All our base are belong to (the) US? -TPP from a Japanese perspective-

This is a guest post by Rio (Twitter:@ld4jp), an intern at Julia’s office.

An agreement was reached on TPP, the Trans-Pacific Partnership, on the 5th of October 2015. The negotiation process of 5 years was entirely undertaken behind closed doors, and during the process Wikileaks had been the primary source for people to get to know the ongoing discussion, as official documents were barely released.

(CC BY 2.0) 2013 DonkeyHotey Stop TPP - Total Peasant Pacification

Before a deal was reached on TPP, a considerable amount of civil society representatives had taken action to raise more awareness for TPP’s potential impacts on Japanese law and Japan’s economy. Most of them are coming from the agricultural sector, but there were some civil rights activists who sought to protect Internet users’ rights over the copyright rules. Japanese digital rights organisations such as MIAU, Creative Commons Japan, thinkC, and thinkTPPIP are examples of campaigners who initiated campaigns opposing TPP copyright provisions. In spite of their efforts, 3 provisions they opposed were in the end included in the final text.

One uniquely Japanese aspect of the protests is that Japanese online activities are highly affiliated with ‘Otaku‘ (Japanese anime-manga fandom) culture, therefore the main arguments are focused on the danger of destroying their culture and activities. Below is a list of articles of TPP copyright provisions threatening the rights of Internet users in Japan that the activists have voiced concerns over.

Expansion of Copyright Terms: Prolonged term until works accessible to everyone

Article QQ.G.6 in the TPP extract leaked to Wikileaks calls for an extended copyright term of 70 years after the author’s death instead of the 50 years currently. Kensaku Fukui, a Japanese copyright law expert, warns that the extension of the term will expand the trade deficit of Japanese intellectual property (IP) industries. Currently, the Japanese annual trade deficit through copyright businesses amounts to over ¥ 600 billion ($50 billion/€44 billion), and roughly 70% of the deficit comes from trade with the US. While already introduced in most of Europe, the term extension makes no sense macro-economically for countries like Japan. Many of the US’s major entertainment products earning royalties abroad originate in the 1920s or 1930s (e.g. Mickey Mouse, Winnie the Pooh, Superman). Japanese entertainment products which are popularly received outside of Japan are on the other hand largely newly produced works (e.g. Pokémon, Dragonball, Sailormoon). The extended copyright term merely protects older works and will therefore keep the position of the Japanese economy in the international IP trades weakened.

Additionally, the term extension endangers one significant source of Japanese cultural prosperity: Many of non-profit research, education and cultural projects will most likely be harmed by this provision. Aozora Bunko, the ‘Open Air Library’, is one example for this. Similar to Project Gutenberg or Europeana, Aozora Bunko collects and distributes thousands of works of Japanese literature whose copyrights have expired. The newly introduced term will stall such projects, as it requires massive amounts of transaction costs to clear copyrights, even when authors passed away several decades ago. Those works which are still protected under copyright but whose rightsholders cannot be determined are known as ‘orphan works‘. The extended copyright term will also likely increase their number, making the national cultural heritage inaccessible. Considering the fact that the copyright law is supposed to strike a balance between incentivising creators and providing for a cultural commons that itself acts as a pool for innovation, the extension is likely to have a negative effect on Japan’s cultural prosperity in the future.

Civil copyright law: Sanctions way beyond the actual damage

Article QQ.H.4 imposes statutory penalties for copyright infringement even if there is no proof of actual damages. Under paragraphs (7) and (8), judicial authorities shall have the authority to award such additional damages as they consider appropriate, having regard to all relevant matters, including the nature of the infringing conduct and the need to deter similar infringements in the future. This would enable highly disproportionate penalties for copyright infringement which are way beyond the actual damage to the rightsholders.

In 2012, prior to TPP, Japan criminalized online copyright infringement in its national law (Not surprisingly, ‘online copyright infringement’ covers our daily online activities such as downloading copyrighted works without explicit permission of rightholders, copying DVDs and CDs and circumventing DRM). The reasoning behind this legislation was to introduce a new Japanese criminal law, which is comparable to US civil copyright law in that both include severe penalties for copyright violations. By introducing criminal sanctions of up to 10 years in prison or up to a ¥10 million ($85,000/€75,000) fine, Japan tried to catch up with US standards which already introduced massive sanctions in civil law of up to $150,000 per infringed work. Due to Article QQ.H.4 of TPP’s IP chapter, Japan will now have US-like penalties not only in criminal law but also in the civil law. Judges are authorised to order pre-established damages or additional damages, users therefore have no way to know how much they will be charged before the lawsuit start.This legal uncertainty and disproportionality will have a huge chilling effect on researchers, IT entrepreneurs and most ordinary Internet users.

Criminal copyright law: Punishment for cosplayers and fan fictions?

The horror show does not end with the civil procedure provisions. Criminal procedure provisions, which allow prosecution of copyright infringement without a formal complaint from the rightsholder, also gravely threaten the fandom communities of anime-manga. Japan’s “otaku” culture, which largely encompasses fan-art culture, has prospered within a legal gray zone. According to current Japanese law, copyright violations can only be criminally punished if the rightsholder files a claim. Cosplay and fan fiction –derivative works that might conflict with law– have rarely been prosecuted by rightsholders under the current regulation, as anime-manga related rightsholders acknowledge the fact that they are successful because fan-generated works are not being taken down. Article QQ.H.7 paragraph 6 (g) will sabotage this win-win relationship between rightsholders and end-users. Removing the need for a rightsholder to get involved, any “competent authority” is enabled to file an complaint. The notion of fair use does not exist in Japan like it does in the US. Therefore, once prosecuted by malicious third parties, you may be charged with a huge amount of sanctions. Even though the text of the trade agreement says a prosecutable copyright violation must be undertaken ‘wilfully and on the commercial scale’, it is yet unclear how the ‘commercial scale’ should be determined. It all depends on the ratification and national transposition process.

Japanese copyright law has become more and more restrictive over the last years. As mentioned previously, in 2012 it experienced a major update – or rather downgrade – which introduced heavy penalties for copyright infringement into criminal law. In addition, an entirely new provision outlawing the circumvention of DRM was enacted. Now, 3 years after entry into force of the copyright revision, TPP is coming. It is coming with an extension of the copyright term, preventing cultural heritage to be accessible for everyone. It is coming with an introduction of statutory penalties which expose Internet users to legal uncertainty and disproportionality. It is coming with criminal prosecution of online activities, even when no complaint has been filed by rightsholders. Last but not least, it is coming with extended ISP liability for uploaded content, potential privacy infringements, and possibly means a severe chilling effect for whistleblowing (although some of the provisions are already present in Japanese national law). In summary, Japanese copyright law after the enactment of TPP could become the ‘most restrictive copyright law in the world’. How can people in Japan, who are said to be one of the most ‘digitally-friendly’ people in the world, accept these unbelievably user-unfriendly copyright provisions? It is time to act! TPP IP must be withdrawn!

To the extent possible under law, the creator has waived all copyright and related or neighboring rights to this work.

Felix Reda

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