Wednesday, January 30, 2013

Criminalization of Unauthorized Downloading

One news from Japan that surprised foreign technology lawyers was that Japan criminalized unauthorized downloading by individual users.

Recently, Japanese copyright law is becoming stricter and stricter. The illustrative issue is a strong measure for unauthorized downloading.  Before 2010, only those who uploaded the copyrighted materials were infringing copyrights (subject to both civil and criminal liability). This means that it was not illegal just to download such unauthorized materials for private usage.

Reflecting the decrease of sales of CDs and DVDs, there is strong lobbying to prevent unauthorized downloading.  As a result, in 2010, unauthorized downloading was "illegalized." But at that time, downloaders only faced civil liability, not criminal liability.

However, on October 1st 2012, the amended Copyright Act was enacted, which mainly criminalizes unauthorized downloading.

One thing to note is that not every kind of downloading is criminalized. The five prongs for the crime of unauthorized downloading are:(1) knowingly conducted (in contrast to "negligently")(2) digital recording (in contrast to mere "streaming") of (3) recorded works (in contrast to "mere text or picture") (4) which are provided to the public for value (in contrast to "provided for free") and (5) are automatically transmitted to the public infringing copyright (i.e., illegally uploaded to the Internet).

Prong 1 means that negligence (or even gross negligence) is not sufficient to establish criminalization.

Prong 2 means that watching 'Japanimation' with fansabs through Youtube or other streaming sites is not likely to be criminalized.  (You don't have to be worried about caching under the interpretation of the Japanese government.

Prong 3 means that the unauthorized downloading of comics or novels is not likely to be criminalized.

Prong 4 means that they criminalize only the downloading of unauthorized works which compete with CD, DVD, or commercial downloading services (like iTunes). Downloading TV shows, in general, is not criminalized (because they can be viewed for free in general).

Prong 5 means that receiving copyrighted work through email attachments is not criminalized.

Further, according to Article 123 Section 1, the crime of unauthorized downloading is an offense subject to prosecution only on complaint from the victim (rights holder). See the possible effect of TPP on complaint requirement in my another blog article: "TPP's Effect on the Fanzine Environment"

There might be some arguments on the criminalization of unauthorized downloading. Some may see this to be narrowly tailored to respect the freedom of the Internet considering the above restraints. Others criticize the sudden introduction, saying that the government did not show the change in circumstances in the last two years which necessitates criminalization (i.e., the government did not show any empirical evidence that
illegalization was not enough).

I believe that the evaluation of the criminalization depends largely on how it is enforced by the police and prosecutors. Until now, there has been no case. The first criminal case of unauthorized downloading would be a
good touchstone to evaluate the newly enacted amendment.

DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.

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