Issue link: https://maltatoday.uberflip.com/i/1300177
15 maltatoday | SUNDAY • 18 OCTOBER 2020 ANALYSIS own party lead- er or handing him an effective weapon to disorient the opposi- tion? A battle-cry for the next election Abela can't afford to fight an election where the main item on the agenda remains corruption and the scandals of the Muscat era. Neither can the opposition hope for a repeat of the 2017 election. Bernard Grech himself seems to have learnt the lesson by pouncing on the govern- ment's handling of elderly care during the pandemic. Neither can anyone expect vot- ers to dismiss bread and butter issues – even if corruption and subservience to big business impinge on long-term sustaina- bility, quality of life and compe- tence in handling the pandemic. But with COVID-19 crippling the economy and killing the el- derly, Abela should not just fall back on Labour's economic track record except in em- phasising that the rich coffers gave the government breath- ing space to keep spending up during the pandemic. When having to deal with this kind of headache, "culture wars" on migration and hunting have the advantage hav- ing no bearing on dominant busi- ness elites, unlike more radical demands for stricter planning rules, rent controls and the in- troduction of a living wage, which Labour seems less keen on pushing to the fore. Without a left-wing alternative and with the PN keen on reassuring busi- ness elites and potential donors, Labour can afford to pay hom- age to these issues without really addressing them. A real socialist party would fight the next election on a rad- ical platform of transparency, sustainability and social justice. But Abela would prefer presid- ing over a hotchpotch of issues which keeps unlikely bedfellows – the xenophobes, groupies and turncoats, social liberals, par- tisans, developers and hunters – united in an electoral bloc that holds the conservative Na- tionalists at bay, but riven with massive contradictions and pos- sibly even more scandals for the future as the murky wine gets re- packaged into new bottles. When having to deal with this kind of headache, "culture wars" on migration and hunting have the advantage having no bearing on dominant business elites, unlike more radical demands for stricter planning rules, rent controls and the introduction of a living wage, which Labour seems less keen on pushing to the fore OVER the past few weeks, the site OnlyFans.com became a hot topic of discussion in Malta follow- ing the publicity of Maltese couple Shyli Rose and Jordan Grech who openly encouraged persons seeking sexually explicit content to subscribe to their content by joining the site. Not long after, the couple heard news of their content being copied by certain users for the pur- pose of distributing it with others, which goes against the site's strict Terms of Use agreement. The couple started a nationwide search for the us- ers who were spreading their content in order to take legal action against them for loss of revenue. Many have been sceptical on whether or not the couple have a solid claim for damages under Maltese law and whether persons who shared the content were actually committing an offence in the first place. Since such a claim for loss of rev- enue by Creators of sexually explicit content has no precedent in our jurisdiction, it poses an inter- esting legal question which can be clarified by an analysis of our copyright laws in Malta. The use of onlyfans.com is becoming increas- ingly popular, especially among young people, as their choice for viewing sexually explicit content. On the site, creators can upload content (re- ferred to as 'User Content'), usually explicit and/ or sexual in nature, to be viewed by users against a subscription fee. Once the subscription fee is paid, the user has access to a feed where the crea- tor posts their content. The creators also have an option to ask users to pay extra for more exclusive and/or explicit content which would be sent di- rectly to the user, who according to the terms of the website, is allowed to keep one copy for per- sonal use and is strictly prohibited from sharing it. You might think that OnlyFans is no different to any other pornographic website, but to the contrary, OnlyFans does not own the user con- tent which is created and posted to the site. This means that creators have full rights over their content, including copyrights. In fact, the site au- tomatically watermarks the user content on the site with the username of the creator in order to clearly indicate ownership over the content. This means that cre- ators themselves have a direct action against copyright infringers. Since the user content is owned by cre- ators, the answer to whether a creator in Malta has an action against persons who distribute their content lies in Maltese law. The Copyright Act outlines catego- ries of works which are eligible for automatic copyright: artistic works, audiovisual works, musical works, lit- erary works and databases. The kind of content created by creators on Only- Fans.com would fall under the category of audiovisual works which includes films and videos. That being said, it must have been created by an individual who is a cit- izen, domiciled or permanently resident in Malta and the material must have been filmed by them directly. With respect to such copyrighted content the following is prohibited under the Act: i) the direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part; ii) the rental and lending; iii) the distribution; iv) the translation in other languag- es including different computer languages; v) the adaptation, the arrangement and any other alter- ation and the reproduction, distribution, com- munication, display or performance to the public of the results thereof; vi) the broadcasting or re- broadcasting or the communication to the public or cable transmission; vii) display or performance to the public. Legally speaking, creators on Onlyfans.com have an action against any person who commits the above infringements using their user content by means of a direct action to the First Hall Civil Court. The Court may, according to the circumstances of the case, condemn the infringer to the payment of damages to the Creator or to the payment of a hefty fine. The only defence that will save in- fringers from punishment is to prove to the court that, at the time of the infringement, they were not aware that copyrights subsisted in the work for which the action relates. However, most creators on Onlyfans write a description on their feed which would include a warning to users not to copy and distribute their material. Therefore, unless such a warning is not present, it would be difficult to prove that at the very least one did not know that such material was owned by creators and should not have been shared. Regardless of whether one ethically agrees with the creation of sexually explicit content as a busi- ness or means of generating revenue, it is not ille- gal in Malta unless it in any way promotes violent and/or threatening acts or if it includes minors. Similar terms exist on Onlyfans.com, and there- fore creators are bound to stick within certain pa- rameters; sexual content between or featuring consenting adults. Any type of solicitation or advertising of escort services and/or prostitution is also prohibited by the site. It is therefore quite clear that this is legally compliant with some aspects as laid down by Maltese law. Therefore, if the content is copied, poten- tially altered or modified, and/or shared publicly the creators who follow these rules may have a claim for the signifi- cant loss of revenue which is actiona- ble in Court. There is also the danger of the material being shared into the wrong hands such as minors, which is a criminal of- fence. Therefore, a word of warning: an in- nocent share of the content can lead to some pretty heavy consequences. Dr Naomi Bugre is a lawyer Sharing OnlyFans vids? It's copyright breach even if it's porn Naomi Bugre Illicit sharing of original content is a serious copyright breach