The denial of copyright protection on public policy grounds

Abstract

Copyright protects almost everything and that which it protects, it protects indiscriminately. It does not distinguish between, for example, books that are "wise or foolish, accurate or inaccurate, of literary merit or of no merit whatever". The unquestioning (and automatic) application of copyright protection is said to be one of copyright's strengths. Judges do not become the arbiters of artistic, literary, or moral standards and apply their own idiosyncratic notions. Yet, copyright protection has been denied to works because they were fraudulent or deceptive, obscene, indecent, immoral, blasphemous and irreligious, or "reek[ing] of turpitude", because it would have been against public policy to protect such works. The denial of copyright protection on public policy grounds is shrouded in uncertainty. Does the public policy ground exist? Or is it merely a mantra, much like the idea/expression dichotomy, brought out to contradict the argument that copyright protects too much for too long, but which is ignored if it is inconvenient.