Japanese anime and manga copyright reform.

• Published date: 22 December 2016
• Author: Schendl, Emily
• Date: 22 December 2016

In the mid-1990s, Japanese video game company Nintendo took the American toy and game market by storm when it introduced the hand-held video game Pokemon to the United States market. (1) Although some Japanese media had trickled into mainstream United States pop culture before Pokemon, (2) this was part of the beginning of markedly Japanese mass-consumer pop culture in the United States. (3) Previously, Japanese media was usually "westernized" to appeal to American audiences; this westernization caused consumers to be wholly unaware of the cultural source of the media. (4) After Pokemon's introduction, an influx of definably Japanese media entered the United States. Saturday morning was filled with translated versions of Japanese animated shows ("anime"), (5) media mogul Disney entered an agreement with popular anime production company Studio Ghibli to distribute its animated movies, (6) and comic book sections of bookstores were packed with translated Japanese comics ("manga"). (7) This flood of new media became especially popular among elementary and high school students in the mid-1990s. (8) The wide-spread reach of Japanese media has continued to grow and evolve with the passage of time, and the global market is now a significant percentage of Japanese profits on this type of media. (9)

Because of the growing global market, Japan's Ministry of Economy, Trade, and Industry ("METI") has recently enacted a plan to prevent global copyright infringement of anime and manga. (10) METI dubbed this plan the "Manga Anime Guardians Project" ("MAGP"). (11)

In this Note, I will discuss the current copyright law in Japan, how this law relates to other copyright laws internationally, international fan culture, and the effect that METI's project may have on this influential, global part of the market. Finally, I will suggest copyright law reforms to accomplish METI's goal of preventing infringement without sacrificing fan culture.

I. COPYRIGHT LAW IN JAPAN

Japanese copyright law defines a copyrightable work as a "production in which thoughts or sentiments are expressed in a creative way and which falls within the literary, scientific, artistic or musical domain." (12) For example, novels, music, architecture, choreography, and computer programs are all creative endeavors that are covered by the Japanese Copyright Act. (13) Unlike other intellectual property rights, copyright protection vests the moment that the work is created. (14) Because this can be difficult to claim in a legal setting, creators wishing to license their work can register their copyright through the Japanese Government's Agency for Cultural Affairs. (15) Registration is also the only legal way to transfer a copyright from one party to another. (16)

Unlike the United States which requires fixation in some tangible medium before copyright rights vest, (17) copyright rights in Japan exist immediately after the work's creation, even if that creation is not fixed or tangible in nature. (18) In addition, Japanese Copyright Law has a more robust creativity requirement than U.S. Copyright Law--similar to the concept of "novelty" in U.S. Patent Law. (19) In Japan, copyright rights usually last for fifty years following the death of the author (with some exceptions). (20)

Once an author has a valid Japanese copyright, he or she can exclude others from using the copyrighted work in most cases. (21) Japan splits the copyright owner's rights into two categories--moral and economic. (22) Moral rights include the right to make the work public, the right to determine the indication of the author's name, and the right to preserve the integrity of the work. (23) According to Article 59 of the Japanese Copyright Act, "[m]oral rights of the author shall be exclusively personal to him and inalienable." (24) They are non-transferrable and will always belong to the author of the work; the author can never be "erased" even if the copyrighted material was created as a work-for-hire. (25) In contrast, Japanese economic rights from copyright include, among others, the right of reproduction, distribution, translation, public transmission, exhibition, and exploitation of a derivative work. (26) Unlike moral rights, economic rights are transferrable to a new owner after registering the copyright and paying a fee. (27) This system of rights helps to give potential future creators an incentive to put their time, money, and effort into pursuing creative and artistic endeavors whether or not they are creating the work for profit. (28)

II. INTERNATIONAL COPYRIGHT LAW

Just as technology changes and improves, copyright law must change and improve to be able to provide incentives to copyright owners. The internet has introduced new and unpredictable methods of infringement that are difficult to prevent or combat under current copyright law. (29) Much of the difficulty stems from the fact that the internet is an international forum. (30)

