Remember the Stop Online Piracy Act and Protect IP Act from 2011? These acts aimed to stop piracy, but at the same time introduced unintended consequences since the legislation was so broad that companies and government can use it to request internet service providers to censor sites. If thy were to pass, companies can use it to censor your content and limit free speech. Thankfully, people protested and these two legislations died. ACTA (Anti-Counterfeiting Trade Agreement) faced the same fate since it was SOPA-like.
Now, we have a new bogeyman that will threaten free speech, reign in censorship and limit free speech. This will not only destroy anime blogging, but the anime fandom as we know it. That is the TPP, which is commonly referred to as the Trans-Pacific Partnership, a secret trade deal that involves the United States and other Asian countries in the pacific, including Australia, Canada, Japan and others.
This recently leaked treaty has a lot of nasty copyright restrictions that will undermine fair use and make copyright violations a criminal offense. This mean that you might get a hefty fine or even get thrown into jail. With that, I’m going to share some background information about the treaty and then go into certain provisions that will possibly impact the anime fandom as a whole.
What is the Trans-Pacific Partnership?
The Trans-Pacific Partnership is a trade agreement between countries around the Pacific rim. The sole purpose is to reduce trade barriers and such. It seems innocent, right? Not really since the trade agreement not only include things that promote crony capitalism, but there are also provisions that will destroy the free and open internet in respect to the intellectual property provisions. Some of these nasty provisions includes copyright extensions, strong DRM (Digital Rights Management) protections, severe restrictions on fair use, and criminal sanctions for copyright infringement.
Because the trade agreement has been done behind close doors, it was not until recently that a good amount of the details got leaked into the public. Still, there is possibly more nasty details that might get revealed in the future. Even so, it seems that everyone is against the trade agreement as seen from mass protests. While organizations like the Electronic Frontier Foundation and Fight for the Future are fighting against the Trans-Pacific Partnership, people in the anime industry is against it since the provisions in the Trans-Pacific Partnership can destroy derivative works such as doujinshi and fanart. Therefore, the manga industry will diminish as a result since there is no such restriction in Japan currently.
Since the Trans-Pacific Partnership treaty is long, I’m going to focus only on the aspects that will impact the anime fandom.
Limits on Fair Use
Fair use is very important, especially in regards to reviews, parodies and derivative works. Fair use basically allows a user to use copyrighted content for criticism, commentary, parody, etc. Derivative works is somewhat protected under fair use under parody. Either way, Fair use is very important since it makes discussion about anime, reviews, and blogging possible.
However, the Trans-Pacific Partnership aims to limit that by putting severe restrictions on it. According to the Electric Frontier Foundation, the United States and Australia are imposing restrictive language on fair use. This means that things that are originally covered under fair use might not be considered as such. As a result, the copyright holders can go and take down reviews or parodies that they believe are copyright infringement that were previously protected by it. This means that your blog might get taken down because you used screenshots or wrote a review on an anime you just finished.
In short, companies like Funimation who is going on a false DMCA spree taking down tweets of people critiquing the shows they own a license for or a parody a screenshot, and therefore censoring criticism. The sad part is that, they can get away with it since fair use defense will not apply with the Trans-Pacific Partnership in effect due to the restrictions put on it.
Negative Effects on Derivative Works
Technically, derivative works is in a grey area since it only has some protection from fair use in instances like parody. Stronger copyright provisions under the Trans-Pacific will of course threaten fan works like Doujinshi, fan art, fan fiction, etc. This is something that the anime industry is worried about since derivative works is not a criminal offense unless the victim files a formal complaint. In most cases, the creator or the company behind a particular franchise or source material will not go after people who make derivative works since it promotes their works.
Under the Trans-Pacific Trade Agreement, copyright infringement is a crime where the offender can be prosecuted without the copyright holders or victim’s consent. This means that derivative works (including reviews that are covered under fair use) can be taken down and the offender can be charged for a crime. This is something that Akamatsu Ken, a manga creator is vocal against since it will have a negative impact on sites like Niconico and Pixiv, which contain derivative works that benefits the industry.
