TPP's Effect on the Fanzine Environment

In Japan, like many other countries, infringement of copyright not only yields a result of civil liability, but also criminal liability. The most basic act is to reproduce a copyrighted product without a license (Article119(1) of Copyright Law of Japan) which would result in the maximum penalty of a ten year imprisonment and a ten million yen (about one hundred thousand dollars) fine.

However, there is one important trait of the Japanese crime of copyright infringement. Prosecution is possible only after the rights holder has filed a complaint to the police or the prosecutor (See Article 123(1)).

Article 123. (1) In the case of offences under Article 119, Article 120bis, items (iii) and (iv), Article 121bis and paragraph (1) of the proceding Article, the prosecution shall take place only upon the complaint of the injured person.

One of the results of the requirement of complaint is the popularity of fanzines or doujinshi in Japan. There is a big festival of fanzines called Comic Market (or Comiket) where more than 500 thousand people gather and exchange fanzines mostly based on Japanese animations, manga (cartoons) and games.

With some exceptions, most of such fanzines copy the pictures of the characters of the original copyrighted works and such acts are technically a "reproduction" of copyrighted works without a license. However, the stance of many publishers and other rights holders is that they basically fail to react, unless a particular fanzine causes a serious problem. One reason is that most of the producers of the fanzines are individual fans of the original works and rights holders do not want to offend the fans.  Another reason is that fanzines may work as an advertisement of the  original works. Further, because of its long history, Comiket now works
as a "funnel" to recruit young artists. Of the many fanzines created, some are exceptionally good and outstanding and the creators of such fanzines may become the next generation of manga artists. 

As a result, until now, publishers have reacted against fanzines only few times such as when the fanzine of "the final episode of Doraemon" became so popular that many people confused it with the official final episode.

In this ecosystem, the requirement of a complaint in the copyright law works as a mechanism to respect the intention of the rights holder on whether or not they want to intervene. Although the complaint requirement is only the prerequisite for prosecution, in practice, it is rare for the police to commence an investigation without a complaint by the rights holder.

However, this situation may change. The draft of the request of the US on Trans Pacific Partnership (TPP) 15.5(g) stipulates, "its authorities may initiate legal action ex officio with respect to the offenses described in this Chapter, without the need for a formal complaint by a private party or rights holder." To comply with this, the Japanese government may have to eliminate Article 123(1) from its copyright law.

It is not clear whether Japan will join TPP. Also, it is not clear how the law enforcement would react with the elimination of the complaint requirement. But it is at least noteworthy that this created a controversy in Japan and some opponents to the elimination of the complaint requirement express a strong concern toward the chilling effect on creativity and advocate strongly against TPP.

Feb 27, 2013: I came up with an interesting article by Professor William Fisher titled "The Implications for Law of User Innovation," which deals in part with fan fictions.

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.