About six months ago I wrote here on Sequart about the new enforcement of copyright laws in Japan. Since that time their efforts have had some chance to play out in the real world and what follows is a look at the state of affairs six months in.

Perhaps most encouragingly, Ken Akamatsu has created the Zeppan Manga Tokushan, an online resource for legal uploads and sharing of out-of-print manga. The limitation is that the service is seeking actual permission from authors and other creators before letting the uploads go live. It’s only available in Japanese at the moment, but hopefully that will change in coming months. In the US, however,  there has been ever more evidence that copyright, as a system, is seriously broken when creators and publishers, two groups who should be on the same side, cannot come to terms and the Supreme Court refuses to do justice. Of course, federal courts have a history of doing this. In 2003, the US Court of International Trade ruled that the mutants of the X-Men franchise were not human, thus betraying a gross lack of understanding of the subject matter and its core dynamic tension. As such, fans and creators alike can have little faith in the current copyright regime no matter where the rules are enforced.

The Intellectual Property High Court of Japan (IPHC) has existed since 2005 and is a subset of the Tokyo High Court. As a special branch, the IPHC has a great deal more autonomy than other branches of the Japanese court system and its structure is quite singular. The trouble is that the bench has been dominated by those with expertise in science and technology, following the court’s mandate on patents and related matters in addition to copyright, rather than including those knowledgeable in publishing or artistic works. They have thus had to rely on outside expert commissioners for advice; while a good plan in theory, these positions are part time, thus making advice inconsistent, and take people away from their regular work as authors, professors, artists, and performers. The system has worked with regard to patents, but the IPHC itself acknowledges the problems with applying it to copyright cases. So little regard is given to copyright that, in the article linked above from the IPHC’s own website, all non-patent items under their jurisdiction receive less than half a page of space under the heading “Other Cases.” In the list of the court’s decisions, copyright cases only make up 126 of the 1,165 available on their website, and almost all recent discussions on intellectual property between the US and Japan have been in regard to patents. The topics centered on anti-patent troll legislation, an important consideration in its own right, but there has been effectively no direct communication on copyright between Japan’s legal system and the West, and meetings with Chinese delegates, the source of most of the legal problems under consideration, have been purely pro forma. Russia, another major source of problems for copyright protections in Japan, has refused even to sit down at the table on the topic despite an open invitation to Russian President Vladimir Putin to do so while discussing the Northern Territories dispute later this year.

The Japanese court system in general, copyright and otherwise, is focused on expediency and case specifics rather than the more broadly sweeping common law system in use in the UK, America, and other similar nations. Indeed, it can easily be shown that while the number of cases has remained fairly constant before the court, the average time of disposition has been drastically decreased with no real enhancement of the rights of copyright and other stake holders.

All of this takes place in the context of the new Special Secrecy Law which came into effect 10 December 2014. What one can and cannot publish is now rather strictly limited with respect to commentary on the government and it remains to be seen whether this will apply to artistic criticism. One of the nation’s most respected newspapers, the Asahi Shimbun, has refused to accept the validity of the law. Their major criticism is that “the new law almost limitlessly widens the range of what can be considered confidential by allowing bureaucrats and politicians to designate state secrets to their liking” while prior law set out specific criteria for what could legitimately be declared a state secret. Worse, “the general public will be put in a position of not even knowing what is a secret. Those who leak such ‘secrets’ face a maximum prison term of 10 years.” The number of documents being classified has been going up in recent years and this just makes things worse. Kyodo news agency said that “about 460,000 documents would in effect immediately.” The law is worse still by having almost nothing in the way of oversight or accountability.

How Does This Affect Me?

Aside from the stifling of public discourse in a way that is far scarier than what happened with Charlie Hebdo because it is less honest, the above concerns combine into an almost perfect storm of consequences for content creators. Consider a hypothetical situation.

A writer or artist in Japan creates a story or film that depicts, with uncanny accuracy, something outlined in one of the documents classified under this law. The creator had no way of knowing that because even what is secret is a secret in an infinite recursive loop. If charged with violating the law, the government can hold them and convict them even in the absence of any whistleblower who, of course, does not exist. They would then languish for years in prison for a crime they did not commit with no one knows what collateral charges tacked on for good measure making it still worse. There is no word yet if this could, even in theory, be applied to non-Japanese living elsewhere but who publish in Japan, but the law seems popular with US authorities despite the fact it would not pass constitutional muster here.

Think it can’t happen? Think again. Recall the conspiracy theory furor over the March 2001 pilot episode of the Lone Gunmen series, a spin-off of X-Files, when the plot was so very, very close to what happened on 9/11. All it would take to go from internet ranting to real world jail time would be for the Japanese government, again with no accountability, to take it seriously. This is the same government that denies its own WWII atrocities and supports Holocaust deniers. In such circumstances, almost anything is possible.