Japan Approves New Law To Make Manga Piracy A Criminal Offense

from the what-constitution? dept

Roughly a year and a half ago, we discussed a proposed amendment to Japanese copyright law that would seek to criminalize copyright infringement. The general consensus is that the chief impetus for this new addition to Japanese copyright law centered on the manga industry, which is a multi-billion dollar industry, despite that particular media being pirated alongside all other media. Whereas Japan's copyright laws were generally in line with American laws, specifically in that copyright infringement is treated as a civil matter, this new law changed that up to make it a criminal offense. The problem with that, as many people pointed out, is that Japan's constitution is quite clear that anything akin to censorship cannot be done except for the following circumstance:

“An act unavoidably performed to avert a present danger to the life, body, liberty or property of oneself or any other person is not punishable only when the harmc produced by such act does not exceed the harm to be averted."

For years and year, copyright infringement didn't meet that threshold. Now, suddenly, the Japanese government says it does. The idea of Japan eroding its own constitution as a favor to the manga industry is almost too insane to believe, except that it happened.

There were other complaints about the proposed law, including the proposed draconian punishments that would have been handed out. The Japanese government claims to have addressed those concerns in a now approved draft of the legislation.

The draft legislation criminalizes the downloading of unlicensed manga, magazines and academic publications from the Internet. The penalties will be brought into line for those already in place for music and movies with a maximum two-year prison sentence and/or a fine of two million yen (US$19,118). The most severe penalties will be reserved for egregious and repeat offenders.

In a step back from earlier proposals, Internet users will be allowed to download some image-based and academic content for limited private use in order not to stifle the flow of information and education, provided that activity does not impact copyright holders. Where the precise boundaries lie is currently unclear, however.

As we stated in our initial post, this is going to be a complete mess. For starters, criminal codes that represent massive culture-shifts to an entire country that can be described as "unclear" seem to be almost perfectly constructed to produce chaos. One can expect the courts to be suddenly full of such cases, with defendants that will have no idea why they are in court, why they were arrested, and why they might face jail time. And that's if this law isn't immediately challenged in Japanese courts on constitutional grounds, since the changes made to the drafted law still don't address the prohibition on censorship.

On top of that, some of the targets of this legislation aren't actually direct infringers.

One aspect that is perfectly clear is the outlawing of so-called “leech” sites. These platforms, known in the West as linking or indexing sites, do not carry any copyrighted content themselves but provide hyperlinks to infringing material hosted elsewhere.

Operating such a service in Japan will become punishable by up to five years in prison and/or a fine of five million yen (US$47,780). The latest estimates suggest that there may be up 200 of these “leech” sites in the country, a figure the government is hoping to reduce.

It seems fairly insane to punish sites that merely link to other content with five figure fines and five year prison sentences.

But then it seems that insanity is all that's on the menu for this change in the law. Vaguely-worded, manga-protecting criminalization of copyright infringement that violates the constitution is a series of words I never thought I'd write, but c'est la vie.

Filed Under: copyright, criminal copyright, japan, manga

New Study On Effects Of Manga Piracy Show Piracy's Effects Are More Nuanced Than Good Or Bad

from the comicly-nuanced dept

In all of our years and years of discussions on piracy and copyright infringement, one sweeping issue with the public discourse on the topic is how bereft of nuance it is. It's as though the world has been confronted with a massively complicated topic, the internet and digital piracy and their effects on content makers, and decided to make the conversation binary. Piracy is fine. Piracy is horrible.

It should be immediately apparent how absurd that type of thinking is. Complicated issues require complicated analysis that often times has complicated outcomes. Serving as an example of this, a recent study out of Japan on the effects of piracy for the manga industry shows exactly these kind of mixed and complicated results.

Newly published research by Professor Tatsuo Tanaka of the Faculty of Economics at Keio University suggests that both sides have a point.

The findings come from a natural experiment that uses a massive takedown campaign conducted by anti-piracy group CODA in 2015. This campaign reduced the availability of pirated comics on various download sites, which allowed Professor Tanaka to analyze how this affected sales of 3,360 comic book volumes.

The results, recently published in the article titled “The Effects of Internet Book Piracy: Case of Comics,” show that the effect of piracy differs between ongoing and completed series. In other words, the effect of piracy is heterogeneous.

