Pauline Wong is the Assistant Director of IP Osgoode.

Professor Ann Bartow (University of South Carolina, School of Law) has recently published her research on “Copyright Law and the Commoditization of Sex”. Professor Bartow’s scholarship focuses on the intersection between intellectual property laws and public policy concerns, privacy and technology law, and feminist legal theory.  Along with Professor Bridget Crawford (Pace Law School), she runs the “Feminist Law Professors” blog.

In her paper, Professor Bartow advocates for copyright law to be used as a constitutional means of discouraging the creation of pornographic works.  While the denial of copyright protection would not violate an author’s free speech rights, it would decrease the economic value of the work, thus serving as a disincentive to creating the pornographic work in the first place. 

The article is self-described as proceeding in four parts:

1. Copyright law has a structural role in the commoditization of sex. When a generally illegal act of buying and selling sex is fixed in a tangible medium of expression, it becomes an act of free speech that is protected by the First Amendment and an article of intellectual property that is protected by copyright laws
2. Copyright is not a content neutral construct. Copyright laws facilitate the suppression of speech that is copyrighted, speech that is substantially similar to speech that is copyrighted, and speech that is an unauthorized derivative work of speech that is copyrighted. Injunctions premised on allegations of copyright infringement are acts of content based censorship by the government.
3. Some pornographic works may cause harms during production, or as a consequence of distribution, or both. These works are non-progressive and non-useful, and therefore beyond the purview of the Intellectual Property Clause of the U.S. Constitution. They include child pornography, crush pornography, “revenge” pornography, and pornography in which the performers are physically abused or endangered.
4. Withholding copyright protection from non-progressive and non-useful pornographic works would appropriately reduce the government’s role in creating economic incentives for their creation and distribution. Amending the Copyright Act to reduce the ways in which the economic value of harmful pornography can be exploited is a legitimate policy choice that Congress can and should make. The government should not continue to provide copyright incentives for the production and distribution of harmful works.

Professor Bartow also draws comparisons between copyright law on the one hand and patent law and trademark law on the other, explaining that similar approaches can be found.  On trademark law, the paper’s Abstract describes, “The Lanham Act’s prohibition of the federal registration of scandalous and immoral marks provides an example of government promulgated content based restrictions that do not offend the Constitution. Admittedly, however, the unpredictable, inconsistent manner in which the prohibition is enforced is problematic and worrisome.”

For me, it would be interesting to see whether decreased copyright protection for a pornographic work might lead to increased reproduction and distribution of the work in a way that also creates harm.  This is difficult to assess as developments on the internet are so face-paced and the future of piracy is so hard to predict.  Professor Bartow pulls together an immense amount of research and analysis in this paper to make for a fascinating read.