Do New and Atypical Works Deserve Protection?
Edited by Enrico Bonadio and Nicola Lucchi
Chapter 19: Copyright protection of illegal works
Whether copyright law should be neutral to content is not an easy question to answer. On the one hand, copyright law strives to remain neutral to content when granting protection, and would usually only deny protection under narrow requirements such as lack of fixation and originality. One of the main justifications for such a neutrality approach rests on the notion that it is beyond copyright law’s mandate to act as a censor, and that denying protection based on the content of works could, inter alia, produce a chilling effect on creativity, and place a high burden on those who decide which works should receive copyright protection. On the other hand, some works that are eligible for protection not only do not advance knowledge or contribute to society, but rather further harm its members. Key examples are illegal works like snuff films and child pornography. Should the law promote and encourage these types of works by granting them legal protection? To answer this complex question, this chapter will offer a taxonomy for illegal works and lay foundations for the normative discussion on whether the law should grant rights and remedies for the makers of such works, and whether copyright law is the proper tool to censor them or limit their profitability.
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