In this paper, I will use the genre of doujinshi (or dojinshi) – self-published fan art – to illustrate how culture, creativity, and copyright converge to form a unique system of symbiosis in Japan that benefits both creators of new works and original authors. I will explore how enforcement of the TPP’s provisions would impact the doujinshi community and discuss whether Japan should adopt a Fair Use provision of its own to allow for transformative uses that protect authors while allowing innovation and creativity to flourish.
Original Title
The Trans-Pacific Partnership: a Threat to Japanese Copyright & How Fair Use Can Help
In this paper, I will use the genre of doujinshi (or dojinshi) – self-published fan art – to illustrate how culture, creativity, and copyright converge to form a unique system of symbiosis in Japan that benefits both creators of new works and original authors. I will explore how enforcement of the TPP’s provisions would impact the doujinshi community and discuss whether Japan should adopt a Fair Use provision of its own to allow for transformative uses that protect authors while allowing innovation and creativity to flourish.
In this paper, I will use the genre of doujinshi (or dojinshi) – self-published fan art – to illustrate how culture, creativity, and copyright converge to form a unique system of symbiosis in Japan that benefits both creators of new works and original authors. I will explore how enforcement of the TPP’s provisions would impact the doujinshi community and discuss whether Japan should adopt a Fair Use provision of its own to allow for transformative uses that protect authors while allowing innovation and creativity to flourish.
Advanced Issues in Copyright Law Professor David Nimmer Cardozo Law School Spring 2014
2 In 2013, a draft version of the Intellectual Property chapter of the Trans- Pacific Partnership [TPP] was leaked 1 . The TPP is a secret, multi-national economic trade agreement, encompassing nations representing more than 40 percent of the worlds GDP 2 , including: Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States, and Vietnam 3 . The TPP, specifically the leak of the IP provisions, has caused an uproar in the technology community due to concerns that the IP draft is overbroad and seeks to export what some feel is the worst of the U.S.s copyright regime to other nations. This would presumably have a chilling effect on free speech, due process, an open internet, and innovation 4 . Another point of concern as voiced by the tech policy organization Electronic Frontier Foundation [EFF], is that TPP raises significant concerns about [] the right of sovereign nations to develop policies and laws that best meet their domestic priorities. 5 This issue is most easily understood by examining the copyright laws of Japan and the cultural creations that might be threatened if the strict proposals believed to be part of the TPP are enacted in that country. In this paper, I will use the genre of doujinshi 6 (or dojinshi) self-published fan art to illustrate how culture, creativity, and copyright converge to form a
1 Wikileaks.com. Secret Trans-Pacific Partnership Agreement (TPP) - IP Chapter, at https://wikileaks.org/tpp. 2 Id. 3 Electronic Frontier Foundation. Trans-Pacific Partnership Agreement, at https://www.eff.org/issues/tpp. 4 Id. 5 Id. 6 In this paper, the term doujinshi refers to fan-created works such as manga, literature, games, art, books, animation and erotica. This is a common current use
3 unique system of symbiosis in Japan that benefits both creators of new works and original authors. I will explore how enforcement of the TPPs provisions would impact the doujinshi community and discuss whether Japan should adopt a Fair Use provision of its own to allow for transformative uses that protect authors while allowing innovation and creativity to flourish. To do so, I will examine both the Japanese Copyright Law and the U.S. Copyright Acts Fair Use provision to see whether the latter might be compatible with the formers legislative intent and international obligations. Doujinshi a Japanese Cultural Phenomenon Doujinshi refers to self-published works, typically used in reference to amateur manga (comics), magazines and novels, although it can also include games, art, books, animation and various items of erotica. These works may not have a huge following in the U.S. but in Japan and among enthusiasts around the world it is major business. Recent reports value the genre at 70 billion Yen (about $700 million) and rising 7 . Manga in Japan are like air in that theyre everywhere, totally ubiquitous to Japanese culture 8 and doujinshi play a large part in developing the genre. Understanding doujinshi as a Westerner is probably easiest when analogized
of the term, which originally referred to works, including works other than manga, for distribution within a specific association or society. Mehra, S., Copyright and Comics in Japan: Does Law Explain Why All The Cartoons My Kid Watches Are Japanese Imports? 55 Rutgers L. Rev. 155 (2002-2003) citing Kinsella, S., Japanese Subculture in the 1990s: Otaku and the Amateur Manga Movement, 24 J. Jap. Stud. 289, 295 (1998). 7 Tolentino, J., The doujinshi fanzine industry is worth a lot of money, February 3, 2014. Japanator.com. http://www.japanator.com/the-doujinshi-fanzine-industry-is- worth-a-lot-of-money-31435.phtml. 8 Kinsella, S., Adult Manga: Culture and Power in Contemporary Japanese Society, (2000) London: RoutledgeCurzon.