Interestingly, if a manga series is a completed finished product with no more issues being produced, antipiracy efforts show positive sales effects for that series. On the other hand, for ongoing series, antipiracy efforts actually reduce future sales of that series. And, if you think about this for five seconds, that makes all the sense in the world. Illicit copies of an ongoing work will attract new potential readers of the work as the cost barrier to trying out the new series is null. Once a reader is gained illicitly, some percentage of those readers will go on to begin paying for the product. This happens either because of the way people use piracy as a no-risk method for trying out a new product or because of a more easy or convenient method to buy the product instead of pirating it.

What it absolutely does not show, however, is that content makers should be uniformly against piracy in every situation, full stop.

“If the effect of piracy is heterogeneous, it is not the best solution to shut down the piracy sites uniformly but to delete harmful piracy files selectively if possible. In this case, deleting piracy files of ongoing comics only is the first best strategy for publishers regardless of whether the total effect is positive or negative, because the availability of piracy files of completed comics is beneficial to both publishers and consumers.”

Nuance. Selective enforcement. These are not the hallmarks of the entertainment industries, unfortunately, but it has been demonstrated that they would be useful tools to those industries if they were applied. Is piracy good? No. Is piracy bad? No. It's all much more complicated than that and it would be nice if our public discourse reflected that.

Filed Under: copyright, impact, manga, piracy

Japanese Government Seeks To Circumvent Its Own Constitution To Censor 'Pirate' Sites

from the that's-not-how-constitutions-work dept

With site-blocking regimes now fully in vogue, far too many governments are getting in on this censorious party. In the cases of most governments, there is leeway in the overall legal structure to do this sort of thing, even if it is wholly unadvised and typically comes with disastrous results. But when Japan announced recently that it is considering site-blocking of so-called "pirate sites" in order to help its anime and manga industries, many familiar with Japanese federal law raised an eyebrow.

The country has no specific legislation that allows for site-blocking of any kind, let alone on copyright infringement grounds. In fact, the constitution expressly supports freedom of speech and expressly forbids censorship.

“Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed,” Article 21 reads. “No censorship shall be maintained, nor shall the secrecy of any means of communication be violated,” the constitution adds.

If you wanted a federal constitutional provision that almost perfectly inoculated against censorious site-blocking over something as relatively mundane as copyright infringement, this would appear to be it. The writers of the Japanese constitution clearly were concerned about government censorship and specifically prohibited it.

This has not stopped the government from trying to dip its toes in these waters, chiefly by pretending that copyright infringement is something that it isn't.

Mainichi reports that the government will argue there are grounds for “averting present danger”, a phrase that’s detailed in Article 37 of Japan’s Penal Code.

“An act unavoidably performed to avert a present danger to the life, body, liberty or property of oneself or any other person is not punishable only when the harmc produced by such act does not exceed the harm to be averted,” the Article (pdf)begins.

It’s fairly clear that this branch of Japanese law was never designed for use against pirate sites. Furthermore, there is also a clause noting that where an act (in this case blocking) causes excessive harm it may lead “to the punishment being reduced or may exculpate the offender in light of the circumstances.”

If Japan indeed goes down this route, it will be a complete mess at best and result in the eroding of its own constitution at worst. To combat copyright infringement. The very notion of this is insane. Creaking open the door for this kind of full site-blocking censorship, a door that will surely be burst through by every major and minor content producer in Japan and abroad, and subverting the nation's constitution in order to support one specific industry within the country that isn't hurting for money, make zero sense. The manga industry in Japan alone is a multi-billion dollar industry and it's growing. Whatever challenges it faces from copyright infringement, it's not existential in nature.

As of now, the government looks to be softening its approach to make this kinda-sorta voluntary by ISPs.

It appears that rather than forcing Internet providers into compliance, the government will ask for their “understanding” on the basis that damage is being done to the anime and manga industries. ISPs reportedly already cooperate to censor child abuse sites so it’s hoped a similar agreement can be reached on piracy.

Initially, the blocking requests will relate to just three as-yet-unnamed platforms, one local and two based outside the country. Of course, this is just the tip of the iceberg and if ISPs agree to block this trio, more demands are sure to follow.

This has been true in virtually every case where site-blocking has been introduced. It starts off as the mere exception before being strong-armed into the rule.

Don't do this, Japan. Don't torch your own constitution over a non-problem.

