Digital dilemma: Japan flirts with overly aggressive online copyright law

Imagine this. While listening to your favorite song, you search the web for the lyrics, copy a few lines, and post them to your social media accounts. You love the song so much, you want to share it with others. It’s harmless fun, right? But would doing so make you a criminal?

According to proposed changes to Japan’s copyright law, the answer would be yes. And, depending on the severity of the infraction, you could be subject to imprisonment for up to two years and a maximum fine of ¥2 million.

Infractions that could land you in hot water range from our example here, sharing song lyrics, to other common activities, such as downloading a photo or taking a screenshot. Of course, more obvious activities such as illegally uploading or downloading music, movies, novels, and software definitely carry penalties.

EXPANDING SCOPE 

The proposed changes, which are being considered by Japan’s Agency for Cultural Affairs (ACA) and were first presented in a bill at a meeting on February 13, are primarily intended to combat the online piracy of works such as manga, given that both manga artists and publishers suffer when these works are pirated.

The loss of revenue that results from such piracy is what first brought the issue to the attention of the administration of Japanese Prime Minister Shinzo Abe, and is why there is such a strong focus on manga.

But as Tatsuhiro Ueno, professor of law at Waseda University, told The ACCJ Journal, some of the timing behind the proposed changes may also have been political. “The Abe administration is wielding great power, especially when it comes to economics and the Intellectual Property Policy Headquarters,” he said, referencing an organization that was established by the Cabinet Secretariat in March 2003 to promote strong intellectual pro­perty policies in Japan. Ueno said that he believes the Abe admi­nistration was trying to do something to remedy the adverse impact that manga piracy has on the Japanese economy.

In principle, the changes seemed to be motivated by good intentions: simply, the ACA wants creators and publishers to be paid for the content they put on the market. If so-called “leech websites” are offering internet users access to pirated content for free, that means money is coming out of the pockets of those content producers.

STRICT AND STIFLING 

The devil, however, lies in the details—that is, the imple­mentation and reach of the proposed changes. Currently, uploading any kind of copyrighted material without the permission of the rights holder is illegal in Japan. But when it comes to downloading, only downloading video or music is illegal. According to the proposed changes, downloading many more kinds of media—for example, photos, pages from manga or novels, academic theses, and song lyrics—would also be an infraction.

Of central importance to the law is whether a user is aware that copyright infringement has taken place. In the case of something such as a computer program, a novel, or manga, the violation of copyright is quite clear. If you were to download one of those knowingly, you would be breaking the law and would deserve to be punished. But if the new rules go forward as proposed, everyday acts to which internet users are accus­tomed would also become illegal.

For example, if a blogger wanted to post commentary about a manga, he or she might download an image of the manga and include it in their post to more effectively discuss the work. Under the terms that are being proposed, this blogger would be held to the same standards as someone who downloaded images of the manga just to avoid paying for it.

The same strict law would apply to an academic who, while conducting research, needs to download a photograph or another academic’s thesis. Downloading a picture, an illustration, or even an emoji from a private blog or someone’s Twitter feed would be illegal. The law could even extend to taking a screenshot, or to the aforementioned example of sharing song lyrics.

STRONG RESPONSE 

Mayu Terada, associate professor of law at International Christian University in Tokyo, said that the proposed changes go too far. “The bill is intended to make downloading activities on internet pirate sites illegal—the expected bill expands the applicable scope of criminal penalties and civil penalty—but it is too broad as a law, and it would have a great impact on our daily lives. Literally, all kinds of activities that we do on the internet could become criminal acts.”

Ueno takes a more sanguine approach when it comes to the matter of how illegal downloading would be handled under the proposed law.

“To be honest, I think that the change to the copyright law concerning downloading would not have a great effect on regular internet users, because the requirements were to some extent limited—especially regarding criminal penalties,” he explained.

“Additionally, it should be noted that it is basically illegal to copy a copyright-infringing work for private use according to copyright laws around the world. That means that Japan’s copyright law, which allows for the private downloading of copyrighted works other than movies and music, is rather special from a comparative viewpoint.”

Nonetheless, the proposed bill quickly drew the attention of academics and other key figures in the field of copyright law. According to a February 20 report in The Asahi Shimbun newspaper, a group of these experts issued an emergency statement on February 19, requesting that the government decrease the scope of what it considered to be illegal down­loading. A total of 80 experts included their names on the statement. Even six members of the ACA advisory council subcommittee, which had helped to put together the guidelines for the proposed revision to the law, signed their names to the statement.

