14; 464 US 417, 450 (1984).

[182] Luke Curran, ‘Copyright Trolls, Defining the Line between Legal Ransom Letters and Defending Digital Rights: Turning Piracy into a Business Model or Protecting Creative from Internet Lawlessness’ (2013) 13(1) John Marshall Review of international Property Law 170, 173.

[183] See Robert Merges, ‘The Trouble with Trolls: Innovation, Rent-seeking, and the Patent Law Reform’ (2010) 24(4) Berkley Technology Law Journal 1583.

[184] See Matthew Sag, ‘Copyright Trolling: An empirical study’ (2015) 100(1) Iowa Law Review 1105.

[185] Matthew Sag and Jake Haskell, ‘Defense Against the Dark Arts of Copyright Trolling’ (2018) 103(1) Iowa Law Review 571, 574.

[186] Christopher Civil, ‘Mass Copyright Infringement Litigation: Of Trolls, Pornography, Settlement and Joinder’ (2014) 30(1) Syracuse Journal of Science & Technology Law 2, 54.

[187] Ibid.

[188] Gerald Dworkin, ‘Judicial Controls of Copyright on Public Policy Grounds’ in Jan Kebel and Gerard Mom (eds), Intellectual Property and Information Law: Essays in Honour of Herman Cohen Jehoram (Kluwer Academic Publishers, 1998) 141, 141.

[189] Mullins (n 5) 5.

[190] See Rachel Yurkowski, ‘Is Hyde Park Hiding the Truth? An Analysis of the Public Interest Defence to Copyright Infringement’ (2001) 32(1) Victoria University of Wellington Law Review 1053.

[191] Ibid.

[192] Bartow (n 160) 5. See also Kurt Schmalz, ‘Problems in Giving Obscenity Copyright Protection: Did Jartech and Mitchell Brothers Go Too Far?’ (1983) 36(2) Vanderbilt Law Review 403.

[193] See Hurt and Schuchman (n 74). Cf French (n 73).

[194] Eric Johnson, ‘Intellectual Property and the Incentive Fallacy’ (2012) 3(2) Florida State University Law Review 623, 650. See also Giancarlo Frosio, ‘A History of Aesthetics from Homer to Digital Mash-ups: Culminative Creativity and the Demise of Copyright Exclusivity’ (2015) 9(2) Law and Humanities 262.

[195] Satish Sambisan, Donald Siegel, and Martin Kenney, ‘On Open Innovation, Platforms, and Entrepreneurship’ (2018) 12(3) Strategic Entrepreneurship Journal 354, 357.

[196] Susanne Kopf, ‘“Rewarding Good Creators”: Corporate Social Media Discourse on Monetisation Schemes for Content Creators’ (2020) 6(4) Social Media + Society 1, 1.

[197] Darling (n 9) 750.

[198] See Zach Blumenfeld, ‘Selling the Artist, Not the Art: Using Personal Brand Concepts to Reform Copyright for the Social Media Age’ (2019) 42(2) The Columbia Journal of Law & the Arts 241, 262.

[199] Hohfeld (n 85).

[200] Adeney (n 92) 316.

[201] Kim-Marlène Le and Julien Pénin, ‘Appropriation under Low Intellectual Property Regimes: The Role of Communities in the Online Alternative Adult Entertainment Industry’ (2017) 21(3) Management International 71, 73.

[202] Darling (n 10) 718.

[203] Michael Carroll, ‘One Size Does Not Fit All: A Framework for Tailoring Intellectual Property Rights’ (2009) 70(6) American University Washington College of Law 1361, 1363.

[204] Tim Dornis, ‘Non-conventional copyright: an economic perspective’ in Enrico Bonadio and Nicola Lucchi (eds), Non-Conventional Copyright: Do New and Atypical Works Deserve Protection? (Edward Elgar, 2018) 455, 455.

[205] Ibid.

[206] Ibid.

[207] Lydia Loren, ‘The Pope’s Copyright? Aligning Incentives with Reality by Using Creative Motivation to Shape Copyright Protection’ (2008) 69(1) Louisiana Law Review 5, 12.

[208] Darling (n 10) 765.

[209] Dotan Oliar and Christopher Sprigman, ‘There’s no free laugh (anymore): The emergence of Intellectual Property Norms and the Transformation of Stand-up Comedy’ (2008) 94(8) Virginia Law Review 1789, 1793.

[210] Mount Isa Mines Ltd v Pusey (n 20).

[211] Dornis (n 215).

[212] Ibid 460.

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