Online Translation - Dealing with Copyright and Plagiarism Issues Part II - A Legal View
In Part I, we introduce you to the basic concept of copyright infringement and plagiarism, and how they apply to translating contents on the internet. For Part II, we contacted Ronnor from the Japanese law blog called Ahowota Law Student News. Ronnar has expressed his own view on the matter, below is a translation of Ronnor's article (translated with Ronnor's approval, of course!):
Unauthorized Translation and Copyright Law
1. Background information on the problem
Like the Japanese - no, even more than the Japanese - overseas otaku want to know the latest information about Japan's anime and manga. As a comparatively recent example, the problem of Rozen Maiden's hiatus was given headline treatment on an overseas site (*1). However, unless the work is in the The Melancholy of Haruhi Suzumiya (*2) class, with plans for world-wide development, the original publishers hardly ever give English press releases. Information is transmitted only in Japanese, a minority language in the global scheme.
This is rather troublesome for foreign otaku who want the latest news from Japan. For this reason, it often happens that information from Japanese sites is translated, then posted on foreign sites.
For a certain section of sites, such as COMIPress (at least recently), the translation and subsequent posting is carried out with the consent of the copyright holders from the original Japanese site. In these cases, there is no problem whatsoever.
However, quite a few sites engage in unauthorized translation. By which I mean they translate Japanese sites made by publishing companies or fans, without permission, then post the translated contents on foreign sites. Of course, while some sites are translated in whole, only parts of others are translated, and where one site posts only translations, others have comments and editorials after the translations. I will collectively call these "unauthorized translation", and would like to examine the problem from the viewpoint of copyright law.
*A note: As this account was not written by a practicing lawyer, but was pieced together by a law student using books and magazines for information, I am unable to ensure the reliability of the contents. For individual, real-life problems, I would ask that you consult a legal specialist.
2. Which country's laws apply?
(1) Establishing case
Let's think about this example.
(2) Copyright Infringement.
In this case, the first problem is whether the act of "translating into English an article of which Person B in Japan is the copyright holder under American national law" violated the translation rights (see copyright law article 27) or not.
There is very little to question here. As the article in question (that of Person B in Japan) is protected by American copyright law, Person A (who resides in America, one of the concluding parties of the Berne Convention (*3) ) will run afoul of violation of translation or adaptation(*4).
(3) Infringement of Public Broadcasting Rights, etc.
Since the information has been stored on a server located in America, and it is possible to broadcast that information via this server, the question becomes one of whether this is a violation of duplication rights and/or public broadcasting rights (see copyright law Article 23).
There is a big problem in this situation. At this point, we are faced with two sharply opposing schools of thought: the opinion that the copyright law of the transmitting area (in this case, America, where Person A is) should be applied is known as the Transmitting Location Principle, whereas the opinion that the copyright laws of the receiving areas (in this case, Person C's America and Person D's Japan) should be applied is known as the Receiving Location Principle. (*5)
The Receiving Location Principle has the merits of having real-world national private law interpretation and consistency. On this point, it is established that average illegal acts are, as a rule, the origin of damaging effects (see text of general law Article 17 for information about legal application (*6) ). If this real-world way of thinking is applied as-is to the world of cyberspace, it makes the origin of damaging effects -- in other words, the transmitter -- the area of illegal action (*7). However, if one takes the receiving location principle on the internet, no one knows which country's people are receiving, so as long as copyright law varies by country, there is an atrophying effect on the transmitter's grasp of what is allowed (*8).
In contrast, while the transmitting location principle doesn't have regulatory problems in the area stated above, it makes it impossible to regulate copyright infringement in transmissions originating from countries where copyright protection is lax, the so-called "copyright heavens" (*9).
Here, on page 43 of "Internet Legal Problems", a method of conquering both of the aforementioned problems is proposed, taking the Receiving Location Principle as its basis. Not every receiving area's application of law has to be admitted; in the case of damage having occurred in several countries, the area which sustained the most severe consequences is taken to be the consequential point of origin, and that area's copyright law is applied. According to this theory, if we take the example of someone "having scattered someone else's copyrighted Japanese-language work across the internet", as long as native speakers of Japanese are concentrated in Japan (and not in another nation), then Japanese copyright law would be applied. I too think this theory the most adequate.
