Forum - View topic

NEWS: Japan Considers Fair-Use Clause Based on U.S. Copyright Law

including whether the copying or use is intended for non-commercial purposes

So this means we could technically watch a fan subbed version of Rebuild of Evangelion 1.01 in my Popular Japanese Cultures class at my university without legal permission?

That would be stretching fair use beyond its definition. You might be able to make an arguement for the Japanese version but again that's doubtful too knowing that even clips over here in an educational setting require permission IIRC.

So this means we could technically watch a fan subbed version of Rebuild of Evangelion 1.01 in my Popular Japanese Cultures class at my university without legal permission?

hikaru004 wrote:

That would be stretching fair use beyond its definition. You might be able to make an arguement for the Japanese version but again that's doubtful too knowing that even clips over here in an educational setting require permission IIRC.

Not quite. U.S. law already has fair use provisions, and in addition to those fair use provisions has fairly generous educational exemptions for the use of copyrighted material in a face to face classroom setting (which immediately shrink significantly when moving to the digital environment). Purchasing the Japanese video in the first place will contribute to the fair use argument.

At any rate, your mileage about using such materials is going to vary depending on your institution and what kinds of risks they're comfortable with.

But those provisions would not allow you to use a fansub and a quick peak at the Sony site reveals the reality of the fair use law and educational facilities.

The Cliff notes version. You need permission for it and you're going to pay for it.

So this means we could technically watch a fan subbed version of Rebuild of Evangelion 1.01 in my Popular Japanese Cultures class at my university without legal permission?

Unlike the educational exemption (and for that matter, just about all of the rest of the exemptions), fair use does not have the use of a legal copy written into the statutory language. But that is why we'd want to buy a legal version as well. It would be even better if we could subtitle it ourselves, but that's not always possible.

Ummm... you know, this doesn't make any sense to me. I was under the impression that the purpose of fair use was to allow educators and journalists the freedom necessary to do their jobs. But if I'm reading this news post correctly, there are already provisions in Japanese law. So for all intents and purposes, don't they already have "fair use"?

This is not really true. Here's why:

Both Japanese and U.S. copyright law provide that unauthorized derivative works are INFRINGING works (by giving authors the exclusive right to approve and distribute derivative works). Both sets of laws include translations in the definition of derivative work. So, a translation of anime (i.e. a fansub) is an unauthorized derivative work because it is a translation that was not authorized by the copyright holder--therefore, it is an infringing work. Without going through all the elements, I think it's pretty easy to say that fansubs fail the fair use test and would not in and of themselves have a fair use defense.

Section 107 of the Copyright Act says that "the fair use of any copyrighted work . . . is not an infringement of copyight" (emphasis added). An unauthorized derivative work is NOT a "copyrighted work"--in fact, it it is already an infringement of copyright. There is no way that a work that is itself patently infringing (ooo, a legal pun...) can be used fairly (as defined by law), since the fair use provision clearly calls for a copyrighted work. Therefore, in order to avoid liability (THIS IS NOT LEGAL ADVICE, I AM NOT A PRACTICING ATTORNEY--speak to your own legal counsel), my view is that you would have to show a legally purchased region 2 copy of Rebuild of Eva 1.0 (because anything else would be distributed without authorization) with whatever languages are on the DVD, OR to do the subtitling explicitly as a class project in order to study the Japanese language. I'm making an educated guess on the last one, so again--this is not legal advice.

(please note that I am not arguing that infringement is always a bar to fair use, which would make no sense--fair use is actually a defense to infringement. I'm talking about the situation where the creation of the work was not "fair" in the first place, so any use of it afterwards is also not fair)

Depending on the circumstances, I agree with you. However, I believe there are circumstances when creating a fansub would pass a fair use evaluation. As distribution is generally practiced, though, I agree.

Here's where I'll disagree. There's little question that an unauthorized derivative work can have its own copyright associated with it, although the elements that are the copyright of another aren't owned by the creator of the derivative work. (For example, uses that are fair but unauthorized are protected by copyright.)