Filed Under: censorship, constitution, file sharing, free speech, infringement, japan, manga

Japanese Anime And Manga Fans Worried About How TPP Will Kill Important Fan Fiction

from the don't-mess-with-dojinshi dept

Over a decade ago, we first wrote about how manga and anime in Japan was thriving in part due to the rise of fan fiction (even for-profit fan fiction) and the fact that the lawyers for official publications didn't try to shut it down. Instead, they realized that such fan fiction was often quite good for the original, official versions of the products. Over the years since then, we've had a bunch of similar stories. Rather than trying to hit fans with copyright infringement claims, publishers were willing to embrace those fans and it helped everyone in the industry.

However, many in the fan fiction -- dojinshi -- market in Japan are now worried that the Trans Pacific Partnership (TPP) agreement may now kill off that happy, mutually beneficial (even if technically infringing) setup. At issue is that the TPP may require more stringent enforcement of copyrights, even when the copyright holder has no problem with what's happening.

Usami and other creators of fan fiction, however, could face the possibility of legal prosecution as copyright violators in the future, depending on the outcome of TPP negotiations.

Some countries are apparently demanding that Japan clamp down on knock-off and pirated works in the intellectual property arena, even if the copyright holder does not object to it.

The more cynical among you might point to the fact that the dojinshi market's proof that copyright maximalism can be counterproductive, and allowing free flowing "infringement" among fans creating derivative works, so bothers some people that they feel the need to kill off such an important counter-example to the maximalist narrative. However, those involved in the space in Japan recognize that not enforcing copyright law has been better for everyone:

Many experts say the Japanese anime and manga subculture has thrived due in part to a tacit understanding in society that fan fiction should be accepted to a certain extent to allow room for amateurs to shine.

The recent Comic Market is one indication of the level of demand for dojinshi and other works of fan fiction. A total of 520,000 visitors attended--many of them teenagers or in their 20s--while about 35,000 groups sold dojinshi and other related goods.

Some are even worried that it might extend to cracking down on cosplay:

“The creation of derivative works has helped the expansion of the market (for anime and manga), a rich gray zone built based on a gentleman’s agreement between original artists and amateur creators,” [lawyer Kansaku Fukui] said.

If the copyright law was enforced without a formal complaint, not only dojinshi, but also parodied creations of movies and literature, could be subject to a crackdown, Fukui said.

He added that even cosplayers could be a target, especially if their costumes were elaborately made and if a video of the costume play was uploaded on the Internet.

“If people think about the possibility of coming under questioning, they might cower,” he said.

I would imagine that the various negotiators of the TPP probably aren't all that familiar with anime, manga or cosplay -- but pissing off fans of all three probably isn't particularly wise.

Filed Under: anime, copyright, cosplay, dojinshi, fan fiction, japan, manga, tpp

DRM Strikes Again: Digital Comics Distributor JManga Closing Down... And Deleting Everyone's Purchases

from the ensuring-only-pirates-will-have-access-to-its-comics dept

DRM is rearing its malformed head again and biting the hands that feed it. Rather than simply making an otherwise useful product useless unless requirements x, y and z are met, this time DRM is issuing a clawback on purchased rented digital goods.

Nate Hoffelder at The Digital Reader has the details.

JManga broke some hearts this week when they announced that they were ceasing operations.

This digital manga distributor announced earlier this week that they would no longer sell manga as of 26 March and planned to shut down completely in May.

These things happen. Nothing unusual about a company going out of business, but the words "digital manga distributor" should give you pause (especially if you were a customer).

Any customers with store credit would get a refund in Amazon.com gift cards...

Well, that's certainly thoughtful of them. Wait, why's there an ellipsis on this sentence?

… and any purchased content will be lost when JManga turns off the lights in May (no downloads allowed).

Oh. Fun. Yes, JManga, distributor of digital manga, decided to hold off the pirates by screwing the customers and it's all spelled out in infuriating black and white at JManga's official, soon-to-be-former site.

c.) Manga Viewing Service Termination

Date: May 30th at 11:59pm (US Pacific Time) Details: As of May 30th 2013 at 11:59pm (US Pacific Time) users will no longer be able to view digital manga content on JManga.com. At this time all purchased and free digital manga content will be erased from all JManga Member’s accounts.

And, yes, no downloads are allowed, according to the FAQ.

It is not possible to download manga from My Page.

So, the pirates win again. JManga's DRM will allow the distributor to delete paid for manga from customers' accounts, but presumably all DRM-stripped pirate "accounts" will remain unaffected in perpetuity.

It began promisingly enough.

JManga launched with much fanfare in 2011. This company was backed by the 36 publishers of the Japanese Digital Comics Association, and it was created as a laudable response to the then rampant fan-based scanlation (piracy and English-language translation) of Japanese comics. By offering a legitimate option these publishers hoped to provide the content that was obviously desired by fans.