And they weren’t alone. According to a March 2 article on the industry website Anime News Network, the Japan Cartoonists Association (JCA)—a group of copyright holders who would seem to benefit from a stricter law—released a statement on February 27 requesting that “due deliberation be undertaken to ensure that the expansion [of copyright law] does not impede civil rights such as research and freedom of expression.”

In their statement, the JCA acknowledged that the revision to Japan’s copyright law was directed at “leech sites,” but suggested the plan could be improved in several ways.

It should address the uploading and sharing of manga with no alterations of content, the group said, because manga fans often create new images based on existing ones. These derivatives are then posted on internet forums and in social media, without the intention of violating the rights of the original creator or copyright holder. It should also focus on cases where the profits of copyright holders are being negatively affected, and should consider whether the person is a repeat offender.

Around the same time that the proposed revisions were first announced, a number of manga artists themselves took to social media to voice concerns that the terms of the proposed changes were far too general, and that common activities in which fans engage—such as the creation of memes—would be deemed illegal.

Fans often create their own versions of their favorite manga.

PARALLEL PLAN

Somewhat similar issues are being debated as part of the European Union (EU) Directive on Copyright in the Digital Single Market. Two sections of the directive, namely Articles 11 and 13, have raised the greatest concerns among politicians, media companies, and internet users in the EU. Article 11, known unofficially as the “link tax,” would require news aggregator sites such as Google News to pay publishers in order to use brief excerpts of their stories. Meanwhile, Article 13, which has been nicknamed the “meme ban,” would require sites such as YouTube, Twitter, and Facebook, which host a great deal of user-generated content, to take responsibility for removing any items that infringes copyright. The directive will be up for a final vote in a plenary session of the European Parliament that is scheduled to be held between late March and mid-April.

The directive has been criticized for being too vague and sweeping in its powers, and has inspired a strong resistance movement throughout Europe.

Ueno, for his part, does not see any connections between the proposed changes to Japan’s copyright law and the EU directive. He acknowledges, however, that there has been a similarly strong backlash against both proposed changes.

RESET BUTTON

Following disapproval from many corners, Japan’s ruling Liberal Democratic Party (LDP) made the decision on March 13 to postpone a vote on the bill. The decision was reached during a meeting between the LDP’s Research Commission on Intellectual Property Strategy and the Ministry of Education, Culture, Sports, Science and Technology.

As quoted in The Asahi Shimbun regarding the post­ponement, Masaaki Akaike, director of the LDP’s Education, Culture, Sports, Science and Technology Division, said: “We haven’t reached a stage where worries and concerns of both copyright holders, such as manga artists, and general internet users have been removed. Worries led to more worries, leading to a vicious circle.”

From Ueno’s point of view, calling off a vote may not have been the best move, given that many aspects of the proposed changes were not too controversial. “The proposed bill con­tained not only the issue of downloading, but also included so-called leech sites and other topics. Aside from the topic of downloading, the other issues were broadly accepted; so it was not a good idea to postpone the bill entirely,” he said. “It seems that Prime Minister Abe was worried about the [bill’s] influence on the next election, because internet users were concerned about the amendment. However, I believe that many of them did not accurately understand the bill.”

As Ueno argued, when it comes to the topic of downloading, the ACA’s hand may have been forced. “The issue came up suddenly last October at the Agency for Cultural Affairs for a political reason. The agency was very reluctant to deal with it, but could not avoid it, and they are now being severely criticized. So, I have to admit that I feel bad for the agency, even though they should have taken more time to examine the issue of downloading.”

LESSON LEARNED? 

So, what comes next? A revised bill could be put forth as early as the next extraordinary Diet session later this year. As Akaike said, “We should make a fresh start and aim for the next Diet session while carefully proceeding to ease the concerns of the public.”

Although it is likely that the government bodies that will be deliberating on the proposed changes to the law will have been chastened by the strong negative response, Terada is not entirely sure that they will have learned their lesson. “The proposed bill is reported to have been sent back to the Agency for Cultural Affairs, which means that the bill could be submitted to the Diet using similar language, so this is something we are very worried about.”

As a researcher, Ueno expressed concern about the bill in its current state and recommended specific provisions for researchers. “If private downloading would be illegal, it would affect the activity of all researchers, including me. So, a provision on copyright exemption for researcher’s who download copyrighted work for research or study should be introduced.”

With the postponement of a bill that could affect the online behavior of millions of its citizens, the Japanese government has a great opportunity to establish itself as both a protector of intellectual property and a defender of free expression. Here’s hoping they make a wise choice when the issue once again comes up for debate.

Custom Media publishes The ACCJ Journal for the American Chamber of Commerce in Japan.

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