This article has been written by Pendekanti Lakshmi Supraja, pursuing the Certificate Course in Media and Entertainment Law: Contracts, Licensing and Regulations from LawSikho.

Introduction

Anime has become a major source of entertainment throughout the world in recent times.  It is popular among all ages of people. Even famous OTT Platforms like Netflix, Disney Hotstar have started streaming anime to attract people.  With the advent of technology, the creators of anime are prone to unauthorized exploitation of their work by the public in the name of fan-based activities which can be stated as piracy. These activities affect the main aim of the copyright law that is to balance the exclusive rights of the author and public policy because by doing so the fans are violating the rights of the author which are granted to them as per the copyright law. This act of piracy has caused problems to legitimate licensing and distribution companies. New and unpredictable methods of infringement have been introduced by the internet which is the result of technological development. So it is necessary to analyze the problems, perspectives, strategies to deal with the copyright infringement and copyrightability of the anime.

Copyright law and anime

The copyright law classifies the exclusive rights of the original author into economic and moral rights. Economic rights include the right to reproduce, the right to communicate to the public, the right to translate, the right to adapt and exploit the derivative works. Moral rights deal with the reputation of the author and the right to safeguard his integrity.  If any third party performs any activities mentioned above without the authorization of the author, then it amounts to copyright infringement. 

The law recognizes two mechanisms where the exclusive rights and control of the work vests even with the other party along with the original author. Firstly, if the work made by the original author is during employment and contract for service, secondly when the author transfers his/her rights to commercial intermediaries who will decide how the copyright should be used. The anime is protected under artistic work and creative work of copyright law. In the case of anime, the commercial intermediary would be publishing houses and production houses that adapt the work of the original author and reproduce it to their desired form with the authentication of the original author.   However, the copyright law has limited the infringement acts by excluding the research, private study, and for non-commercial purposes but does not explicitly mention the promotion of culture.

Analysis of Japanese anime

One of the famous anime is Japanese anime which has gained huge popularity not only in the home country but also in other countries like the U.S, China, etc. The animation and manga were described as new and emerging media arts along with feature film in the 2000 White Paper of Japanese Government Policies in Education, Science, Sports, and Culture.  In 2010, when a survey was made among Chinese youth regarding their favorite animation about 60% preferred Japanese Anime. In 1963, while setting a foundation for modern Japanese Anime with his work “Tetsuwan Atomu” Osama Tezuka did not expect the significant growth of anime that is prevalent now.

Due to the popularity, many fan communities have been created that act as a bridge between the original authors of anime and the general public. The phenomena of Fandom will be created when a person fond of already created work portrays the specific genre which he/she felt attractive that will lead to the formation of a community with the fans who share similar interests. Within these communities’ fans share different news, spread comments.

To show their affection towards the anime many fans created groups that take the components from the original anime and create derivative works that include translating the work to another language, taking storyline and developing different work, creating audio-visual content with music, and so on. Although these activities are encouraged by many fan communities, they are deemed as copyright infringement in most countries. Generally, fan-based works are classified as fansubs, fanfics, and fanvids, doujinshi. The copyright law is challenged by both domestic and international fan-based activities.

The legality of fan-based works

• Doujinshi

Doujinshi is a type of fan-based work where the authors take characters, background from manga, anime, video game sources to develop them into a different storyline so that they get profits by selling the anime. As per the Japanese Copyright Law, Article 18 to 28 prescribes the list of rights granted to the author. And the communities involved in doujinshi violate the right to translation, the right of preserving the integrity of the author, and the right to exploit the derivative works of the original authors of anime. Although there are statutory exceptions for copyright infringement this work cannot be included in that since it can seem commercial rather than criticism. Even in countries like China and the U.S, a doujinshi is an act of copyright infringement because of its commercial nature and it affects the original content which is already created.

