In 2009, the American and Japanese producers of adult video accused more than 10,000 netizens in Korea of illegal distribution of the video on the Internet. Each police station processed the cases in different ways. Some of police stations gave prosecutors' office opinion of non-indictment because adult video was of no value to protect copyright, while others gave opinion of indictment.
Recognizing copyrightability of adult video may give impression that laws and regulations protect obsene works. On the other hand, not recognizing copyrightability of adult video can be seemed to stands up for behaviors of the netizens who earn profits and benefits from so many users on the Internet without permit to let investigative agency be fallen into difficult situation.
It is generally agreed with the idea that production and distribution of adult video that might have adverse influence upon the society should be prevented. Copyrightability has been argued as a method to compress the production and distribution of obscene works. However such a traditional notion has been challenged and confronted from many other perspectives.
This study was made despite shortage of precent studies as follow:
Firstly, historical approach was used. The historical approach mainly investigated judicial precedents in the UK as well as the United States. Some of the judgments discuss whether obscene works is copyrightable or not. This study examined the judgment as well as changes of standards of obscenity to know whether or not obscene works could be protected by copyright. And, the study investigated traditional theories that did not protect obscene works by copyright, and discussed that obscenity could not preclude copyrightability.
Secondly, doctrinal approach was used. First of all, the positive law was literally interpreted. The positive law did not interpret that copyrightability did not exclude obscene works so that the author attempted to interpret in relation with associated laws and regulations and to investigate whether the laws were omitted simply or intentionally. And, the author investigated that the work protected by the Copyright Act could be neutral from morals, ethics and other normative values, and that the work had compliance standard of existing legal system. And, the author discussed the work by the trademarks law and the patent law, and investigated losses and damages that could occur when not protecting obscene works by the copyright, and argued that they could not be excluded from copyrightability.
Thirdly, policy based approach was used. The study investigated that the copyrightability of obscene works has have influence upon pornographic industry. And, the study examined effects from point of view of protection of the women.
Lastly, the study examined protection based on right of publicity. The study investigated right of publicity that could prohibit commercial use of portrait and other identities and performance of either an actress or an actor of adult video, and that was not protection based on copyright.
The author has reached a conclusion that obscenity shall not interrupt copyrightability. The prence of pornographic materials that is supported by empirical evidence can be no more than a fear. Pornographic materials should be regulated not by copyrightability but by criminal laws and other specially tailored laws to prevent to make, distribute and circulate them and to confiscate the earnings and profits from them. No admission of copyrightability because of obscenity may lessen production of pornographic materials more or less, but it can produce enormous losses and damages because of limited freedom of expressions to be very much serious and dangerous beyond imagination. This study reached a conclusion that copyrightability should be content-neutral. Therefore, the copyrightability should be free from morality, ideology, religion, belief and legitimacy.