4 to Star Wars enthusiasts or Trekkies who attend conferences, post to internet message boards, and eagerly await and consume any publication, video game, movie, or other product related to the Star Wars movies or Star Trek series, respectively. Doujinshi is distinguished from its Western counterparts, though, in part due to the vastness of it all. According to reports, there are tens of thousands of doujinshi circles (groups of amateur artists) and Comiket, a biannual manga convention, boasts upwards of 35,000 circles and over 560,000 visitors displaying, selling, and consuming amateur creations 9 . As derivative works, doujinshi undoubtedly crosses the line of copyright infringement in most countries, including Japan, but Japanese copyright holders attitudes toward these unauthorized uses is best described as tacit tolerance, or strategic ignorance. 10 The existence and continued proliferation of doujinshi is a unique and curious phenomenon in which the relationship between doujinshi artists and publishers of licensed works is governed by an unwritten code of ethics. Copyright holders create original works and allow derivatives to be created. In return, doujinshi artists work with an understanding that their art should go beyond mere copying and take a more transformative form. 11 Law professor and author Lawrence Lessig explains this transformative standard in his book Free Culture: A doujinshi comic can thus take a mainstream comic and develop it differently with a different story line. Or the comic can keep the
9 The Anime News Network, Comiket 82 Ties 'Turnstile' Attendance Record at 560,000, Aug. 13, 2012, http://www.animenewsnetwork.com/news/2012-08- 13/comiket-82-ties-turnstile-attendance-record-at-560000. 10 Leonard, S., Progress against the law: Anime and fandom, with the key to the globalization of culture. International J. of Cultural Stud. 281, 287 (2005). 11 Lessig, L., Free Culture: The Nature and Future of Creativity. 2004, London: Penguin.
5 character in character but change its look slightly. There is no formula for what makes the doujinshi sufficiently different. But they must be different if they are to be considered true doujinshi. Indeed, there are committees that review doujinshi for inclusion within shows and reject any copycat comic that is merely a copy. 12
Indeed, doujinshi may also bolster, rather than degrade, the creative and economic interests of the copyright holder, 13 perpetuating interest in a preexisting franchise for years, sometimes decades after publication. Fan response and sustained interest can, and has, ensured the continuation of anime and games series. While some doujinshi artists turn a profit from their infringing use of protected characters, their success only bolsters the industrys own prosperity. It appears that copyright holders engage in a basic cost-benefit analysis, concluding that allowing doujinshi artists to continue their infringing conduct outweighs the potential economic loss. 14 The existence of such an understanding illustrates how the doujinshi market is allowed to flourish as an expression of fan interest, a breeding ground for new artists, and vehicle for growth of the manga and anime genres altogether. Additionally, the amateur art scene in Japan is the safe and comfortable environment in which new talent is nurtured. It has been noted that enacting, reciting, and appropriating elements from pre-existing stories is a valuable and organic part of the process by which children develop cultural literacy. 15 Japanese children are raised to explore, collect and exchange media content to suit their
12 Id. 13 Noda, N. When Holding On Means Letting Go: Why Fair Use Should Extend to Fan- Based Activities. 5 U. Denver Sports & Ent. L.J. (2008). 14 Mehra, supra note 6. 15 Jenkins, H. and Kelley, W., Reading in a Participatory Culture: Remixing Moby-Dick in the English Classroom, New York:Teachers College Press, 2013.