According to this theory, in the case of English-language content, exactly how many people in which country looked at the site would probably become a point of reference. It is a fact that there are vast differences between sites; however, as there are practically no research documents on foreign copyright law (other than that of America) in Japan, and as English language-bloc access to our site is the second largest source, with the American sector far and away larger than any of the others(*10), I have taken American copyright law as an example in order to examine the following.
3. Possibility of Justification via "Fair Use" etc.
"Fair Use" is one of the defenses admitted by American copyright law in cases of copyright violation litigation. Even if an action looks like a violation of copyright, if it can be proved fair use, use may be continued without the permission or consideration of the copyright holder (*11). Fair use exists as a reasonable regulation of opposing concerns (*12). Say a certain work is pieced together based on elements of a previous work, so that it can be said that the work does not exist completely independently from that previous work. (This principle especially suits the examples laid out in Article 107, of "criticism, comment, news reporting and teaching"). Because of desires such as these -- wanting to use works freely, apart from the restrictions of copyright holders, for the benefit of society -- another person's use of a work under copyright is admitted, within its "proper sphere".
As Article 107 of American copyright law indicates four points which should be taken into consideration when determining whether or not something is fair use, I will examine these four points in order, synthesizing them all at the end, and discuss what to watch out for if you are putting together an unauthorized translation site.
(1) The purpose and character of use
Whether the use is of commercial character or of non-profit educational character is a very important point of reference (*13). Meaning, if a site which has carried out unauthorized translation or presentation is non-profit, the incidence of proven fair use is probably comparatively high. Which isn't to say that a use is fair use just by dint of its being non-profit (*14).
The specified uses of criticism, comment, news reporting, teaching, scholarship and research are, in general, thought of as benefiting society, and can at the very least be thought of as fairer than purely commercial uses (*15).
The news sites seen so often on the Internet (*16) donate information in the form of article links, translations, and comments to those people throughout the world who want that information; they are proper explanatory media, created in answer to news throughout the world. On that point, we should widely accept them as being in the same category as news reports.
Still, some sites conduct unauthorized translation for profit, which is extremely dangerous. This is because such usage is held unjust by copyright law stipulations (*17), and, while this isn't to say there is absolutely no room to admit fair use, there is a heightened possibility that they will be seen as markedly more illegal than non-profit news sites.
(2) The nature of the copyrighted work
Even among non-profit uses, the use of a work of an informational nature is more likely to be considered fair use than that of a work of an entertaining nature (*18). Works which are not given wide public distribution (such as current transmission briefs with limited distribution) have relatively tighter restrictions compared to works of which large numbers are distributed (such as newspapers) (*19). The point that the demand for a current transmission brief will decrease if a large number of copies are made of it is taken into consideration. This means that, conversely, the parameters for fair use in unauthorized translation and/or re-posting of articles which have public transmission as their aim should be wider than that of news releases presented by anyone.
(3) Elements of Amount and Substantiality
While there is no general rule, restrictions based on the conventional legal principle of fair use are not applied to use of a full work (*20). If one part of another work is present, the amount used and its substantiality must be looked into. In the inspection of substantiality, the use of an important part of a work or its framework (even a comparatively small amount) becomes a big point of denial for the allowance of fair use (*21).
On that point, as a rule, translating and re-posting an article in its entirety will most likely be unjustifiable as fair use. Even excerpts and summaries, if they are "by substance, the entirety", will not be admissible as fair use (*22).
(4) Effect of Use
In current courts of law, the effect of use is given the heaviest weight. The question is whether the method of use has an effect on the used work's latent market and value (*23). For example, if a detailed outline (which includes spoilers) of a Japanese light novel is posted in English on the internet, and that light novel then has an English edition published, there is a possibility that it won't sell well (*24). This sort of thing, the effect on a latent market, is a critical element of consideration.
At this point, a balanced perspective (*25) on both public benefit in a justified case and the copyright holder's individual profit in an unjustified case becomes important. Also, if, due to the use of a certain work, a work which fills the same needs as that work (see the previously mentioned "outline" example) is created, a court of law will not admit that use as fair use (*26). In exchange, if, due to the use of a certain work, a different work which does not compete with the original is created, so long as that work does not have an adverse effect on the latent market or the value of the work used, it may be admitted as fair use (*27).
(5) A guide to making your unauthorized translation fair use.
A. Non-profit aim
First off, if you are doing unauthorized translation, it becomes fairly important that your site is non-profit. If it is a commercial site, even if doing something for free is considered fair use, doing it for commercial purposes is often not allowed. If you are running a commercial site, I strongly recommend that you get the permission of the copyright holder.
