Legality of Fansubs

by George Phillips, Jun 8th 2003
As anyone who has ever tried to read international law knows, copyrights are a tricky thing. Furthermore, there are some differences between the American and Japanese copyright system, which can complicate matters further.

In order to understand the legal status of fansubs, we need to consider the status of the original work in Japan, the fan-translation produced in America, as well as distribution and various other aspects required by the fansub scene in both America and elsewhere.

First, let us look at Japanese Copyright Law:
Japanese Copyright Law


Most broadcasts, and most "videograms" (CDs, DVDs, LDs, video tape, film reels), and most public and private exhibitions are considered "works"¹, and thus are protected by Japanese Copyright Law².

Relevant protections that are granted to authors of the copyright law in Japan include the right to reproduce the work³, the right to transmit the work4, the right to distribute the work or its reproductions5, the right to transfer ownership of the work6, and finally the right of translation7.

Nonetheless, users are entitled to several protections of their own. A user is entitled to make a reproduction for personal use. The only exception to this is if a "machine" is placed in the public for the express purpose of automatically copying the work8.

So what does this mean? This means that the creator of the work has the right to make copies of his or her product, sell them, as well as translate them into any language he or she wishes. Additionally, if the author feels that another person or group might do a better job translating the work, the author has the right to sell it to another group for the purpose of translation and distribution in another country.

Fansub groups inherently violate most of these protections; in order for anyone to download their work, they first translate the title, and then redistribute it to others. While there is no mention of illegalities receiving the file, those who offer the file for download are certainly in violation of Japanese copyright law.

One note of interest is the use of "automatic reproducing machine". No distinction is made between computers and machines, and as such, it may be possible to construe the term "automatic reproducing machine" as the BitTorrent ".torrent" file that enables users to trade the file between one another.

Of course, few of the fansub groups are centered in Japan, and copyright is based heavily on geographic location. If you live in a country that does not respect international Copyright Laws (discussed below), then your country is free to do whatever they wish with respect to copyrights. In other words, without international treaties, groups that operate outside of Japan would not be affected by Japanese copyright. If the translation entered a country that respected Japan's copyrights, however, then the translation would once again fall into Japanese copyright jurisdiction.

One example of this is Son May. Son May is an unlicensed CD company based in Taiwan. Prior to Taiwan's entry into the World Trade Organization in 2001, Taiwanese law allowed companies like Son May to copy products under certain circumstances. They were permitted to copy a product if, and only if, a licensed Taiwanese version had not been released within 30 days of the original, foreign release . Son May utilized this law to copy hundreds of anime CDs and re-sell them cheaply. They were able to do so because they did not need to pay licensing fees. While Son May CDs remained in Taiwan, they were legal to buy and sell, because Taiwanese law permitted it. If there were no International Copyright agreements between countries, then it would be legal to import Son May CDs into the US. However, there are international conventions, which make importing Son May CDs illegal because they are violations of the Japanese company's copyright. Since Taiwan's entry into the WTO, it now respects, by treaty, foreign copyrights.

To put aside the Japanese side of things briefly, let us look at what domestic copyright law has to say about fansubs.

American Copyright Law


The Japanese copyright system is cleaner and more straightforward as to what is permitted by law than the archaic American copyright law.

The same protections afforded to Japanese copyrighted works can be found in America, although are significantly more difficult to locate.

American Copyright protects derivative works9, which includes translations. However, US Copyright law inherently accounts for copyright protections of other countries, when "the work is first published in the United States or in a foreign nation that, on the date of first publication, is a treaty party"10.

The US and Japan have signed numerous treaties, the most important of which is the Berne Convention, although others exist. As such, US Copyright protects Japanese productions, including anime, as well as derivative works from it, such as translations.

American copyright law goes on to state that if a work is first produced in a country that the US government does not recognize via a treaty, within 30 days after the product first enters another country (such as Japan or the US), the product is considered protected. This means that, prior to the WTO, Taiwanese bands who released CDs in America would still have been given copyright protection even though Taiwan may not have respected American copyrights.

This does not mean that Son May CDs were legal according to US copyright. Since the original material for Son May CDs came from Japan, any unlicensed Son May CDs brought into America were violations of the Japanese copyright, which was upheld in America.

The US copyright law makes reference to the Berne Convention, which is one of several international treaties that allow for countries to protect their copyrights in other regions of the world.

As stated above, if no international treaties existed, then copyright law could only be enforced as far as the border's of any given country. Thanks to international treaties, it is possible for Japanese companies to seek copyright protection for bootlegged products in America and elsewhere.

