Intimate Images and Authors’ Rights: Non- Consensual Disclosure and the Copyright Disconnect

This article responds to a brand of legal realpolitik that says using property law to respond to the non-consensual distribution of intimate images (NCDII) is appropriate and even necessary, because its remedial frameworks are well developed and provide the relief that is often most sought after by targets of an assault: the immediate removal of photos from online platforms. While some targets are not considered the ‘‘authors’’ of their intimate images, most of the images that are the subject of NCDII are selfies, taken by the target themselves. In these cases, that person rightfully owns the copyright in those images and would be able to make use of that right in seeking a remedy.\nIn this article I argue that it is incumbent on legislators to develop remedies for NCDII that do not rely on proprietary frameworks to address the harm that results from image-based sexual abuse. The article will proceed in three parts. In Part 1, I will discuss the nature of NCDII and conceptualize the harm. Here I argue that NCDII is an extreme privacy invasion and a form of gender-based violence. I briefly address how Canadian law has failed to provide an effective remedy for the victims/survivors of NCDII — canvassing both criminal and civil approaches to redressing the harm. In Part 2, I examine the justifications for intellectual property law. I argue that early privacy theorists were correct to conceptualize privacy and property as two distinct rights with material differences in the kinds of interests they were designed to protect. I make the case that the modern Anglo-American approach to copyright — dominant in Canada and the U.S. — is weighted towards economic rights and explore how the Supreme Court of Canada’s articulation of copyright’s purpose balances these economic rights with public interest concerns. In Part 3, I discuss how copyright remedies fail to respond to NCDII harms, including privacy, dignity, and equality. I acknowledge that copyright, when used as a practical tool, provides some remedies that may otherwise prove elusive, but I also highlight the inherent challenges faced by individuals relying on copyright law for those remedies. I conclude with the recommendation that legislators should focus on creating a sui generis remedial framework for NCDII that acknowledges the true nature of the harm and provides victims/survivors with effective remedies — including those that are so powerful and attractive within copyright law.

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