There has been much discussion of a newly enforced law in Japan regarding online piracy. A-Kon, for which I run various programs, and most other anime conventions do not permit bootlegging at events and internet piracy definitely counts. As such, advocating for or enabling piracy is not allowed on most anime convention web sites and social media but we do encourage open exchange of ideas and concerns. Spirited discussion is one thing, and talking about the consequences of this change is important, but there are limits when it comes to advocating theft. Discussion in online forums regarding the supposedly “new” anti-piracy law in Japan has become rather heated in the past few days and the prime complaint seems to boil down to “Waah, I can’t get stuff for free anymore” though there are certainly thoughtful advocates on both sides. Indeed, Melissa Lum of the State Bar of Texas Intellectual Property Section presented a paper at the FANS Conference in Dallas earlier this year entitled “Is Copyright a Dirty Word?” so there is definitely room for debate on the matter. The law, which has penalties ranging as high as ten years in prison or ¥10 million for uploading with smaller penalties for downloading, has been on the books for several years but entered enforcement on 1 August 2014.
Now, as to the practical implications, there are some problems. The new initiative is “a partnership between the government and a list of affected copyright holders,” according to Akita International University Associate Professor of Law Dr. Akiba Takeshi, against about 580 known upload sites with a focus on anime and manga, but the trouble is that all of the offending sites are outside Japan’s territorial jurisdiction. The Chinese component alone is estimated to have been worth $5.5 billion annually (¥560 billion) in 2013, though there is some dispute about how such numbers are calculated. Further, Beijing seems indifferent to the breach of their own laws in this matter despite being signatory to all the major treaties on the subject. This is more than the entire value of the legitimate global market in 2004, an estimated $3 billion (¥290 billion, figures not adjusted for inflation).
To Dr. Ichikawa Hiroya, Professor of Economics at Akita International University, it appears that “as it stands, the application of the legislation depends on the cooperation of the Chinese courts and, by extension the Chinese government. Without support, any actions taken in Japan are just likely to be blustering and hot air. It remains to be seen if this will lead an embargo on Chinese media imports.” Dr. Akiba largely agrees, saying, “My professional position is that it will be almost impossible for such pressure to work.” Further, Hong Kong and Macau are excluded from at least one of the international agreements and those are the places where the servers tend to be located. So-called “private servers” for everything from Minecraft to World of Warcraft are rife there so it is not a huge leap to believe other illicit servers exist in those jurisdictions, too, and there is, according to Akiba, evidence that legislatures there “officially support pirate companies.”
Laws to deal with this problem have long lagged in the Hong Kong Legislative Council, and even if they had passed, John Madieros, a local leader among copyright stakeholders, called 2013 attempts “thin gruel.” To make matters worse, the ongoing diplomatic row between China and Japan over the Senkaku/Diaoyu Islands and attendant fishing and mineral rights makes cooperation on anything unlikely.
That Taiwan is similarly involved in both areas, copyright and territory, makes things all that much weirder. The Russian Federation, also home to many of the violating hosts and its own land dispute with Japan at the opposite end of the country, is its own kettle of very, very difficult fish on this and everything else these days, their international tank biathlon notwithstanding.
Lastly, the laws are unlikely to be enforced against American streamers, or even Japanese ones, for that matter. According to Akiba, “Even in the US it has proved almost impossible to track and punish downloaders and uploaders both. In the UK, I believe there are even plans to scrap copyright infringement cases, as a waste of money.” Without China, and specifically Hong Kong, agreeing to cooperate with enforcement practices and evidence gathering against either hosts or streamers, the law has no teeth; an odd metaphor for nations associated with dragons in the Western mythic mind. Even if they are enforced against US violators, they would be tried in the States and held accountable accordingly under various WTO agreements. The relevant US law is the DMCA, but even that is fraught with problems. Having been on the receiving end of a threat of an illegal fine and unconstitutional warrantless search of my personal computer by my university during my student days, and having beaten the threat, I’m a minor authority on that topic and it’s a mess. So, in practical terms, this means little if any change in the status quo for Americans because much of it is unenforceable or enforced in unconstitutional ways.
For historical context, fans in the States in the 1980s would painstakingly provide subtitles to their favorite works of anime or make manga scanlations and send copies on to other fans. The original copies were mostly purchased legitimately by American service members serving in Japan or South Korea and then shared with friends and family members upon return stateside. There are known sixth-generation VHS copies of such things as they filtered eastward from California. Distribution for manga had a smaller network that functioned in much the same way. The simultaneous Japanese business practice of “strategic indifference” allowed this custom to continue for years because most companies just refused to acknowledge that there was market potential in America, legitimate or otherwise.
The underlying fandom assumption, however, was that once there was a licensed product available in the US, the fan productions would be destroyed. The subbers and scanlators would annihilate their own work and ask those with copies to do so as well. Those who did not honor these requests, or who made money beyond reimbursement for shipping video tapes and thick printouts all over the country, were shunned by the majority of fans and eventually cut off from fan distribution networks. These practices relied on the honor system and they mostly worked. However, the internet has changed all that. Once something is uploaded, even if only in one place, it is available to the public everywhere and it is virtually impossible to remove all copies. Akiba laments, “You shut down one site and another ten pop up, like the heads of the Hydra.”
Many younger otaku have grown up in an era in which the internet is a given and they are unfamiliar with any other way of doing things. Not being able to access their favorite anime, manga, or other media titles may well be frustrating and difficult to understand. It is also awkward for older fans forced to go back to more traditional distribution routes that have either escalated in cost as the internet provided competition or were priced out of existence. But the fact is that the internet has changed how media are distributed and the relative newness, historically speaking, of the online world means it is still in flux as a social, legal, and intellectual format. No solution is going to be perfect, but the status quo provides few if any meaningful options for content creators to protect their works and there are serious limits on fans trying to enjoy their favorite media. Something needs to be done to keep legitimate copyright holders in relative control of their works while guaranteeing the fandom affordable legal access.
