There has been surprisingly little fanfare to welcome the new “criminalization of illegal downloading” laws that came into effect in Japan today (October 1, 2012). I thought I would share some of what I have learned about this law.
First of all, what is being criminalized is illegal downloading of copyrighted material (regardless of whether it is for personal use or not) that is obtained through public transmission. Offenders face up to two years in prison or fines of up to two million yen.
Merely watching or streaming illegally uploaded copyrighted material does not come under this law.
The illegal downloading of copyrighted material is considered an “offense prosecutable upon a complaint” (親告罪), which means that people cannot be prosecuted unless the copyright holder lodges a complaint.
The law is very clear that there has to be copying of sound or video involved, so merely watching YouTube content (even if it has been illegally uploaded) is not prosecutable. [Note from Shaney: However, I believe downloading the illegally uploaded YouTube content would fall under this law, and therefore be a criminal offense, as long as it could be proven that the person who downloaded it knew that it was copyrighted work.]
If your friend sends you an illegal copy of a file by email and you download the file, this is not a criminal offense or illegal. Downloading a file from your email is not considered “public transmission”, so it is not within the range of this law. However, if you send an email with (copyrighted) music or video to anyone other than another person in your household [not sure how this is defined], then that is “illegal in principle”.
Copying and pasting image and text files for personal use is not punishable. This law is concerned with illegal downloading of sound and video files, not image and text files.
In order to prevent this law from unnecessarily restricting people’s use of the internet, the following conditions apply.
- The act must have been “on purpose”. If the person does not realize that (1) it is a copyrighted work and (2) it came from a public transmission that infringes on the copyright, then the person cannot be prosecuted. [Note from Shaney: I think this just means that they can inform you of this fact the first time you are caught and if you do it again, you will be considered to have done it knowingly and on purpose.]
- A person cannot be sued unless there has been a specific complaint lodged against his/her acts.
- The government and claimants must consider ways to ensure that the application of this law doesn’t unnecessarily restrict people’s use of the internet.
- Claimants must issue warnings first before they attempt to sue an infringer.
Please note that my above interpretations are based on my reading of the source files below. Please “read at your own risk” and double check before you base any legal decision on them, as I could very well have made a mistake or misinterpreted meanings!
This is great, thanks for sharing this through the Librarians email. I will pass on your account to my colleagues.
Kevin Johnson, Osaka YMCA International School
“In order to prevent this law from unnecessarily restricting people’s use of the internet, the following conditions apply:
4. Claimants must issue warnings first before they attempt to sue an infringer.”
Can you verify that #4 [above] is actually included in the revision of the law. This is the first time I’ve read anything concerning “warnings” from claimants.
We don’t have a “strike” system in place here in Japan a la France or the U.S., but even one warning might be enough to put my mind at ease. . . .
The Agency for Cultural Affairs (http://www.bunka.go.jp/) published the first source that I listed above. That source is a series of questions and answers. The final question is [paraphrasing]: “Won’t this law make it difficult to use the internet?”. The answer given includes most of the information that I included at the end of this article. The statement about giving warnings is also from that source. The wording says [paraphrasing]: “It is thought that due warning will have to be issued by the claimant before the claimant can sue for infringement.” I believe it is worded in this way because the law will have to be tested in court before anyone can say for sure how it will be interpreted. The law does specifically say [again, paraphrasing] that the application of this law (to punish people with fines and imprisonment for infringing copyright) must be done in way that doesn’t unnecessarily restrict people’s use of the internet.
Here is the relevant text in the law.
Issuing warnings is given (by this official government agency) as one potential form that “consideration” might take.
So, to answer your question, the part about the warnings is not in the actual law (although it is a reasonable interpretation of the law given by one government agency that deals with copyright), so it’s better not to depend on the idea that a warning will be issued.
Thanks for taking the time to answer my question.
Sadly, however, the implementation of the new law remains murky at best. The new law [or rather revision to an existing law] concerns issues of copyright infringement. But The Agency For Cultural Affairs — the government body entrusted with issues of copyright — is forced to preface its explanation of the law by saying, “It is thought that. . . .” Which is another way of saying, “It’s our best guess that. . . .”
Quoting you: “The law does specifically say [again, paraphrasing] that the application of this law . . . must be done in way that doesn’t unnecessarily restrict people’s use of the internet.” The key word here is “unnecessarily” — and it’s anyone’s guess as to what that means in the context of the revised law.
It would almost appear that this revision was drafted and passed into law with little consideration as to how it would be implemented [possibly, as you suggest, with the aim of letting the courts sort it out]. Which possibly may be what the legislature had in mind all along. But if so, one wonders if the draconian punishment stipulated in the new law was such a good idea.
Dear Shaney! Can you give me the exactly name of the new law of Japan and the number of the article regarding this problem? Thank you so much!