What is affected under this? While you will not get charged if you cosplay a character from a derivative work, Doujin and Fanart will definitely be impacted along with possibly of putting Comiket in danger where derivative works is shown and sold.
In my opinion, they should go after people who are knowingly uploading copyrighted material and hosting it, not people who make derivative works.
Ability for Copyright Holders to ask ISPs to block sites through Takedown Notices, just like SOPA
While it is understandable why companies want to take down sites that host copyright material, just like with Stop Online Piracy Act, copyright holders can basically abuse these takedowns to remove content that they do not like such as a parodies that makes fun of their work or a highly critical negative review of a show they hold a license to. With the use of automated systems, innocent websites can be caught in the cross fire with false positives like the ones I experienced. This is bad since it will become difficult to figure out if a show is worth watching or not.
Under the new system, the company can file a claim and have the ISP (Internet Service Providers) block the website, until merit is assessed. In short, if you wrote a negative review of Glasslip and PA Works did not like the review, they can basically file a copyright claim and have your site taken down. Also, if you own a domain name, they can have that seized too, even without a formal complaint. Moreover, hosting companies and ISPs might become reluctant to host sites that contains materials that are too risky to host, even if it is fair use. In other words, this aspect of the Trans-Pacific Partnership is something that is similar to Stop Online Piracy Act, but on steroids.
You can even get thrown into Jail or be heavily fined for Copyright Infringement
This is a very scary aspect of the Trans-Pacific Partnership Agreement since you can be criminally charged for Copyright Infringement, even if it is not warranted or you use the fair use defense. Aside from illegal downloading, if you make a doujinshi, fan art or a critical review, you can get slapped with a hefty fine, have your computer confiscated or destroyed or even get locked up in prison for years.
This aspect is insane for the fact that copyright infringement is now being treated like a serious crime such as murder, arson, theft, and rape. Just think about that for a minute. Given that copyright takedowns can easily be abused, there is an extremely good possibility that this can be abused to censor and ruin the lives of people who dare criticize a particular show or on people who you do not like.
What can you do about the Trans-Pacific Partnership?
Now that I have shared the nasty aspects of the Trans-Pacific Partnership that will destroy the anime fandom as we know it, you can and should take action. First off, get yourself informed about the trade agreement now that more details are getting leaked. The Electronic Frontier Foundation is a good place to start in regards to how Trans-Pacific Partnership will impact the internet. Although I focused on the impacts on the internet and intellectual property, you should also read the other aspects and how it impacts you.
Once you are informed about the trade deal, contact your political officials. Of course, spread the word. People in power will only listen only if there is wide opposition from the people. Also, share this article on social media as well with other people in the fandom.
With that, what are your thoughts about the Trans-Pacific Partnership trade agreement? Do you think it will have a huge negative impact on the anime fandom? Feel free to discuss.
Will TPP “destroy” anime fandom? I doubt it. There’s more potential for litigation, but I doubt anime creators will be willing to sue fans for creating fanart and doujinshi. TPP won’t change the fandom culture – at least, not overnight.
I am pretty worried about TPP, though. It’s definitely been created with big businesses in mind. The part about silencing criticism under the veil of copyright infringement laws is already a thing, but it might become even more widespread if the act gets passed. And like you said, there are other HUGE areas of concern outside the domain of intellectual property laws.
Good post, by the way. It lays out the issues really clearly.
It won’t be the “creators” that would sue.
I think the reason why the doujin and fanart is thriving is because copyright infringement requires someone to make a formal complaint before they go after the perpetrator. Given that creative works is free advertising, although people make money off of, the industry will see it as a beneficial thing. This is probably a reason why they are worried about the TPP, since it will change their copyright system to a rather broken one we have in the United States and we all know how broken the DMCA is to the point that someone can abuse it to censor criticism (there are several instances of this, especially with video game reviewers).