6 personalities. From that perspective, making fan art is an acceptable way for one to learn to draw. 16
While it would not be accurate to characterize all doujinshi as parody, some do indeed use characters and other aspects of protected works in a way that mimics the characteristics of a known work and transforms or recreates that work in a humorous manner. 17 The doujinshi genre taken as a whole, however, is arguably transformative to the point that they are like new works altogether and valuable to the market in ways that do not negatively impact the original author. Japanese courts have acknowledged the rich cultural heritage of parody and satire within Japanese culture, which has enriched Japanese literature and art from the satirical 12 th century drawings of rivaling Buddhist schools to modern day cartoons and commercial posters. 18 Its puzzling then that Japanese courts have refused to acknowledge parodic and non-parodic transformative works such as doujinshi as legitimate exploitations of copyrighted material 19 considering the role these types of works have and continue to play in Japanese culture, particularly as the notion of cultural property is so central to Japanese copyright.
16 Mehra, supra note 6. 17 Foster, M., Parodys Precarious Place: The Need to Legally Recognize Parody as Japans Cultural Property. 23 Seton Hall J. Sports & Ent. L., Art. 2, (2013). Quoting Parody Definition, Sanseido.net Web Dictionary. 18 Id. 19 Ganea, P. and Heath, C., Eds. Economic Rights and Limitations, Japanese Copyright Law: Writings in Honour of Gerhard Schricker, (2005), The Hague: Kluwer Law International.
7 Japanese Copyright Law The modern iteration of the JCL [hereinafter JCL], or Chosakuken, was enacted in 1970 20 and last revised in 2012. 21 Its purpose is to secure the protection of the rights of authors, etc., having regard to a just and fair exploitation of [] cultural products, and thereby to contribute to the development of culture. 22 Broadly, works of authorship for the purposes of the JCL are defined as any "production in which thoughts or sentiments are expressed in a creative way and which falls within the literary, scientific, artistic or musical domain". 23 Such productions include literary, musical, cinematographic, and photographic works. 24
Authors rights provide protection for the rights of reproduction, distribution, creation of derivative works, making the works public, and exhibition to name just a few. 25 These rights are divided into two categories: economic rights and moral rights, the latter being of an exclusively personal nature that can never be transferred. According to the JCL, acts which would infringe moral rights are prohibited even after the death of the author. 26
20 Tominaga, K. Does Japanese Copyright Law Need Fair Use? Center for Advanced Study & Research on Intellectual Property, Vol. 16, Issue 3, (2009). 21 Copyright Information and Research Center [hereinafter CRIC]. History of Copyright Systems in Japan. http://www.cric.or.jp/english/csj/csj2.html. 22 CRIC, Japanese Copyright Law, art. 1, Translated by Yukifusa Oyama et al., 2013. [hereinafter Japanese Copyright Law]http://www.cric.or.jp/english/clj/index.html. 23 Id. at art. 10(1) 24 Id. 25 Id. at art 18-28. 26 Id. at art. 18-20.
8 Japan has one of the most complete systems for the promotion of culture in the world 27 , viewing copyright as cultural property as well as promoting culture through legislation such as the Fundamental law for the Promotion of Culture and Arts (2001). 28 However, in order to balance the authors rights with the peoples cultural enjoyment, the JCL subjects the exclusive rights of authors to a laundry list of exceptions and limitations. 29 Exceptions and limitations in the JCL include reproduction for private use, reproduction in libraries, quotation privileges, use for educational purposes, performances for non-profit purposes, use for news reports, use in political speeches, reproduction in judicial proceedings, exhibition of artistic works by the owner, and use of artistic works located in public spaces. 30
There is, however, no general Fair Use provision, nor one for determining whether a transformative work such as parody is a permissible use of protected works. Indeed, Japanese judges have explicitly refused to recognize that the law contains a general Fair Use exception. Instead, only those uses that fall within the detailed requirements of one of the specifically enumerated exemptions are free from infringement. 31
The broadest exceptions under the JCL that even come close to the type of exceptions in U.S. Fair Use are found in articles 30 and 32. Article 30 provides for the reproduction of protectable works for private use (personal use, family use or
27 Scott, J. A Comparative View of Copyright as Cultural Property in Japan and the United States. 20 Temp. Int'l & Comp. L.J. 283 2006 28 [P]roviding a comprehensive mechanism for promoting culture and the arts in Japan. It includes the enhancement of cultural facilities and the protection and use of copyrights. Tominaga, supra note 20. 29 Id. 30 Id. See also Japanese Copyright Law, art. 30-50. 31 See Ganea, supra note 19.
