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Fansubs and Licenses – a partial reply to Drm’s take on the issue August 28, 2006

Posted by Lupus in Anime, Ramblings.
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This is a reply to part of Drm’s Fansubs and YOU. This is an unresearched discussion on why using licenses as a basis for when to stop fansubbing is silly. It’s also my selfish indulgence as a law student based on what little I’ve learnt in my Intellectual Property Law course… which I haven’t even finished.

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I hate it when people bring up licensing in fansubbing discussions, not because you shouldn’t respect licenses and their legal implications, but because what is licensed in one region might not be licensed in another. What that means is that if the fansubbers are based in say, Zimbabwe where there are hypothetically no such thing as anime licenses, are they allowed to continue fansubbing even after it’s licensed in the rest of the world?

To be less farfetched, say an anime is licensed only in America. What stops Australian or British fans from subbing the anime, and what stops American fans from downloading these “ethically subbed” anime? (ethical by the standard of the anime being licensed or not) And let’s not go into the legal aspects of international treaties, since most of them aren’t even enforceable unless a nation ractifies it in their own legislations (how many nations agreed to the Berne Convention, and how many actually ractified it? Might be an interesting discussion… if this isn’t an anime blog).

Further problems arise when a fansub group have members living all over the world – the leader lives in a licensed nation and wants to stop, but what about those living in an unlincesed nation? Which nation’s license do you use as the standard for stopping subbing? It’s all very arbitary and useless as a means of judgement.

On the topic of license and legality, did you know it’s illegal to import items that are licensed locally? This is known as parallel importation, and is used to protect local licensees. It doesn’t matter if your import is 100% legal in the originating nation and you’re only using it for personal use blah blah blah, you’re still infringing on the local copyright holder’s license because by not buying their version of the work, you’re taking away from their financial benefit.

Okay, I guess that’s quite enough un-researched rambling from me.

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Comments»

1. omo - August 29, 2006

Some interesting points, but most of it is not relevant.

It’s not so much that importing is illegal or anything like that; generally speaking copyright laws do not govern how an entity might divide, transfer, license, or sub-license what rights are given to it via copyright laws. In other words, it’s all in the contracts and not really on the law books anywhere.

Which is to say, for example, I own the copyright of this comment I am writing up. I could license it to a newspaper to publish it (even implicitly so), but so narrowly that it can only be printed in conjunction of the column that it is a part of that is being published. One could say the newspaper company has rights to my little blurp here, but that’s not the whole story. They wouldn’t be allowed to reprint it in a book, or read it out loud in a video program, unless they met the terms I set forth or otherwise gotten my permission; or they’ve done it in a way in which the law says they could (such as a fair-use defense).

If someone who lives in a different country imports a copy of that issue of the newspaper with my comment on it, he’s merely dealing with the newspaper retailer, who has certain rights, contractually and by law, with the customer and with the newspaper distributor. However, if there’s no “do not export newspaper” clause on the contract binding on the retailer, there’s nothing to say that the newspaper cannot be exported/imported. Unless there’s some other overarching law saying that. That’s why Amazon.co.jp will not sell certain video games to US customers–because they’ve been stipulated so by contract.

That just isn’t the case with anime or even some retailers.

And the same with enforcement of copyrights.

Regarding fansubbers who may reside in several different jurisdictions, that’s always a lurking problem with the internet and working with the internet. There’s no one right answer here, but I personally think it would depend on the language and target audience. If you’re all going to make an English fansub, expect it to circulate mostly in English-speaking nations. If the works is not licensed in the UK, but in somewhere else that is English-speaking, then avoid distribution to those countries. As fansubbers you really shouldn’t worry about legal liabilities anyways–the only thing that can get you in trouble is when you piss off a corporate entity who has the rights to something that you violate and thus can prosecute you.

2. Lupus - August 30, 2006

It’s not so much the legal issue that I’m talking about. I think the point I was trying to make (which after reading the article again, I found I haven’t made at all) was that it is silly to try to be legal/ethical when what you’re doing is inherently illegal. Whether it is unethical or not is open to debate since the definition of ethics vary so much with different people.

I just believe that saying “Oh our stuff is ethical because we withdraw our own torrents when it becomes licensed” is… I don’t have the right word for it, but I think ‘bullshit’ would fit quite well here. Hypocratic might also fit, since basically the subbers are trying to rid themselves of all responsibility after they’ve made their work, when they’ve already done enough for other, less ‘ethical’ people to continue to distribute their fansubs, and they’re not doing enough to make them cease distribution (disclaimers aren’t enough in my opinion, though obviously trying to stop them through their own copyright might not be such a great idea).

About your point on imports – yeah, you can dwell into the fine prints in the contract, but I was making a short generalisation on a certain, specific situation – where a person resides in a state that already has a legal licensee of a work, but he goes and imports a copy of that work from a foreign country, which is a case of infringing on CR of the local licensee. The issue lies not with the exporter’s license, but the license of the nation in which the importer resides, regardless of what avenue the importer’s taking (directly dealing with the publisher in the exporting country or buying through an online shop). The point is actually pretty useless legally though, since it’s impossible to enforce unless you’re importing en-masse and selling your imports in direct competition with the local licensee. I just thought it would be an interesting trivia to throw in there.

About the last point, how is it possible to avoid distribution to certain country? The internet sure has messed up the situation on international jurisdiction mightily.

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4. Ken - January 10, 2008

I think fansubbers think of themselves as more of a revolutionary. Is what they are doing Illegal? Yes. Immoral? Maybe. Wrong? now that I donno. In history, many groups have done illegal and immoral things to accomplish an end and ended up as heroes. Sure the scope is a lot grander and effects more in their cases but at the same time, the base is the same. People are denied any potential of having something and being treated fair about it so a group does something about it. Revolutions happen. the loser of it is the one deemed wrong. The question of ethics must be handled on a person to person basis.


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