B. Avoid translating full works
Next, even if it is non-profit, it is important to avoid translating an entire work. Even if your aim is criticism or review, almost no criticism or review needs a translation of the full work in order to fulfill its objective, so translation and/or re-posting of a full work is almost never admitted as fair use. If you want to translate the entire work, I strongly recommend that you obtain the permission of the copyright holder.
C. Clearly indicate origin
Again, this is not to say that stating the origin clearly will, in itself, make any use fair; still, it is one element that will aid in decision (*28), and you should clearly indicate the origin.
D. Sites which simply translate and re-post, without even comments
Try turning this into a sort of premise. First, if a site does not post comments but simply translates and re-posts, whether those postings meet the standards of "news reporting" and so can be called fair use becomes the issue. To begin with, news reporting is not simply "taking works by others and publishing them"; it involves other intellectual work, such as editing, summarizing and asserting, and we can say that this raises its social value. The example cited as fair use states, "with respect to news reporting, that which puts speeches in writing, and summaries of articles using excerpts sparingly (*29)"; if we consider this bold-faced part, there is very little room for simple translation and re-posting to become fair use.
In addition, when you think of the effect of use, translating and re-posting the contents of limited access or paid access sites also has a low chance of being counted as fair use.
E. Sites which post comments and criticism with the translated articles
As far as this is concerned, since the site has added comments, criticism, commentaries, reviews, etc. to the translated and re-posted parts, the formerly stated intellectual work (editing, summarizing, asserting) is included; the societal value goes up, and the leeway for it to become fair use expands. In particular, if you think of the most important deciding element (that of effect of use), for sites which, while they want as many people as possible to know this information for free, must release it only in Japanese due to problems of cost and such -- If their site is translated, their work's market and profit, as regards the English-speaking world, isn't going to suffer by it. On the contrary, by its being translated, they will profit by having their work become available to many more people; even if the translation is unauthorized, some will be happy to have had it done, period.
My apologies for the use of such a mundane example, but my article: "Ahowota Law Student News - Hiatus of star serials and fallacy ~ A legal examination of the Rozen Maiden hiatus problem" was translated into Spanish without permission as: "AniMangaWeb.com - ??Podr??a denunciarse legalmente la suspensi??n del manga Rozen Maiden?" However, as far as I'm concerned, since this made it possible for people who didn't speak Japanese to understand the article, I didn't think, even for a second, "This is a copyright violation, and I'm gonna sue!". On the contrary, I sent them a "thank you very, very much" note that same day.
Mine is only one example. Still, although much unauthorized translating is done, I found very few incidents of the copyright holders calling "copyright violation" and taking legal action. That fact can be thought of as a result of this lowness of the possibility of damage to the latent market being weighed heavily. On that point, we can probably say that in the case of "taking excerpts from an article that a Japanese anime fan has released for free, then translating them, explaining them and adding comments" can be widely counted as fair use, even if the translation was unauthorized. In contrast, the profit for a formal site in not doing unauthorized translation -- in order to avoid mistranslation, prevent incorrect information from being released to the public, and declare the accuracy of the information -- is higher than it would be for informal sites. Also, when the amount and quality of comments is low, there is the possibility of it not being judged fair use. However, as cases such as "This is a formal site, but since we want many people to know about this, we'll make it available for free...But, due to cost, we'll publish only in Japanese" are not uncommon, it's plausible to think that, depending on the amount and quality of comments, even unauthorized translation has more than enough potential to be fair use.
4. Theory of presumed assent - Essay
*The following is entirely my private view.
As I have set forth in the preceding article, acts such as translating one entire article without permission or using translations without comments are examples of things which will generally not become fair use.
However, as I noted above, if you take my example of my having (or "getting", since I hadn't asked for it) an entire article translated (with practically no comments, yet), and being happy about it, I think we may even be able to allow for the presumed assent of the copyright holder as far as a certain type of unauthorized translation is concerned.
That is to say, if the translations are from sites which (1) only make information available in Japanese, (2) are unofficial fan sites, and (3) aren't violating any copyrights themselves, plus (4) post examinations, reviews and opinions for free, then: (5) As long as sources are listed, (6) the translation is accurate, and (7) there is a clear expression on the part of the site that the translation is unauthorized and that it will be removed immediately if the copyright holder asks that they do so, then even if it's a full-article translation with almost no comments, translation only, or just an introduction (none of which fall within the parameters of fair use) -- Even then, we may be able to justify use within certain parameters by allowing for presumed assent (*30).