9 other similar uses within a limited circle 32 ). This exception is inadequate to cover doujinshi and similar works because they are by nature not for private use and enjoy a very public, widespread popularity. Article 32 allows for quotations from a work already made public, provided that their making is compatible with fair practice and their extent does not exceed that justified by purposes such as news reporting, criticism or research. 33 This is also inappropriate for doujinshi because works in this genre do not simply quote targeted works, but transform those works into something new. 34 Thus amateur, fan-created doujinshi do not currently fall under any of the enumerated limitations or exceptions of the JCL and continue to exist subject to the grace of copyright holders. U.S. Copyright Law In contrast to the JCLs focus on cultural property, the goal in the United States is viewed as largely economic and achieved by balancing an authors rights against societys economic and social progress. 35 The U.S. Constitution grants to Congress the power [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. 36 Instead of growing out from a cultural property framework, there are two assumptions thought to be at the foundation of the U.S. Copyright Act: 1) that it is to the advantage of an enlightened society to encourage creative additions to the resource of the public domain, and 2) that
32 Japanese Copyright Law, art. 30(1) 33 Japanese Copyright Law, art. 32(1). 34 Foster, supra note 17. 35 Id. 36 U.S. Constitution. art. I 8, cl. 8.
10 unrestrained and unimpeded replication of intangible intellectual and creative products is not in the best interests of the community. 37
The U.S. Copyright Act protects original works of authorship fixed in a tangible medium, providing an author with a limited monopoly on a variety of works including but not restricted to literary works, pictorial, graphic, and sculptural works, and audiovisual works. 38 Yet, the Act does not give a copyright holder control over all uses of his copyrighted work. Instead, [106] of the Act enumerates [six] 'rights' that are made 'exclusive' to the holder of the copyright 39
including reproduction, distribution, preparation of derivative works, display, and public performance. 40 These rights are subject to a series of limitations similar in intent and effect to those under the JCL but the U.S. Act goes a bit further by incorporating the doctrine of Fair Use. Fair Use Doctrine Fair Use predates the 1976 Copyright Act by more than a hundred years. In the mid-nineteenth century, Justice Story laid the foundation in Folsom v. Marsh, stating, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work. 41 Section 107 of the Act later codified Justice Storys common law expression, providing that the
37 Scott, supra note 27. 38 17 U.S.C. 102(a) 39 Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975) 40 17 U.S.C. 106 41 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) quoting Folsom v. Marsh, 9. F.Cas. 342 (C.C.D. Mass. 1841)
11 Fair Use of a copyrighted work [] is not an infringement of copyright, 42 and specifies four fact-specific factors to be considered in a Fair Use analysis: 1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2. the nature of the copyrighted work; 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. the effect of the use upon the potential market for or value of the copyrighted work. 43
This exception to the exclusive rights granted under 106 allows courts to distinguish between socially appropriate uses of copyrighted material and illegal exploitation. The four factor analysis provide guidelines permitting courts the flexibility to take into account the nuances of specific cases in determining the propriety of the use in light of the public interest and purpose of the Copyright Act. Parody The concept of parody maintains a special and often frustrating place in American jurisprudence. Despite being reviewed by the Supreme Court and adjudicated in a number of lower courts around the country, parody continues to confound the enforcement of copyright because it is at once protected speech under the First Amendment as form of social commentary as well as a potential illegal exploitation of copyright. Furthermore, there is no hard and fast rule that defines parody, forcing judges to evaluate whether a derivative is a permitted use on a case- by-case basis. In 1994, the U.S. Supreme Court established that a commercial parody could be deemed Fair Use in Campbell v. Acuff-Rose Music, Inc. 44 The unanimous Court
42 17 U.S.C. 107 43 Id.