Unfortunately, things went downhill quickly thanks to pricing issues (mainly that they were too high) and a failure to capitalize on a rapidly growing smartphone market. Now, it's out of business and its insistence on protecting its products with DRM has resulted in the following scorecard -- pirates affected: 0; paying customers affected: ALL.

What we have here is a yet another example of the fact that DRM does nothing but punish the paying customer. It doesn’t actually stop piracy; in this case piracy was already rampant thanks to readily available scanners and a large and enthusiastic fan base.

All that was accomplished with JManga was that the legitimate customer was punished for being honest and paying for the content they received. The pirates, on the other hand, weren’t bothered at all.

I wish more publishers could learn from this mistake, because the hostility that has been shown toward JManga customers is appalling.

"Hostility" is the correct term. Protecting your offerings from those who aren't paying by making those who actually support you subject to anything from minor annoyances to HAVING ALL THEIR PURCHASES DELETED can't really be described as anything but. Adding a layer of perversity to the mix is the fact that JManga is still allowing customers to purchase its products until March 26th, despite the fact that these too will be deleted on May 30th.

When you combine digital goods with DRM, it's lose-lose for paying customers. It turns purchases into rentals and subjects purchasers to the whims of the company. Whether its a verification server being shut down or a company going out of business and taking all its content with it, it all spells bad news for those who exchanged money for goods not even worth the paper the license isn't printed on.

Filed Under: drm, manga, punishment
Companies: jmanga

Award-Winning Manga Author Opens Up His Work To Be Used By 'Anyone, Anywhere, For Anything,' Royalty-Free

from the your-move,-Disney dept

There's a rhetorical question that often gets thrown our way here at Techdirt: "If you remove the protection of copyright, how are artists supposed to make a living?" Despite many, many answers having been given, the question persists. Here's another look at a possible answer in progress.

Via Plagiarism Today comes the news that Shuho Sata, the author of "Burakku Jyakku ni Yoroshiku" ("Say Hello to Black Jack"), is getting set to fly without the copyright safety net. He's freeing his 10-million selling manga from the limits of copyright as a form of "second use."

This means that after 15 September anyone in the world will be free to novelize, televise, create merchandise, or in any way adapt the original work for either commercial or non-commercial purposes without having to pay royalties. This is the latest move in the writer's quest to find alternatives to the “outdated” model of intellectual property rights.

Earlier this year, Sato ended his relationship with the original publisher of the Black Jack series and started his own publishing website, where his works are currently uploaded. That was the first step in Sato's quest to discover how artists might make a living without relying on exclusivity and enforcement.

“The traditional model of making profit by holding onto a copyright is gradually going stale” he said. “I want to explore the possible benefits to authors beyond this system.”

To this end, Sato will also be displaying his work at the pixiv Zingaro in Tokyo and providing a copier for visitors to use to "replicate whatever they want." A few more details of his plan are available at the pixiv Zingaro site. Sato will not actually be renouncing his copyright. Instead, he has chosen to not enforce it, in essence granting the entire world free rein to use his work to create foreign language adaptations, applications, commercial films, TV series, produce merchandise or anything else the "second users" can come up with. 

The fine print on the deal reads as such (translation a bit wonky -- via Chrome):

Terms of Use: do not need to contact us in advance.
Royalty others: we do not require any reward.
You are happy if you can use the work freely.

Sato admits he has no idea how this will turn out, but is clearly interested in observing the results. His feeling seems to be (again, translation issues) that there has to be a better system than the current one and the only way we'll find something better, or one that fits more in line with today's technology, is to head in the opposite direction and see where that leads us.

Someone is sure to point out that Sato is only doing this after selling 10 million copies thanks to existing copyright laws, as if that somehow negates the effort he's making. I invite those particular someones to observe all the other artists out there who have sold millions but still clutched that copyright close to their chests for the remainder of their lifetimes and well into the lives of their heirs. 

Filed Under: copyright, manga, royalty free, shuho sata

WIPO Article About Manga Piracy Describes Publishers' Failure To Meet Demand In Graphic Detail

from the why-not-sell-them-what-they-want? dept

Somehow you rather expect the head of the WIPO to come out with a statement on the potential benefits of patenting the World Wide Web. But you probably don't look to the WIPO website to carry stuff like this:

Like most comics, manga (roughly translated as "whimsical pictures") is rooted in sequential art - a narrative made up of images and presented in sequence. The earliest examples of Japanese sequential art are thought to date from the 12th century Chōjū Jinbutsu Giga animal scrolls.

