Free Speech/IP Rights, Pornography and Technology

Pornography has had bad press. Constitutionally, it virtually enjoys no protection at all, lodged in a category called, unceremoniously, unprotected speech. This notwithstanding, the pronography industry has boomed, from its lowly (pun intended) origins and has grown to be a billion dollar industry. The only rationalization could come from the human male's (almost always the client) unsatiable need for visual stimulation.

The industry's survival despite the absence constitutional protection is nothing short of remarkable. The relevant issue at hand, however, is whether the industry could effectively utilize intellectual property protection.

In intellectual property law, the only relevant category which creates an ip right in favor of an individual (natural or juridical) is originality. The standard is relatively low in most jurisdictions, such that work which possess no creative idea whatsoever behind it could qualify for originality, provided that it can be proven that it is not copied from somewhere/someone else.

In pornography, the industry's possible use for IP enforcement is endless. However, difficulties do arise. In particular, jurisdictions like the Philippines which typically pursue repressive measures against these type of media. Concretely, one could fancy being a lawyer for Hustler, walk up to the IPO Office and demand IP protection. In this jurisdiction, one might either be laughed out of the office or arrested for indecency. (The latter is an exaggeration)

When they classified IP rights as territorial, they could have said that it was cultural as well.

by nestor gadrinab