12 defined parody as "the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works"; 45 the commentary function providing the justification for use of the original work. Instead of enlarging or shrinking the copyright regime intended by Congress, the Campbell decision helped maintain a flexible, case-by-case analysis, simultaneously recognizing the value of parody as a form of social criticism and as a catalyst in literature. Parody plays an integral function as a catalyst in the continuing development of art. It has been noted that "[t]o decide parody cases sensibly, courts must recognize the demands of the literary enterprise as an important interest distinct from the parodist's and the copyright owner's. Literature needs criticism, . . . and parody is a type of criticism." 46
The key to any Fair Use-parody analysis is whether the alleged infringing use is sufficiently transformative. Considering the first 107 factor, the purpose and character of the use, the question is whether the new work supersedes the original or transforms it. The Campbell Court noted the genres "obvious claim to transformative value," 47 identifying parody as "the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works." 48 Later, the court in Blanch v. Koons (2006), 49 dictated a similar test for determining a works transformative nature when it considered the matter of an
44 Campbell, supra note 41. 45 Id. 46 Babiskin, L. Oh, Pretty Parody: Campbell v. Acuff-Rose, 8 Harv. J. of Law & Tech. 193 (1994). Quoting Bisceglia, J. Parody and Copyright Protection: Turning the Balancing Act Into a Juggling Act, 34 ASCAP Copyright Law Symposium 1,4 (1987). 47 Campbell, supra note 41. 48 Id. 49 Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006).
13 artists incorporation of a photographers preexisting work into a new, differently purposed piece. In Blanch, the proper inquiry was whether the new work "merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message. 50
Even when held up against the remaining three 107 factors, sufficiently transformative parodies tend to pass Fair Use muster. The second factor, the nature of the copyrighted work, isnt terribly influential either way because parodies almost always copy known, public works that are close to the core of copyright. Parody presents a special case for the third factor, the amount and substantiality of the use, because by its very nature, a parody must take a portion of the original in order to be recognizable and succeed in its commentary. The Court in Campbell recognized this unique posture of parody, stating, when parody takes aim at a particular original work, the parody must be able to 'conjure up' at least enough of that original to make the object of its critical wit recognizable. 51
Finally, the last factor, the parodys effect on the market, cannot be decided on the commerciality of the parody alone. Often, the parody does not compete in the same market as the original and the original copyright holder is unlikely to create derivatives of her own that would lampoon her work. However, if a parody negatively impacted market demand for the original through its criticism or denigration, it could fail the fourth factor and perhaps the entire Fair Use analysis.
