Forum - View topicNEWS: Law Journal Article Supports Fansubs
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indrik
 Posts: 365 Location: yonder |
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I think that's one of the interesting aspects of a moral rights debate. Anybody would have to have considerable clout to exercise their moral rights without serious peril to their future earnings, when somebody else decides they're not worth the trouble to work with. It's usually put forward as a way to protect small time creators from being exploited by big companies, but I have yet to see a proposed system that I believe would actually do that.
Yeah, I kind of glossed over that angle because it's kinda ridiculous. But I think the actual moral rights argument, as in the argument as to whether the US needs to implement more explicit moral rights law, is interesting. |
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fighterholic
Posts: 9193 |
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Since when? I just sent one off on Ebay a while ago. |
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Dark Elf Warrior
 Posts: 228 |
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Well said. An anime belongs to the person who created it and they need to get paid for their creation. If they do not get money, they don't make anime. It is because of fansubs and illegal downloading that anime (in the U.S.) is going to hell. |
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Xanas
Posts: 2058 |
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Neither of you actually read the article... did you. Um.. I don't even think you read past the first paragraph or summary about it. |
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krelyan
Posts: 173 Location: Utah |
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Who gets to constitute what's "edited" and "available?" I mean, is the removal of the Pizza Hut logos in Code Geass adequate editing for this hypothetical situation? There's far too many loopholes for this to be even remotely practical.
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la_contessa
Posts: 200 Location: Pennsylvania |
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You know, I almost wrote an article on fansubs when I was in law school, but the law journal I was on doesn't publish students' work, and I was much too busy anyway. Sigh. Perhaps I will write a reply to Mr. Daniels, now that the bar is over.
I think Mr. Daniels has really thought this through, and he has spent a lot of time researching, that is clear--but there are a lot of issues I have with his premise and solution. First, he provides no evidence anywhere in his article that I can find that Japanese media creators even want a solution to Mr. Daniels' so-called "market failure." The closest he gets is pointing out that Hayao Miyazaki refused to license his works to Western companies without retaining complete control. That makes his article look like the wishes of the fans disguised as aid to the authors, which is kind of disingenuous. Second, his proposed solution of legitimizing works which would otherwise be unauthorized derivative works as long as the US release doesn't meet certain criteria would absolutely destroy the value of license agreements. What's the point of an exclusive license if it's not really exclusive? Why would an American company even pay for that? If a series cannot be broadcast in its original form due to government regulations, American companies wouldn't touch it with a ten-foot pole were this rule to be inserted into American copyright law--the companies would have to either keep it off tv or edit, and as soon as they edit, BANG, tons of newly-minted competition with a heckuva price (free). It would be a lose-lose situation for everyone--the companies don't get the licenses that may make them money, the Japanese companies and creators don't get licensing money, and the American fans don't get their series. Third, those are vague standards he has in his proposed rule. I know Mr. Daniels probably tried very hard to craft appropriately phrased legislation, but the standard would have judges parsing through anime episodes screencap by screencap, employing translators, the whole nine yards. Speaking of translation, I'm in complete disagreement with the idea that we can remotely quantify the level of faithfulness of a translation to the original Japanese script. Who will the court find to come into court and say, "Well, this and this would be legit translations of this word, but this other word isn't that good a translation?" Can the other party bring in its own Japanese-speaker to say, "Oh, no, I would translate it that way!" That's not the job of the court at all. I'm in awe of Mr. Daniels' ability to write an article requiring this much attention to detail during his third year of law school, but I must respectfully disagree. Last edited by la_contessa on Thu Jul 31, 2008 11:31 pm; edited 1 time in total |
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Top Gun
 Posts: 4604 |
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That won't be true for long. Bandai took over the license earlier this year, and they're going to be re-releasing it with a brand-new English dub by the Stand-Alone Complex cast. |
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ikillchicken
 Posts: 7272 Location: Vancouver |
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I think people are blowing this vastly out of proportion. To say this supports fansubs isn't really accurate. This supports fansubs in a certain rare situation. Nowadays edits are rare enough that it's hardly a significant issue in the fansub debate.
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Zalis116
Moderator
 Posts: 6874 Location: Kazune City |
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I read/skimmed over this article, and I have to agree with what Justin said a few pages ago. North American companies aren't ruining creative works when the original creator / publishing companies are allowing the changes. As Greg Ayres will be happy to tell you at his panel, 4kids' heinous alterations of One Piece were either approved or suggested by Toei. Yeah the edits sucked, but you can't put all the blame on 4kids, and it doesn't justify fansubbing it. Or at least it doesn't justify legalizing said fansubbing. Besides, groups still find justification to sub OP, despite the departure of 4Kids and the ascendance of Fun's uncut version. So why the need to make it legal? People will still get their OP fix without these proposed laws undermining the whole system.
