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Law Journal Article Supports Fansubs (Updated)

An essay in the June 2008 issue of the Boston University Law Review journal has come out in support of some cases of distribution of fansub versions of anime licensed for commercial release in America. "Lost in Translation: Anime, Moral Rights, and Market Failure," written by law school student Joshua Daniels, argues that heavy editing of Japanese anime series for American release, as was the case with 4Kids Entertainment's handling of One Piece, is a violation of the moral rights of its creators. The legal concept of moral rights holds, essentially, that the creator of a work of art or media has a right to present it to the public without alterations. Daniels also makes the case the anime fans specifically and the public in general have an interest in access to entertainment and art in its original, unedited form.

The essay notes that in some cases, heavily edited versions of anime series are the only ones that are available in the American market. However, these versions have frequently been failures from a commercial point of view. To address this apparent market failure, Daniels proposes a new rule that would be included in the American laws on copyright. Under the rule, if only an edited version of a foreign film or television program is available commercially in the United States, any individual or group would be allowed to create and distribute versions, such as fansubs, that are unedited. While unlikely to be implemented, the hypothetical rule could either be used by judges, or actually incorporated into the Copyright Act.

Update: Moral rights or "droit moral" are protected by the Berne Convention that established how copyrights are recognized between countries. However, the Berne Convention and the laws of many countries established that only the author can exercise those moral rights, and not a third party unless that party is assigned to do so by the author. In implementing the Berne Convention in 1988, the United States stipulated that its existing laws already protected moral rights without having to explicitly abide by the convention's clauses on moral rights.