50 Id. 51 Id.
14 Trans-Pacific Partnership and Potential Effects on Japanese Copyright As mentioned above, Japan is one of twelve countries currently undergoing trade talks as part of the TPP Trans-Pacific Partnership Agreement. Japan joined the U.S.-led TPP discussions in 2013 with promises of prosperity for the future in the Asia-Pacific region 52 . According to the Office of the United States Trade Representative [USTRO], the TPP was convened to enhance trade and investment among the TPP partner countries, promote innovation, economic growth and development, and support the creation and retention of jobs 53 . Key features of the agreements framework include elimination of tariffs and other barriers to trade, environmental protection, labor rights, telecommunications access, and intellectual property rights 54 . At first glance, the IP rights language in the USTROs outline seems innocuous enough. It states that parties to the TPP agreement agree to, reinforce and develop existing World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) rights and obligations to ensure an effective and balanced approach to intellectual property rights among the TPP countries [] including trademarks, geographical indications, copyright and related rights, patents, trade secrets, data required for the approval of certain regulated products, as well as intellectual property enforcement and genetic resources and traditional knowledge 55 . However, the leaked U.S. draft 56 includes language that can be interpreted as seeking to impose strict IP standards on TPP members that are not only more
52 Japan Prime Minister Shinzo Abe Press Conference (Google Translation), March 15, 2013. http://www.kantei.go.jp/jp/96_abe/statement/2013/0315kaiken.html. 53 Office of the U.S. Trade Representative. Outlines of the Trans-Pacific Partnership Agreement, 2011. http://www.ustr.gov/about-us/press-office/fact- sheets/2011/november/outlines-trans-pacific-partnership-agreement. 54 Id. 55 Id. 56 Trans-Pacific Partnership Intellectual Property Rights Chapter Draft [Hereinafter TPP Draft]. February 10, 2011. http://keionline.org/sites/default/files/tpp-
15 restrictive than required by current international law but also in some cases, go beyond existing U.S. IP law standards 57 . Operating under the assumption that the leaked IP provisions are a close approximation of the legislative changes the TPP might impose, one can see how the doujinshi community is not alone in perceiving the stepped-up IP provisions as a threat. The Program on Information Justice and Intellectual Property (PIJIP) at American University, which is concerned with issues where IP intersects with international law, open access initiatives and the free flow of knowledge-based goods, 58 characterized the leaked IP chapters thusly; [t]he U.S. proposals, if adopted, would upset the current international framework balancing the minimum standards for exclusive rights for media and technology owners, on the one hand, and the access rights of the public, competitors, innovators and creators, on the other. 59
The leaked proposal could potentially impact the JCL in five main areas. First, article 4(1) would permit copyright holders the exclusive right to prohibit all reproduction . . . in any manner or form, permanent or temporary (including temporary storage in electronic form). 60 This could potentially supersede the enumerated limitations on copyright currently codified in JCL articles 30-50. The
10feb2011-us-text-ipr-chapter.pdf. No official version of the U.S.s proposed IP draft has been released. However, a number of sources seem to be validating the leaked version as evidence of what the U.S. has indeed proposed to the TPP. See Electronic Frontier Foundation, supra note 3; and Wikileaks, supra note 1. 57 Electronic Frontier Foundation, supra note 3. 58 Palmedo, M. About Us. Infojustice.org. http://infojustice.org/about. 59 Flynn, S. et al. Public Interest Analysis of the US TPP Proposal for an IP Chapter. Program on Information Justice and Intellectual Property American University Washington College of Law. Dec. 6, 2011. 60 TPP Draft, article 4(1), supra note 56.
16 TPP Draft also calls for an extension of the term of protection for a work, performance, or phonogram by 20 years, thereby increasing the current term of 50 years after the authors life to life plus 70 years. 61 This raises concerns about the availability of content if the copyright holder seeks monopoly control of cross- border distribution. 62 Additionally, this term extension is more restrictive than what exists currently in the U.S. Act because while the TPP sets the specified terms as the minimum level of protection, [] U.S. law sets this limit as the ceiling of the term. 63
