The pornography's concept and standard of judgment have been continuously criticized. The Supreme Court's judicial precedent started from 'judgment of relative pornography' considering subjective will or intention of the one who produces, distributes or possesses pornographic materials, and the standard of judgment could not give objective judgment guideline of the pornography to be criticized because of risks of arbitrary law enforcement. Therefore, the Supreme Court made change standard of the judgment from relative pornography to objective pornography that judged deion of the sex, art and thought from point of view of common adults: But, the standard has been continuously criticized because of abstract feature and uncertainty.
The Constitutional Court of Korea clarified and materialized the standard more than before. The citizens still made use of various kinds of terminologies of pornography including dirty, vulgar and suggestive because of absence of clear standards of pornographic materials. The regulation on the pornography exists at border between regulation and protection of freedom of expression of the Constitution that is well known. Not only conservative viewpoint but also liberalism viewpoint was inconsistent each other in the past: Then, feminism viewpoint made appearance to diversify thought of regulation and protection on the pornography to be complicated.
As such, the pornography had various kinds of concepts and standards of judgment to distribute it more on Internet so that regulation on the pornography was given new and complicated challenge. A lot of the pornography video on Internet is supplied and distributed owing to easy distribution, anonymity and unlimited time of digital media.
The normative control can classify subject systematically without lessening of the scope and to be ineffective from point of view of the Criminal Act as well as the administrative law. New regulation on the pornography needs to be discussed considering supplementation and ultimate step of the Criminal Act from point of view of criminal regulations.
New control of the pornography can be based on copyright protection. To admit of copyright of the pornography and control it effectively, good harmony between Internet pornography and common copyright, legitimate distribution market, and standards and scope of independent copyright, etc are required. To identify legitimate Internet pornography, the organization that judges pornography shall be unified, and scope of copyright that has considered characteristics of Internet pornography shall be made.
The entity, subject and types that Internet pornography infringes upon copyright shall be similar to those of common copyright. The criminal responsibility of infringement of Internet pornography upon copyright needs to consider following factors deeply and carefully: At first, infringement of Internet pornography upon copyright can be mostly thought to be intentional and wilful and to be criminally responsible and punished when an infringement exists. The infringement shall be punished at cognition considering characteristics of Internet technology, and punishment can be done when cognition on the infringement exists at the same time. And, Internet pornography needs to inspect admission of profit from point of view of criminal responsibility. The period that protects copyright needs to be shortened to protect copyright considering depreciation as well as short consumption of Internet pornographic materials that differs from common type of intellectual property protecting copyright for a long time. But, copyright protection time can lessen supply and distribution of illegal Internet pornography so that balanced protection time needs to be established.
The cases of not only the United States but also Germany did not admit of copyright of Internet pornography explicitly. The United States adopted two positions, that is to say, the one does not admit of copyright in accordance with the principle of Clean Hands, and the other does not follow exclusion of copyright of pornographic materials from protection. The German court has not judged copyright of the pornography yet: But, the court judged that pornographic novel should be protected considering freedom area of the art so that it was thought to protect copyright. Germany has no special regulation of infringement of Internet pornography upon copyright, and it seems to punish infringement of Internet pornography upon copyright same as criminal responsibility of common infringement even if each individual case admits of copyright.
In Korea, new regulation of criminal policy on Internet pornography is needed considering development of high speed Internet, nationwide IT distribution and wide use of Internet. The regulation and requirements that can protect copyright of Internet pornography to follow pornography related regulations of the Criminal Act shall be enacted. The current copyright exclusively protects all of the works in lump sum at same level: But, the pornography needs to be handled in differential way from point of view of norms considering social cognition on the pornography. The regulation on confiscation of crime related earnings and benefits needs to revise and to effectively regulate earnings and benefits made by infringement of Internet pornography upon copyright.