Despite the assurances of acquaintances to the contrary, I have to wonder how much experience the author has with the broader anime DVD market. After all, the article zeros in on OP and other famously edited anime, and pretty much glosses over the mass of R1 anime (not to make up statistics here, but let's say at least 80%) that've been released on home video with no edits or censorship in the Sailor Moon / DBZ style. These days, even titles like Naruto that do get TV-edited versions on home video get parallel uncut releases. As many have pointed out, the problem is "who's in control?" when deciding what constitutes "edited." There's a segment of the fandom that seems to think all English dubs are like the 90s SM/DBZ dubs, and thus reasons that NA Release = Dubbed = Edited/Censored = Gotta Get The Fansubs. And some think that the mere existence of an English dub (no matter how uncensored or faithful) ruins anime. And even for shows that get released without English dubs, it's "yellow subtitles make me barf and give me eye cancer." Heaven forbid we get subtitles for ARIA that can be read all the time, as opposed to subtitles that can barely be read against blue water and blue skies. As ikillchicken says, severe editing to anime (with no official uncut version available) is so rare that it doesn't even matter. It doesn't make a bit of difference, either. Cases of editing that do occur are prominent because they generally involve mainstream series, but you could also say that they're statistically insignificant. |
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Brians9824
Posts: 281 |
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Like i've mentioned before this article was started before there were un-edited One Piece dvds in existence. I think its pretty clear that what he proposed would only effect a small portion of titles in existence and would not have a serious impact on the anime market. My guess is he glosses over the anime released in un-edited form as he sees no problem with those.
Everyone seems to forget this was a school assignment that he had been working on for a while and not a paper he whipped togethor over the weekend. Also la_contessa you really need to read the article. All he says is if their isnt an unedited form of the show available. They can edit it for TV fine, as long as they release unedited dvds which is already done almost all the time. What he wrote in the article would only effect a tiny portion of anime ever released, but does that make the point any less valid? |
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Rawshark
Posts: 28 |
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Brians9824, just let this blow over and laugh it up with your friend that ANN is reporting on his school paper.
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Brians9824
Posts: 281 |
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Yeah i kinda find it funny too. I mean the entire paper was just an intellecual arguement. Its a glorified legal What if question and people here are acting like he is proposing a law. Or that he's saying it should be legal for fansubs to be made of every anime. |
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Kireek
Posts: 274 |
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Its funny how threads arguing about fansubs get more posts than threads talking about an anime series isnt it.
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halo
Posts: 356 |
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I think a lot of people, myself included, didn't get the gist of what the purpose of his paper was from the ANN article here. Extending fair use laws to cover fansubs is still a horribly flawed idea at best. He could have focused on extending VARA and retooling the DMCA, but it's not my grade on the line here. I do give him credit, it's a fairly well written even if I don't agree with the idea.
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la_contessa
Posts: 200 Location: Pennsylvania |
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Er, I DID read the entire article. The existance of "unedited" DVDs does not make the proposal suddenly not a problem, because of the inherent ambiguities in translation. Let's say a company licenses a big shounen series and has to edit out some blood for TV. Then, when they put it on DVD, they put the blood back in. Okay, fine. BUT, throughout that whole process, if they were to translate one single sentence* in a way that perhaps the majority of translators wouldn't, suddenly the fansub community has at least a potentially valid excuse to start releasing competing fansubs. How do you measure the meaning of something to determine materiality? It works for contract law, where you can balance all the factors and actually measure the percentage of work that was completed, the amount of money the nonbreaching party would be paying, and the value bestowed on the nonbreaching party. But measuring materiality for a translation? With all the nuances of another language? I appreciate how Mr. Daniels tried to pinpoint his definition, but I believe it's inherently impossible to legislate and judicially determine the amount of faithfulness one may legally have to an original work in a translation. Further, yes, you're right that most companies release "unedited" DVDs now. But what if a company doesn't want to? What if it can't afford to? If a company has an exclusive license, it likely has the right to determine what it does and doesn't release. This proposed rule would penalize decisions the companies are within their rights to make under the terms of their contracts--"Oh, you have the RIGHT to edit out the blood, but if you choose not to put it back in on a DVD, all these amateur translators can come in and offer the same product for free, so choose carefully!" Mr. Daniels tries to argue that his proposal would not chill licensing by saying this: "The proposed rule not only forces the dub companies and the creators to take account of the psychic harm their actions might inflict on fans, but also mandates that the dub companies’ entitlements be scrupulously protected where they have accounted for those costs and acted accordingly." First of all, what is "psychic harm?" Second, why do we care about the fans, when his proposal is ostensibly aimed at helping authors? Third, why do the companies have to care? Why should they be threatened with competition they are not supposed to have under an exclusive license just because a fansub group thinks that they mistranslated a sentence? The "cost" of an inaccurate dub is not so high as to justify interfering with the express terms of a contract. It is not the judicial system's job to make sure the fans are happy. And something else I was thinking about: the music licenses for anime are sometimes a separate license, or at least the opening and closing themes can be. If a company doesn't release an "unedited" version and has taken out some blood for TV, fansubbers would have a defense were they to start distributing the series. However, those distributed fansubs would still contain the music that was acquired under a different license and was (in this hypothetical) NOT materially altered. So, the fansubbers would still be infringing the copyright in those songs, even if they have a defense to the distribution of the video and dialogue. And another thing (yes, I thought about this all night--I sit around and think about the law for fun sometimes): how does this affect contracts that are already in force? Those contracts were not negotiated with this possibility in mind, and companies may well have overpaid for a license that can be snatched from them at any time as soon as someone has a valid argument that one sentence is materially altered. There is no fan right to accurately translated anime, which is essentially what Mr. Daniels is attempting to create in the guise of protecting creators. I believe the market as it stands already rewards accuracy and disincentivizes inaccuracy, and that this is an unnecessary change to the existing law that needlessly interferes with express contract terms. *Re-read the proposed rule: "In cases where the adaptation involves the translation of the foreign work into English, the connotative or denotative meaning of any speech or dialog contained within the original work has not been materially altered in the adapted version prepared and distributed by the exclusive licensee." (emphasis added). Yes, "any." One sentence is enough under the terms of the rule. Last edited by la_contessa on Fri Aug 01, 2008 11:23 am; edited 1 time in total |
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