Article 4(2) of the TPP Draft would bestow upon Japanese copyright holders the ability to prohibit parallel importation, 64 the importation of non-counterfeit goods into a market and sold without permission from the IP rights-holder to do so in that particular market. 65
Third, while Japan already has a notice-and-takedown requirement, 66 the TPP Draft would impose a more stringent takedown obligation similar to that codified in the U.S.s Digital Millennium Copyright Act (DMCA), 67 increasing the obligation from one in which an alleged infringer has seven days to reply to claims
61 Id. at article 4(5). See also Japanese Copyright Law, art. 51. 62 Sutton, M. What Will Japans Entry Into TPP Mean for Internet Users? Electronic Frontier Foundation, July 18, 2013. https://www.eff.org/deeplinks/2013/07/what- will-japans-entry-tpp-mean-internet-users. 63 Flynn, supra note 51. 64 TPP Draft, article 4(2), supra note 56. 65 WTO Glossary. Parallel Imports. http://www.wto.org/english/thewto_e/glossary_e/parallel_imports_e.htm. 66 Japanese Ministry of Internal Affairs and Communications. Act on the Limitation of Liability for Damages of Specified Telecommunications Service Providers and the Right to Demand Disclosure of Identification Information of the Senders, (2001). http://www.soumu.go.jp/main_sosiki/joho_tsusin/eng/Resources/laws/pdf/H13H O137.pdf. 67 17 U.S.C. 512(c)(1)(C)
17 to one in which takedown is immediate. 68 Lastly, and perhaps most chilling to the doujinshi community, TPP article 15(1) could require officials to contravene an established Japanese principle known as shinkokuzai, whereby crimes are not prosecuted without a formal complaint from the victim, 69 without proof of actual harm. 70 Whereas the responsibility for enforcing his or her rights typically lies with the copyright holder, the TPP criminalizes infringement the duty, expanding copyright infringement to include infringements that have no direct or indirect motivation of financial gain. 71 Potentially, the burden and cost of whether to enforce IP rights shift to the state from the copyright holder under the TPP raising the potential for state abuse and imbalance of power. The PIJIP warns that [t]he U.S. proposals, if adopted, would create the highest intellectual property protection and enforcement standards in any free trade agreement to date. 72 If the stakes are this high for member countries intellectual property, then how will artist communities have any chance? The Case for Japans Adoption of a Fair Use Provision As the major players in international trade and IP set their sights on strengthening copyright protections and making them more uniform through agreements like the TPP, the concept of Fair Use may provide a safe haven of sorts, leaving states the flexibility of determining permissible uses on a case by case basis. The U.S. Fair Use doctrine makes for a good foundation on which Japan could base a
68 TPP Draft, article 3(2)(ii), supra note 56. 69 Sutton, supra note 62. 70 TPP Draft, article 15. supra note 56. 71 Id. at article 15(1) 72 Flynn, supra note 51.
18 general provision because it 'permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.'" 73 It is clear that the JCL is designed to foster the preservation and enjoyment of cultural property. Therefore, adopting Fair Use, particularly where parody is concerned would help to prevent or mitigate any stifling of doujinshi and similar works that do not pass muster under a rigid application of the law but undoubtedly form an important part of Japanese culture. There are some concerns about the adoption of U.S. Fair Use into Japanese law such as compatibility with international law obligations, the realities of Japanese legal culture, and preference for an enumerated, specific provision that must be addressed: International Law Both the U.S. and Japan are parties to the Berne Convention, 74 an international copyright treaty administered by the World Intellectual Property Organization (WIPO). The Berne Convention article 9(2) sets forth criteria for creating exceptions to exclusive right of reproduction protection in the form of a Three-Step Test. TRIPs (Trade-Related Aspects of Intellectual Property Agreement) 75 article 13 incorporates Berne 9(2) and applies the Three-Step Test to all of the copyright holders exclusive rights. 76 Under the Three-Step Test, member states shall confine limitations and exceptions to (1) certain special cases (2) which
73 Campbell, supra note 34 (quoting Stewart v. Abend, 495 U.S. 207 (1990)) 74 Berne Convention. July 24, 1971, S. Treaty Doc. No. 99-27, 1971 WL123138. 75 Agreement on Trade Related Aspects of Intellectual Property Rights. 1869 UNTS 299; 33 ILM 1197 (1994). 76 Id. at art. 13.