• Fansubs

Fansubbing can be defined as “a particular type of non-commercial translation and subtitling process of foreign mass media products.” Unlike Doujinshi which is less ambiguous, the fansubs encroached on the rights of the authors more clearly. If we observe the elements of fansubbing individually, we can find that it is merely a translation of the existing original content. The translation is included as derivative works and is copyrightable. Committing such an act without the prior permission of the author amounts to copyright infringement. These works act as a pathway that connects international fans with domestic content. Even though there is no commercial transaction involved in these types of works the online publicity is not included in the statutory exceptions of copyright law.

• Fanfics and fanvids

When compared to the above-mentioned cases, the determination of copyrightability of both the fanfics and fanvids is complicated because in this type of works the court has to determine whether the work is original or derivative. As per the interpretation of many case laws by the Chinese Supreme Court, the work will be deemed to have independent copyright if the expression of the works is “on the same theme” but are “creatively and independently completed”. However, in the case of fanfics and fanvids even though they are departed from the original, they still constitute copyright infringement if the derivative works prejudice the original works. While enforcing the copyright law in the domestic markets, a balance can be set between the damages and benefits of fan-based activities.

International usage and market of anime

Before the advent of technology, foreign countries used to share from the domestic country through DVDs and VHSs. The more demand for anime works and the transactional costs imposed on the foreign fans induced them to create derivative works of the original content without the prior authorization of the author. People used to conduct conventions where fans from different countries attend, share their views, work and sell the merchandise they created. These conventions accelerated the piracy of anime. With the advent of technology, foreign fans used to download the content illegally because unlike in the previous days they need not pay any transactional costs. Other than the piracy the countries like Japan faced other problems related to market access and they are as follows:

1.  Some fan communities argue that these anime works are public goods since they benefit all members of society and they do not have such strict copyright protection. By using this as a reason many unauthorized online distributors have emerged that led to cat and mouse games between them and copyright holders.
2. Even though there is an international convention called National Treatment, some countries like China obstruct the free entry of anime that have economic and political policies. They treat local and foreign products differently by the promotion of socialistic culture.
3.  Some countries lay down censorship on foreign audio-visual work that limits the broadcasting hours and streaming time of the programs. For example, the U.S , although it has a close relationship with Japan, they broadcast the content by imposing censorship guidelines some time they modify the content according to their local environment. In such cases, the integrity rights of the author are encroached and also lead to fan-creating fansubs.
4. As there is the involvement of transnational markets the copyright owners have to undergo high transactional costs that include marketing costs, promotions, and advertising.
5. Compared to Hollywood movies, Japanese Anime does not have much publicity worldwide and it is not given priority by seeing it as “for child consumption”.

The rationale for activities of fan communities

The fan communities strongly believe that their activities are different from physical theft as there is not much priority given to commercial transactions. They strongly argue that even though it is illegal to copy without authorization it is not morally wrong. They contended that the uneasiness and complications regarding the exclusive rights in the copyright law led them to do such unauthorized activities. The fan communities see such activity as an act of pleasure that helps in exchanging information with others. They want their culture to be known to all the people in the world and propagate their culture through these fan works and exchange their cultural views. They supported their actions by emphasizing the monopolistic activities of the film and music industries who are prioritizing their interests rather than focusing on the welfare of the public. The legitimate content and the merchandising products are very costly and the industry is gaining profits that leave them with an option to unauthorized copying and sharing. They argued that they access the online content if they do not  find the content anywhere else. They also give reasons like humanitarian grounds such as freedom and democracy. They pointed out that the less accessibility of the content triggers them to fill the gaps for the demand and supply. The fan communities also set up certain norms and treat the above-mentioned reasons as ethics. 

The approach of Japan and the US in dealing with unauthorized online sharing of content

In the U.S, there will be the issuance of mass ‘John Doe’ orders to the infringers whereas in Japan they are dealt with individuals which can be observed from two different cases and the court approach towards the infringers.

In the case of A&M Records, Inc. v. Napster, Inc. the Ninth Circuit in the United States found a file-sharing platform Napster as an infringer for sharing the copyrightable content with people in his network. It was also held that the infringer did not satisfy the test of fair use and hence it does constitute infringement. Whereas in Japan where a similar case was dealt with in 2009, the Supreme Court of Japan held “Winny” a file-sharing platform is not an infringer because he did not have the intention to infringe the content rather use it for legitimate purposes.