The term "manga" is believed to have been first used by the renowned 16th [sic] century woodblock print (ukiyo-e) artist, Katsushika Hokusai (1760-1849).

That's taken from an article called "The Manga phenomenon" published in the September 2011 edition of the "WIPO Magazine" (who knew that such a thing existed?) But why exactly has WIPO developed this sudden interest in manga? You probably guessed this was coming:

Manga continues to enjoy a broad global appeal but the industry is suffering acutely from the scourge of piracy.

Here's the WIPO article's explanation of what happened:

When it was first launched internationally, manga occupied a niche market in many countries. However, it soon captured the imagination of readers around the world, spawning an enthusiastic international fan base that became increasingly frustrated by the inability to access the same content as their Japanese counterparts. The need to translate manga from Japanese meant there were inevitable delays in their international release. Moreover, many titles were never released internationally because they were deemed inappropriate for specific markets, were unsuccessful in Japan, or were only published locally by independent publishers.

The Internet offered fans a wonderful solution. Many learned Japanese, acquired the original manga, then scanned, translated, edited and posted them on the Internet for free downloading. Alas, what began as a practice driven by enthusiastic fans has become a serious blight on the industry. So-called scanlation - the act of scanning, translating and posting manga on the Internet - is, in fact, striking at the heart of manga and threatening its very existence.

Unauthorized scans or "raws" are typically generated by individuals who scan books into electronic format, a practice known as jisui, which translates as "to cook for one’s self." With the uptake of e-book readers and computer tablets, jisui has become a fully-fledged business with the emergence of popular scanlation aggregator websites hosting thousands of manga episodes and making them available free of charge. Those who do scanlation rake in profits through advertising on their own websites and also earn points which can be turned into cash for each download made from an aggregator website.

This shows that publishers were doing such a poor job meeting the demand for manga outside Japan that it drove some fans to go to the trouble of learning Japanese, acquiring the original manga, scanning them, translating them, editing and then posting them on the Internet. That sounds like an incredible business opportunity for manga publishers to "rake in profits through advertising on their own websites," instead of letting others profit. But unauthorized sites were left unchallenged, and flourished as a result:

Scanlation groups, of which there are now well over a thousand, are perpetuating a highly corrosive form of piracy that is threatening the industry, causing global manga sales to plummet and forcing publishers to lay off staff. From 2007 to 2009, for example, U.S. manga sales fell by 30 percent forcing a leading publisher to lay off 40 percent of its workforce.

What exactly were the manga publishers doing to staunch these losses overseas during the last four years? Absolutely nothing - they only started trying to capture all that lost revenue this year:

But major manga publishers are fighting back by reaching out to manga fans in new ways. This year, Kadokawa Group Publishing Co. Ltd. (Kadokawa) simultaneously released a large number of popular titles in key Asian markets. Companies like Tezuka Productions are making available legal, electronic English-language versions of popular manga for tablet computers and, earlier this year the Japan Book Publishers Association launched a series of initiatives to clamp down on unauthorized scanlation activities.

The question has to be: if it was clear that the scanlation groups were "raking in" profits from online manga, why weren't the publishers offering authorized copies to meet this huge demand back in 2007?

This is a classic tale of old-style media companies refusing to seize the opportunities offered by the Internet's "wonderful solution" to foreign distribution. Instead, the manga publishers assumed their customers would passively wait until some far-off day when authorized versions were finally made available. And they seem to regard it as extraordinary that, being denied manga through official channels, those fans should be driven by their passion to find other ways to obtain the latest productions of the art form they loved so much.

Of course, the WIPO article is silent on this massive failure by the publishers; instead, it falls back on the tired old rhetoric that piracy is "killing" manga:

Rampant manga piracy is making it increasingly difficult for manga artists (mangaka) to earn a living from their work. Many rely on royalty payments to survive. These are modest at the best of times, especially for new artists, and are generally insufficient for most to make ends meet. Of Japan’s estimated 3,000 professional mangaka, only around 10 percent earn enough to be able to devote all of their time and energy to their art. The simple truth is that if manga artists cannot earn a living from their art, there will be no manga.

The simple truth is that manga artists could have earned much more from their art had manga publishers not been too lazy to consider changing their old business models, and had started selling international customers online products they were clearly desperate to buy.

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Filed Under: demand, manga, publishers, wipo