The TPP definitely worries me since it’s crony capitalism at its worse. Sure, the intellectual property things are very bad, but there are other bad things such as companies being able to sue governments and whistleblowers can be punished and silenced for revealing the truth of the corruption inside a company or an organization. There is lots of things to worry about, not just SOPA 2.0 in TPP.
As much as I would like to get up in arms about this, I am going to play devil’s advocate for a bit. For example, the NFL got two twitter news outlet (if you want to call them that) accounts suspended for using GIF footage of the game. Under Fair Use, taking a snapshot of the game or even making a GIF is considered fine, but if a company like the NFL doesn’t like it, you can still have action taken against you since a GIF (even if it does loop) is altering a copyrighted work, especially if you don’t have consent. Only reason why there isn’t much a outcry over that in the larger sphere of things (I.E: Tumblr, etc) is because most companies treat it as publicity for their brand and in reality, impossible to go after every single person that makes a crack at them. You really want to go to court for something as petty as bad review or altered content when you can simply terminate accounts? Most companies don’t want to shell out the cost of legal proceedings and waste the time/effort, so getting into contact with the content provider or pushing away fraudulent content (or even outright calling it libel) is the next best move. Even though what the NFL did was petty, they have to protect their copyright and I can respect that. That might sound stupid, but if you are visible entity and have a lot to lose (partnerships, deals worth $XXX,XXX) because one of your sponsors/shareholders/performers are complaining, you might think twice. I seriously doubt that someone actually complained about something like that, but you the know the U.S, highly litigious society.
In the case of anime and the Trans-Pacific Partnership, I do think it poses a problem, but working under the same logic, it does make it easier for the copyright holders to protect their work…even if some innocent folks get caught in the crossfire. Best thing is that enough people get caught in it and grumble enough for the legislators to review the law and make changes. I hate that issues like this have to crop up and takes people becoming reactive to get anything done, but as you pointed out, some people are uploading content illegally and sadly, use the “Fair Use” line as a plausible excuse. The companies don’t know the difference between a legitimate anime blog and shady distro site, but if they see so much of a screenshot or keywords, they have to go after it because it might be a case of violating copyright. Some companies do review the situation after the fact and respond to disputes where they are wrong and admit it (whether that be to the search engine marking it as such or 3rd party), so at least they do listen and would say to cut people like Funimation and Daisuki some slack. If they don’t do what they are suppose to, then that does kinda hurt fans getting more content as well as hurt their bottom line. Anyway, just another case of good intentions on the part of our misguided human leaders that lead to some unintended consequences. I haven’t been keeping up with the news lately as I usually do (other than listening to NPR on my lunch break or on the way home), but will read up more on the entire agreement.
It’s understandable why companies want to protect their copyrighted works. By no means people should be able to try and defend the act of uploading illegal copies of copyrighted content and try to use fair use to get away with it without realizing that it does not cover blatant copyright infringement. This abuse is probably a reason why they want to limit fair use, but of course, it puts a lot of legitimate sites in the crossfire. To me, solving the issue with overreaching acts like SOPA is not the right way to deal with the problem since there is a good possibility of abuse and try to censor websites.
In short, I do think that there needs to be copyright reform as the laws are simply not designed for the internet. It’s easy for a company to abuse copyright by protecting their works for a ridiculous amount of time and never allow it to enter the public domain ever. To me, copyright laws need to be reformed so that creators can protect their works and prevent such things as abuse of takedowns to possibly censor criticism while protecting fair use and backup copies that one owns. The TPP pretty much harms the innocent people who just make reviews and creative works rather than going after the people who uploads copyrighted content. Also, copyright infringement should never be treated as something criminal, but at most a small fine at worse, unless the person is knowingly sells pirated DVDs of works he/she owns. Of course, automated systems never work as there is too many false positives, even though companies who are involved in the industry like Funimation or Daisuki does not intend to do so.
Even so, I don’t think it’s an end all completely for Anime fans, providing that legal streaming is more convenient than messing around with bittorrents and IRC downloading while being afordable. Sure, the sub quality is meh, but it does the job.