Japan is a member of the Berne Convention, an agreement between 168 countries worldwide to comply with certain copyright registration and minimum protection requirements. (31) Members of the convention are required to accept copyrights that vest the moment a covered work is created and cannot require registration to establish a copyright. (32) In addition, the Berne Convention requires the participating countries to offer at least fifty years of copyright protection after the death of the creator. (33) Many countries, including the United States, have protection that lasts longer than this minimum. (34) Japan has thus far neglected to lengthen the term of protection in its copyright laws but has contractually agreed to extend its protection to the same seventy-year period that the United States and several other countries have adopted in some specific cases. (35)

The Berne Convention, and similar agreements, are an attempt to deal with some of the copyright issues that have arisen due to the increase in international sales and internet sharing of copyrighted works. (36) In particular, the internet presents a unique challenge for copyright protection because of the sometimes lengthy chain of participants in an infringement. For example, a copied image may be posted on an external website by a user and subsequently viewed or downloaded by countless others. In these cases, it is often difficult to define who the infringing parties are and what steps are appropriate to take against them, especially when these infringers may come from hundreds of different countries. (37)

The United States and Japan have taken different stances on dealing with these difficult "file sharing" copyright cases. While U.S. copyright holders have started mass "John Doe" lawsuits against file sharing users, Japan has targeted individual infringers. (38) For example, in a 2009 Supreme Court of Japan case, the creator of a file sharing program called "Winny" was found to not be an infringer for providing file-sharing software and found that because he created the program for legitimate legal uses, he did not intend to become an accessory to the crime of copyright infringement. (39) In contrast, in A&M Records, Inc. v. Napster, Inc., the Ninth Circuit in the United States found that Napster, a file-sharing platform, was an infringer who was not using the copyrighted materials under fair use as it facilitated the infringement by allowing the materials to be shared between members of its network. (40) "Winny" and Napster are cases with very similar facts, and yet they came out opposite ways. Though the world is attempting to come together to protect copyright rights through alliances like the Berne Convention, there are still critical differences in countries' views on how to deal with the underlying issues. These differences can give internet infringers the necessary loophole to avoid legal ramifications for their infringement. (41)

III. JAPANESE POP CULTURE, FANDOM, AND THE INTERNET

"Fandom" subculture is a unique phenomenon that began in the United States and United Kingdom after the release of sci-fi cult classics Star Wars and Star Trek (among other television and movie series) in the 1970s. (42) When introduced to pop culture media such as TV shows, movies, or novels, a general consumer will only passively interact with it through reading or watching. (43) Members of the fandom subculture go beyond this passive consumption to make active additions to the media. (44) Works like fan-written stories, fan-drawn pictures, and bulletin board chats are all commonplace. (45)

This subculture traveled to Japan in the form of amateur manga ("doujinshi") and other fan works. (46) Japanese doujin fan culture became so widespread that huge Doujinshi Festivals started (for example, "Comiket," short for "Comic Market"), and stores opened with the purpose of selling manga and doujinshi side by side. (47) These fan-created works, both in the United States and Japan, helped traditionally sidelined members of society--primarily young girls--take media that was not created for them and subvert it to create their own type of culture by molding the work into something that they can relate to. (48) Japanese artists have noticeably turned a "blind eye" to fan "infringements" and in general are supportive of their fans' creativity and enthusiastic response to their works. (49)

Although some Japanese media began to come into the United States in the 1970s and 1980s, it really started to take off in the 1990s following the release of Pokemon. (50) After this fad began, and as the young fans began to grow up, use of the internet became more widespread, and the Japanese and United States fan cultures began to merge. (51) Fan culture is, at its roots, a group mentality where single fans can share their contributions with other fans. (52) With the internet, fans scattered across the globe are able to participate in fan culture without geographic restriction. (53) This has led to multi-national fan activities...