America has one other clause in its copyright law of interest, and that is "Fair Use"11.

In order for a work to be borrowed and still be considered "Fair Use" it must qualify on four counts:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

This means if the copy is created with no intent of profit, and is being done either for educational purposes, or for the purpose of educating another, it may qualify as "Fair Use".

(2) the nature of the copyrighted work;

This means the reason the work is being copied, as well as what type of work it is. Some information may be considered "Trade Secrets" or violations of national security and would certainly not be considered "Fair Use". Additionally, the reason for the duplication influences this; most anime series are created for entertainment, and so copying the series would most likely be for entertainment as well.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

The amount of the work copied is relevant to "Fair Use". There is no fixed percentage for how much of a work may be copied. It is theoretically possible for an entire video to be reproduced and still fall under "Fair Use". Most cases involving "Fair Use" are in Colleges and Universities, where many ideas circulate around and the original owner is lost. As a general rule of thumb, most colleges suggest 10% of a work is considered "Fair Use". As the percent of the original work to what is copied increases, it becomes more difficult to justify as "Fair Use". This would be equal to approximately 3 minutes of a TV episode. If an entire series is considered a single work, then it may be possible to consider 10% of the series (2.6 episodes of a one-season series) under "Fair Use".

(4) the effect of the use upon the potential market for or value of the copyrighted work.

This asks, "If the work is a commercial product, how much harm could come from making a copy?" If the work is distributed a single time, then there is relatively little impact. If thousands of copies are distributed, then the potential market for the series may be affected. Once again, there is no set amount of distribution necessary before the work no longer falls under "Fair Use". However, as distribution increases, it once again becomes more difficult to justify as "Fair Use".

A creation that uses copyrighted material can only be considered "Fair Use" if it meets all four of these requirements. As such, it would need to be a non-profit creation made for educational purposes, totaling perhaps 10% of the total length of the series, and distributed in such a manner such as not to impact the domestic or international markets.

Berne Convention


The Berne Convention is what binds the US and Japanese copyright laws together, although it is not the only treaty to which both are signatories. It enables Japanese companies to persecute people who make unauthorized copies of their works in America and many other countries.

The only notable distinction in the Berne Convention is in Article 2:

"Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work."

This does not mean fansubs are original creations -- instead, this means that the translation found on a fansub may be considered an original creation. The video and the audio remain copyrighted as far as the Berne Convention is concerned. In other words, translations created by groups may be considered independent of the anime they've translated. However, this would be the only original part of the fansub that might possibly be distributable.

Depending on the content of the translation, as well as its accuracy to the original Japanese script, the translation may or may not eventually be considered a unique creation, independent of the anime being translated.

Other Considerations


Commercial companies should, although do not have to, pursue copyright violators after being informed of license violations. This fact is often confused with "Abandonment of Trademark", another legal definition, in which a company loses its trademark for failure to protect it. Anime distribution is a matter of copyrights, not of trademarks. As such, "Abandonment of Trademark" does not apply to fansub groups attempting to claim the legal high-ground over commercial companies who have historically not acted in protecting their products.

In Japan, thousands of "doujinshi circles" produce fan-created manga, gathering twice a year at "Comiket" to sell their products. These creations are not exactly legal, but have only been prosecuted rarely. One of the more recent cases was several years ago, when a doujinshi group produced a pornographic Pokémon fan-manga.

Historical Precedents


Even given all this legal justification, is it possible to say that there is any enforcement? There have been several cases of enforcement, or the apparent effects of fan-subtitled products.

As far back as 1995, the anime industry had formed a coalition against commercialized bootlegging called "J.A.I.L.E.D." (Japanese Animation Industry Legal Enforcement Division) Although much of the industry was behind it, rarely has J.A.I.L.E.D. acted against anyone, in part due to a lack of large-scale for-profit bootlegging. Additionally, J.A.I.L.E.D.'s goals did not include targeting "Fan Activities". As such, it did not act often. Although still technically a presence as late as 2000, J.A.I.L.E.D. was seen as rather ineffective. Credited with only a handful of "busts" and with minimal presence at conventions after 1997, their status is unknown. Traditionally, companies look after their own titles, and accept URLs of violators to pass along to their own legal departments.

