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Notes from the coffee mill...

May 2001

Copyright: What is it?

Spring has finally sprung and it's time to come out of hibernation. This time in the editorials we're going to look at the copyright issue. Over the past couple of months, we've received a few e-mails regarding fansub legality. Many people are of the belief that fansubs are a legal gray area if not this side of legal. Afterall, the titles being released by fansubbers are titles which are not commercially available in North America, nor are they available in English. However, this simply is not the case. The legality or rather illegality of fansubs has to do with the unauthorised distribution of another person's work without permission to do so.

So, what sort of thing is subject to copyright? Any original work by an individual which is set into a medium (paper, film, etc.) can be subject. If you write an original poem on some paper (or toilet paper for that matter), or draw an original cartoon character, these are your brainchildren and are subject to copyright.

Copyright law, as set out in the Berne Convention for the Protection of Literary and Artistic Works as signed in Berne, Switzerland on Sept. 9, 1886, recognises a creator's rights to decide the manner in which their work is treated. As an international agreement and the primary treaty governing the World Intellectual Property Organisation (WIPO - a sub-section of the United Nations), the Berne Convention outlines how a person may or may not use a creator's brainchild without the creator's permission. 175 nations are members states of WIPO and, as members, the nations recognise that the creator has the right to determine the treatment of their work regardless of the country in which it was created. Thus while an anime video is produced in Japan, the other 174 nations of WIPO recognise the creator's rights to determine copy, translation, broadcast, distribution etc., of their work. Also, when a production company obtains permissions and creates an authorised translated version of a video, the Berne Agreement then recognises the production company's right to determine copy and distribution of their translated version of the video in their own country.

So when production companies release anime titles for distribution in North America, the translation production company (licensee) and the original production company (licensor) sign an international licensing agreement which outlines the materials which the licensee has rights to. Because these agreements can cost in the million dollar plus range, depending on how much a video is expected to sell, the cost of the actual agreement, translation production costs, profit margin, etc., all add up to determine the overall costs of a given title. Regardless of what you might think of a company making a profit from distributing anime, there is one major important factor regarding buying licensed titles (other than the legal one that is). And that is, it puts money back in the pockets of the original production companies such that they can make more anime. At the same time, by making money at bringing over titles, domestic production companies can then bring over more titles for fans to enjoy. On the other hand, fansubbers don't pay licensing fees and could potentially put nothing back into the industry. (Bootleg copies of course simply put nothing back into the industry).

The distribution of fansubs have been happening for quite some time now in North America. There are a number of issues in using fansubs as mentioned in the Sub vs Dub vs Original essay. These days, the delay time between Japanese video release and North American release has been dropping such that fansubs really aren't necessary as a means of obtaining one's anime. The one advantage I will definitely give fansubs is that it does allow people to decide for themselves whether they are truly interested in a title in a cheap manner before commiting to buying a title. Likewise, it may create interest in a new title before it is actually brought over to the English market. However, there is an honour system involved with fansubs; if a person enjoys the video, then they are to purchase a licensed copy when it becomes available, or if they don't enjoy the video, they are to destroy the copy. Of course, renting videos from the local video store of domestically available anime is an even cheaper option still to determine if one is truly interested in a title. More recently however, a number of titles' first episodes for Manga Entertainment are available on the web through their Sputnik7 site. And there are more and more titles appearing on the various cartoon stations in both Canada and the USA.

So, why are fansubs so cheap other than because they don't pay licensing fees? Well, one of the requirements for showing damages due to unauthorised copy includes an estimate of how much profit was made by the fansubber by selling the videos. Given that they are honour bound to charge at cost, the net profit should be zero. Since the profits are nil, you can't really claim that the fansubber is profiting monetarily from their activities per se. A bit of a loophole(?) if you will. However, if fansubbers maintain proper accounting books and has a full list of the buyers, the company could come up with a figure for lost revenues (damages).

Another item which many anime fans are aware of are bootleg audio CDs. Identifiable due to the poorer quality cover illustrations which may show haziness around the edges (especially around kanji characters in the song lists), these are CDs which are extremely cheap but unlicensed and as such give no money to the original production company.

Are there any instances in which you can use images or clips from a given video without obtaining permissions or paying fees? Well, there is what's called a "Fair Use" clause that allows people to use minor pieces of a creation in order to demonstrate a point. Thus under "fair use" the inclusion of frames from a video to give readers an idea of the animation style or quality with a review would be permissable; the inclusion of the whole anime feature would not.

While I sincerely doubt that fansubs are going to disappear for awhile yet (if at all), I personally don't see much need for them any longer. The delay time between Japanese and North American release can be as short as 1 year if not less for extremely popular titles (sic Ayashi no Ceres). For the truly impatient, you could always go for the original Japanese releases. More and more shops on the 'net offer import videos, or allow for direct importation from Japan. And if you can't afford to purchase the videos new, there are also plenty of used shops out there...

ja ne,

Jane Nagatomi, 2001.05.01

Here's a list of some useful sites to become better acquainted with the copyright issue:

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