We can say that different approaches of different countries create loopholes for the infringers that cause the unauthorized exploitation of the anime.

Adopted strategies 

By copyright owners

If we deeply analyze the activities of all the fan communities, not all of them infringe on commercial purposes; rather, they follow certain norms which they have formulated. One such norm is called “STOP WHEN LICENSED”. As per this norm, the Japanese fan communities will stop creating unauthorized content once they license content to legitimate websites in the U.S. Hence the copyright owners give the license to make derivative works to many anime websites.

Although the activities of fan- communities are frowned upon by the copyright owners some are tolerated by the copyright owners. They deemed those activities as promotion to their content and respect their affection. Sometimes the copyright owners conduct meetings with such fan communities and also launch the fan-created version. They called this strategy “ tacit tolerance”. We can see many instances like J.K Rowling, Hatsune Miku, etc who cooperated and tolerated the derivative works of the fan communities. But instead of differentiating them and claiming them illegally the tolerance to such activities is not advisable.

By government

If the copyright owners are unable to handle the misuse of “tacit tolerance” then the Government must step in. And one such measure is that the Ministry of Economy, Trade, and Industry in Japan announced a plan called “Manga Anime Guardian Project” (MAGP) to safeguard the anime from international copyright infringement. MAGP has created a specific website that contains the links of all the legitimate translated anime and manga. METI intends to bring up all the individual websites that promote the illegal content of anime and prevent them from committing the act of piracy. However, it was criticized by many people saying that it will affect even the fan-based works which are genuine. There are also certain drawbacks to MAGP

• Firstly, this website contains only links to the licensees and not the new content. Fans who always wanted to be up to date with the content will not find it as an option.
• Secondly, the links in the website do not lead to legitimate content rather it will take the fans to the advertisement where it shows the infringing websites to watch content other MAGP’s websites.
• Thirdly, some links in this website are pay per view which discourages the fans to watch legitimate content.

The companies license their content to many websites, OTT Platforms which pave the way for legitimate usage of anime content. However, due to the speed and less cost fans prefer illegal fan-based works to these legitimate websites.

Suggestions

The solutions can be by both governmental proposals and non-governmental proposals. There should be an introduction of a new fair use exception or introduce an exemption period / interpretive right. From the copyright owners’ perspective, they should grant   Creative Common Licenses and No Action Policy that are revocable exemption notices issued by the copyright owner to grant authorization of the content. The copyright owners should maintain good relationships with the fan communities like exempting some fan communities from infringement mentioned in their websites. For better results, it is the duty of the industry. The industry has to set up official websites with similar functions of fan communities to unite them with the copyright owners and all the fans should be allowed to participate in fun activities. This strategy will encourage the fan communities to upload their content to the official websites.  The copyright term for the anime should be short duration because of its disposable nature because the popularity of one anime will fade out after a certain period and hence providing long-term copyright protection for such works is not advisable.

Conclusion

The copyright law is being driven by economic forces rather than the welfare of the public. Many measures which are imposed by the government are favoring the author that affects the balance to be established through copyright law. Though Anime acts as the bridge where two ends meet it does create certain complications that cannot be taken care of instantaneously. All the aspects of the industry should be vigilant of their actions so that they cannot create any loopholes that can be misused by fan communities.

References

1. Tianxiang He* What Can We Learn from Japanese Anime Industries?  The Differences Between Domestic and Overseas Copyright Protection Strategies Towards Fan Activities
2. Allison Hawkins, “Piracy as a Catalyst for Evolution in Anime Fandom” The American Journal of Comparative Law
3. Emily Schendl, “Japanese Anime and Manga Copyright Reform” Washington University Global Studies Law Review, Volume 15 Issue 4 Symposium: Seventy Years After Nuremberg
4. Lee, H. K. (2011). Cultural Consumer and Copyright: A Case Study of Anime Fansubbing. Creative Industries Journal, 3(3), 237-252. https://doi.org/10.1386/cij.3.3.237_1.

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