I came across an interesting article in researching a paper for another class. I found it really remarkable because it highlights the extent of issues copyright can concern itself with: in this case, copyright infringement principles can be used by victims of “revenge pornography” (i.e. the non-consensual distribution of private sexual imagery) to have such material removed from web hosts. Although the authors base their analysis in the UK context, I believe it would be equally applicable to the Copyright Act in Canada (although I would be interested to hear if anyone can think of ways in which it would not be applicable).
Copyright arises automatically at the point of creation of a work, does not require registration, and gives the author of a work an exclusive right to control, among other things, the distribution, reproduction, and making available of the work to the public. The holder of copyright in an image can use that right to request that a website refrain from distributing or reproducing the image. This is an ideal situation for victims of ‘revenge porn’. If they hold the copyright in an image, they do not need to obtain the assistance of the uploader of the image. Instead, their copyright in the image means that they have the exclusive right to control the distribution and reproduction thereof, and can exercise that right to prevent a website from further distributing an image.
I think an obvious problem is that even if a victim asserts copyright infringement, websites devoted to hosting revenge porn content are unlikely to actually respond to these claims by taking down the images. The victim would then have to file a claim against the web host, which they may not have the resources to do (to say nothing of the professional, emotional, or financial toll of launching such action). I therefore see the use of copyright law as a weapon against web-based sexual offenders as a potential last-resort, or a mechanism to be used in tandem with other avenues of redress.
I would be keen to hear what others think of this 🙂
O’Connell, A., & Bakina, K. (2020). Using IP rights to protect human rights: Copyright for ‘revenge porn’ removal. Legal Studies, 40(3), 442-457. doi:10.1017/lst.2020.17