First, Condition 1 (only making information available in Japanese) is necessary because, in the event that they have also released information in English (or your target language), there is the possibility that your translation will compete with theirs for their market, and the odds are that you wouldn't get their permission.
Condition 2 (the restriction to unofficial fan sites) is necessary because, for official sites, the demand for "control of information" is exceptionally strong.
Condition 3 (sites which do not engage in copyright violation themselves): Take the case of a site which publishes doujinshi. If this sort of thing is carried out on a large scale, there is a possibility that it will catch the eye of the original copyright holder, and the odds are that the site would not appreciate crowds of people knowing about them.
Condition 4 (sites which post examinations, reviews, opinions, etc. for free) is necessary because, due to their being no-cost, there is a very low danger of market violation, and because examinations, reviews, opinions, etc. can be presumed, due to the nature of their content, to be generally desired to reach the largest possible number of people.
Condition 6 (accuracy of translation) is necessary in order to avoid putting the copyright holder at a disadvantage via misinformation.
Condition 7 (stating that it is unauthorized translation and will be removed immediately at the copyright holder's request) is necessary so that, in the case of mistranslation, the copyright holder does not have to bear responsibility for it, and in order to secure the copyright holder's (minimal, at this point) control of information.
In the event that the above conditions are fulfilled, then, even if you do something not admitted above as fair use, such as translating a full article or posting a translation without comments, it would not be unreasonable for us to understand that it can be justified (*31) through presumed assent by saying it is posted until you get a request from the copyright holder to take it down. In fact, unauthorized translation is growing more and more frequent; as, in response to this, a situation where unauthorized translation is not a big issue as far as copyright violation is concerned is illuminated, it may guide the way to an adequate resolution.
*3: David A. Weinstein's "American Copyright Law" page 356: "On October 31st, 1988, America conducted the legal revisions necessary for it to join the Berne Convention (the Berne Convention Implementation Act of 1988); the revisions went into effect on March 1st, 1989, simultaneously with the formal joining of the Berne Convention."
*4: Okamura and Kondou, "Internet Legal Practice (New Edition)" page 134, "As the Berne Convention" "Took the form of globally unified private law," "Between the countries which joined the convention, in order that the conditions established by national law not interfere with the convention as object, national law is bypassed, and general private national law (namely, copyright law) is applied directly."
*5: TMI General Law Offices "Legal Consultation on Copyright" page 199, then the same page says "In order to avoid needless suits, at this point in time, we must follow the Receiving Location Principle." While this may be the "correct answer" from the point of view of a lawyer advising a client against legal risk, we are probably not meant to interpret this as claiming "we should follow the Receiving Location Principle in trials as well."
*6:???Koide Kunio ed., "Question and Answer: New National Private Law", page 99 onwards.
*7: See Dogauchi Masato, "Cyberspace and National Law", jurist number 1117, page 63
*8: See Saka Fumio, "Detailed Interpretation of Copyright Law", page 667
*9: See Saka Fumio, "Detailed Interpretation of Copyright Law", page 666
*10: As the main contents of this site are in Japanese, this is a bit weak as evidence.
*11: David A. Weinstein, "American Copyright Law", page 85 onwards
*12: Previous entry, page 86
*13: Previous entry, page 89
*14: On page 89 of the previous entry, copying a large amount of movies for educational purposes is given as an illustration.
*15: Previous entry, page 90
*16: The definitions are all over the map, and the actual circumstances also vary widely, but as a blanket statement:
*17: Previous entry, page 91
*18: Previous entry, page 94
*19: Previous entry, page 94
*20: Previous entry, page 96
*21: Previous entry, page 96
*22: Note that, according to page 96 of the previous entry, "If fifty percent of a certain book is copied to the letter, in the case that that ratio substantially approximates the substance of the entire book, it will not be admitted as fair use."
*23: Previous entry, page 96
*24: Of course, I think the influence would vary depending on exactly how detailed a summary it was, but still...
*25: Previous entry, page 97
*26: Previous entry, page 98
*27: Previous entry, page 99
*28: Previous entry, page 96
*29: Previous entry, page 99
*30: Taking translating this site as the representative example
*31: On this point, if it is fair use, whether the translator may continue to keep the article posted even when requested to withdraw it varies widely.