In 1997, the Housou Bangumi Kyoukai (Broadcast Producers Association) declared it illegal to provide tapes made from Japanese TV for rental in stores. Several stores, primarily in California, had tapes seized through this action. While minor in terms of enforcement, it was one of the earliest forms of joint Japan-US enforcement that affected fans of anime.12

The first major case of companies directly asking fans not to distribute their product was Rurouni Kenshin. Ryuta Shiiki of Sony Visual Works sent Digital Anime Distribution an e-mail on January 18th, 1999. The e-mail, sent by an employee rather than a Sony lawyer, asked D.A.D. to remove Rurouni Kenshin from their website. D.A.D. simply treated the letter as a notice of license, and removed the series. Media Blasters announced the license to Rurouni Kenshin on October 9th, 1999 at Anime Weekend Atlanta.

At Anime Expo 2000, ADV Films shared an anecdote regarding sales of All Purpose Cultural Cat Girl Nuku Nuku. Popular as a fansub in the mid-90s, when it was licensed it was quickly pulled from fansub trading networks. However, sales of the first two volumes were low, although it was a heavily traded fansub. Surprisingly, however, sales of the final volume were significantly higher than those of the first two volumes. While a number of factors may have played in the difference in sales between the first two volumes and the final volume, teh fact that the third volume had never been fansubbed may have played a part in the significant growth in sales.

Bandai's Jerry Chu has stated as early as Otakon 2000 for fansubbers not to subtitle Gundam, and to "expect to see something happen" for those that do. Since then Bandai has seized illegal Gundam products at conventions, although has not taken any noticeable action against fansub groups that create Gundam fansubs.

On December 6th 2002, "Ghostwriter" of the Production I.G forums wrote asking that fans buy, rather than download their works. "Ghostwriter" is Yoshiki Sakurai, a writer for the Ghost in the Shell TV series.

Conclusion


Legally, there is no difference between "fansubs" and "bootlegs". In the eyes of the law, both could be seen as damaging to the market. Regardless of whether or not a title has been technicaly licensed in North America, it is illegal. Lack of enforsement of copyright laws in terms of unlicensed fansubs maybe the result of several different factors. Some companies may believe that the early introduction of the title to North America is beneficial. Others may simply tolerate a "fan-activity" as long as it does not become too damaging to sales. And yet other companies may not want to or be able to invest the time and money necessary to prosecute foreign violations of their copyright.

In the end, regardless of ethics, or motive, fansubs are technicaly illegal.




Sources



CRIC Japanese Copyright Law
http://www.cric.or.jp/cric_e/clj/clj.html
1: (CRIC, Chapter II, Section 1, Article 10)
2: (CRIC, Chapter I, Section 2, Article 6)
3: (CRIC, Chapter II, Section 3, Subsection 3, Article 21)
4: (CRIC, Chapter II, Section 3, Subsection 3, Article 23)
5: (CRIC, Chapter II, Section 3, Subsection 3, Article 26)
6: (CRIC, Chapter II, Section 3, Subsection 3, Article 26bis)
7: (CRIC, Chapter II, Section 3, Subsection 3, Article 27)
8: (CRIC, Chapter II, Section 3, Subsection 5, Article 30)

Title 17: United States Copyright Law
http://www.loc.gov/copyright/title17/
9: (Title 17, Chapter 1, Section 101)
10: (Title 17, Chapter 1, Section 104(b)(2))
11: (Title 17, Chapter 1, Section 107)

CJAS Newsletter Archives (Fall 1998)
http://www.cjas.org/~echen/articles/fall98/10_17a.html


Further Reading



AvatarHR's Anime Ethics and Legality FAQ
http://members.tripod.com/~AvatarHR/legalfaq.html

The Pirate Anime FAQ
http://www.digital.anime.org.uk/piratefaq.html

J.A.I.L.E.D. (Information and Press Releases)
http://www.tcp.com/~doi/alan/webguide/postings/cons95.expo.1.html
http://law.wustl.edu/Geninfo/Magazine/Sp2001/02_the_latest_1Ls.pdf
http://groups.google.com/groups?selm=JrFhC-R.cenparkmedia%40delphi.com
http://groups.google.com/groups?selm=Rq388hn.cenparkmedia%40delphi.com





Disclaimer: I am not a lawyer. Do not interpret this article as legal advice, or even necessarily the correct interpretation of the law. Laws in your nation may vary. Please consult a real lawyer if you have questions or concerns. I am not responsible for any benefit or harm that comes from use of this article in any way.

bookmark/share with:

this article has been modified since it was originally posted; see change history

back to Fansubs
Feature homepage / archives

Around The Web