The present system is deeply broken, as is perhaps best demonstrated in the case of Diego Gómez from Columbia, who is deeply embroiled in an academic copyright case despite the custom of open access most researchers prefer. Further, copyright takedown notices against even legitimate negative reviews and critiques further confuse the situation. These are not copyright violations due to the fair use principle, important both for academia and for sites like Sequart, but some creators on the receiving end of unflattering commentary seem not to understand how this practice works. As an educator, I often rely on fair use to get copies of rare, out of print, or just plain weird (read: fun) items to my students that would otherwise be prohibitively expensive. Copyright trolling law firms, and their cousins in patent trolling, only add to the difficulties. Fan art and fanfiction present their own problems despite being at least as old as Virgil’s Ænead. One might argue that all apocryphal or deuterocanonical works count as fanfiction, but that may just make the situation even more confusing for everyone involved. In at least one case, because traditionally whoever takes the picture rather than the camera owner is the actual copyright holder, it appears that a macaque might be a copyright owner; alternatively, there might be no owner at all in that case since she isn’t human despite the efforts of some animal rights activists.
But the legal doctrine of res nullius, “nobody’s property,” is even stranger and may not apply in this case. Then there’s Open Culture, a site dedicated to having as much material as possible freely and legally available online, ranging from maps to concerts to books. These are just a few of the confusing situations that copyright stakeholders have to confront on a daily, sometimes hourly, basis.
The problem is made worse when online rights advocacy groups muddy the waters, issuing statements about things they clearly do not understand (I prefer to attribute incompetence rather than malice whenever possible). For example, the Electronic Frontier Foundation, with whom I frequently agree, has consistently opposed such legislation claiming that copyright infringement “is not theft.” They maintain this because they do not understand what intellectual property is or what copyright law is intended to protect, a feature of jurisprudence at least as far back as Blackstone with antecedents going back to ancient Roman law. What EFF ignores is that a right in a thing, copyright in this case, is a form of property in that thing and always has been. As such, copyright infringement is theft in all relevant legal senses. One can critique this holding, and I do in some few details of how the jurisprudence has evolved in the last few centuries, but one cannot change the definition of a word just because it is convenient to do so. Such misunderstanding is made still more obvious by the claims and counterclaims of Darren Davis and Jaymes Reed regarding copyright of various graphic novels. Neither the EFF’s stance nor the Davis-Reed dispute will serve copyright holders or fans because they obfuscate the real problems underlying the system, the worst of which is that nobody in positions of legislative power, media promulgation, or social influence seems to understand the concept.
From the fans’ side there are several tracks they can take. First off, make sure you are enjoying legitimately available content. METI, the Japanese Ministry of Economy, Trade, and Industry, provides a site here where you can check to guarantee your provider is licensed. There are also the better known sites such as Cruncyroll, Hulu, and even Netflix that are highly respected even if their selection is sometimes limited. Secondly, and this affects hardcore fans more than the average folks, petitions to get some of the more obscure titles made available in the US can also work. Funimation, AnimEigo, Crunchyroll, Netflix, and Viz Media all have histories of listening to the desires of their fans and bringing catalogue items to American audiences as best they were able. Online petitions in particular can gain notoriety and bring about action on the part of distributors. Lastly, and as an educator this is my personal favorite, one can learn Japanese and buy a favorite anime or manga directly from the producers.
Not all of these solutions, and this is not intended as a comprehensive list by any means, will work in every case. The METI list may be outdated. Fandom petitions may not work for any number of reasons, not least of which is that the companies involved just can’t get the licenses no matter how hard they try. Learning Japanese, or any language, can be a daunting task; it’s not for the faint of heart. But even an unsuccessful attempt along any of these lines is infinitely better than grousing about no longer being able to get away with theft or, worse still, simply perpetuating the theft through still shadier avenues that have their own dangers for the downloaders.
In all, there are likely to be no real changes in how the streaming community works on a global scale due to this new enforcement of Japanese law. Even if a user is arrested, they will be charged under their own nation’s rules. Consequences will still be rare, for the streamer at least, but that doesn’t make it right. Creative artists are indeed suffering economic losses in a market already strained to the limits, and the effort itself is important even if unsuccessful. Akiba explains that, “The current action might have no more teeth than the 2012 piracy law, but by focusing attention on the matter, their actions piggy-back on broader, US led action against general piracy.” Sometimes a show of force is enough to do the job.
I do not claim to have all the answers. But I would ask that nations, content creators, and stakeholders generally sit down and have a rational discussion about what really goes on in the world today rather than depending on legal systems and concepts that are outdated in ways that hurt everyone.
UPDATE: The US Copyright Office has released a draft of updated rules for copyright and who, or what, can own copyright. This was in part a response to the dispute between Wikimedia Commons and photographer David Slater. At contest was whether or not Slater owned the photo that was actually taken by a macaque playing with his camera. The USCO has emphatically ruled that they “will not register works produced by nature, animals, or plants.” It goes further to state that they “cannot register a work purportedly created by divine or supernatural beings.” A list of examples of non-copyrightable works follows and begins with the instant case of a monkey playing with a camera. The full list can be found here in section 306 and emphasizes that all works must be of human origin. The jury is still out on extraterrestrials.
Author’s note: I would like to express my sincere gratitude to Dr. Darren Ashmore, head of Japanese studies at Akita International University, for relaying questions to Dr. Ichikawa and Dr. Akiba in addition to reading and commenting on a dozen drafts of this article.