19 do not conflict with a normal exploitation of the work (3) and do not unreasonably prejudice the legitimate interests of the right holder. 77
Some have argued that the U.S. Fair Use doctrine is incompatible with the Three-Step Test because certain special cases is sometimes interpreted more specifically, as in serving a special purpose. However, in the Irish Music Rights Organization (IMRO) Case, 78 the WTO Panel carefully worded its decision to ensure that certain special cases meant clearly defined and limited in field of application or exceptional in its scope. The panel rejected idea that certain special cases meant that it must serve a special purpose, noting that any resulting law need not explicitly list each and every special circumstance being covered. This language was carefully chosen so as to avoid future criticism of U.S. Fair Use, 79 thereby keeping the doctrine within the acceptable confines of the treaty. Therefore, U.S. Fair Use is not, on its face, incompatible with international treaty obligations. 80
Japanese Legal Culture Another critique of importing Fair Use into Japan is that the countrys civil law system and legal culture cannot support it. Japans civil law system focuses on legal certainty with courts referring to formalized codes and statutes that determine how cases ought to be decided. 81 The case-by-case analysis demanded by Fair Use is thought to be incompatible with Japans civil system where judges dont have as
77 Berne Convention, art. 9(2), supra note 75. 78 United States: Section 110(5) of the US Copyright Act, Report of the Panel, June 15, 2000, (00-2284), WT/DS160/R, at 69, [hereinafter IMRO Case]. 79 Hughes, J. Lecture Notes: Limitations & Exceptions in Copyright Law. International Intellectual Property Selected Topics. Cardozo Law School, Autumn 2013. 80 Id. 81 Tominaga, supra note 20.
20 much discretion. While Fair Use may offer some flexibility on how to decide a case, the four fact-specific factors provide guidance on how to decide such matters that could still prove compatible with the civil system. France has a civil system as well yet also manages to provide for Fair Use/parody within its copyright law. This should be particularly instructive to Japan since its copyright law draws from Frances Code de la Proprit Intellectuelle. 82
Japanese culture is thought to be far less litigious than the U.S. as its citizens believe that [t]o pursue litigation disturbs harmony, and therefore is considered to be shameful. 83 If this is true, Japanese Fair Use might prove more frustrating because it would contravene social norms to bring suit even where one was justified and fewer cases might be pursued altogether. Furthermore, the Japanese legal system discourages litigation almost by design with fewer litigation attorneys, delays in resolving cases, and other institutional barriers. 84 However, I believe this to be a moot point if the TPPs IP provisions are adopted because as discussed above, the Draft IP provisions would require states to pursue copyright violations despite the wishes of the copyright holder. Japan should seek to craft its own laws that would provide a legal remedy if desired while leaving the option open to resolve disputes outside of the courtroom. Enumerated vs. General Provisions Critics of importing Fair Use into Japan cite the certainty and reliability of enumerated and specific provisions. While its true that U.S. Fair Use once
82 Foster, supra note 17. 83 Id. 84 Mehra, supra note 6.
21 described as the most troublesome [issue] in the whole law of copyright" 85 can be rather unpredictable, Japan should consider a general Fair Use provision that could embrace certain transformative works as permissible in order to reflect the belief that individual expression is integral to Japanese culture. Lack of a general Fair Use provision leads to rigid interpretation of the Copyright Law, which may sometimes lead to unfair results. 86 Some legitimate work, like reverse engineering of software, might be foreclosed altogether without a general provision that could take into account the circumstances under which such reverse engineering took place. 87
Conclusion The TPP has important economic implications for its members but Japan might find that the intellectual property provisions therein could have an undesired, chilling effect on the types of cultural property the JCL stands to protect and encourage. Enacting a Fair Use/parody exception before the TPPs IP provisions go any further would show the international community that Japan is committed to constantly updating and improving its copyright regime and proactively protecting works, while perhaps staving off international pressures for stricter controls that dont comport with Japanese culture and/or jurisprudence. Doujinshi provide just one example of how creations that technically infringe upon copyright can exist symbiotically with the original works without competing or usurping the rights of the copyright holder in any meaningful way. Using Fair Use
85 Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661 (1939) 86 Sugiyama, K. Japanese Copyright Law Development. Presentation at Fordham University IP Conference. April 19, 2001. http://www.softic.or.jp/en/articles/fordham_sugiyama.html. 87 Id.
22 to create a safe harbor for these types of works relieves copyright holders and the general public of trying to fit each situation into narrow limitations and exceptions and instead allows the realities of how and why works are created and used to determine the outcome. If Japan continues to avoid the Fair Use issue, the international community might seek to impose stricter, less culturally specific rules. It will be interesting to watch the development of the TPP, which unfortunately continues behind closed doors, to determine how much influence foreign nations will have on Japanese copyright going forward.