Back in August, I covered the Trans-Pacific Partnership’s section on intellectual property and how that stands to affect the otaku community. Since then the 12-nation deal on the Trans-Pacific Partnership has been reached, and a few things have changed.
To recap, the Trans-Pacific Partnership is a trade agreement between 12 nations on the Pacific Rim: The United States, Japan, Canada, Mexico, Australia, New Zealand, Malaysia, Vietnam, Peru, Chile, Brunei, and Singapore. Among the topics the TPP addresses are lowering trade barriers, enforcing labour and environmental standards, and creating a common baseline on intellectual property issues. The latter is what concerns the anime fandom.
Unless sponsored by the companies that own the IPs, cosplay, AMVs, fanart, and doujinshi are all technically copyright infringement. As copyright is largely a civil issue, as opposed to a criminal one, the companies that own the IPs can choose whether or not to go after individuals using their IPs for such purposes. As cosplayers, AMV creators, fanartists, and the like often drive popularity for the IPs they use in their craft, publishers often choose not to pursue them.
The Trans-Pacific Partnership agreement was reached on the 5th of October, with the chapter on intellectual property being leaked a few days thereafter.
Since I covered the issue in August, the language of the Trans-Pacific Partnership’s IP agreement has changed. The draft stated:
Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale.
And added that “willful copyright or related rights piracy on a commercial scale” includes:
significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain; and willful infringements for purposes of commercial advantage or [AU/SG/PE/JP oppose: private] financial gain.
That’s to say that infringement of copyrighted works would be criminalized, regardless of whether or not the people committing infringement stand to make any money.
The finalized language of the agreement reads as follows:
Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale. In respect of willful copyright or related rights piracy, “on a commercial scale” includes at least:
(a) acts carried out for commercial advantage or financial gain; and
(b) significant acts, not carried out for commercial advantage or financial gain, that have a substantial prejudicial impact on the interests of the copyright or related rights owner in relation to the marketplace
So, there’s a bit of a difference in the finalized language. As I understand it, what it’s saying now is that, at minimum, copyright infringement only becomes criminal when it’s carried out to make money or when it has a significant effect on the rightsholders. Presumably, rightsholders still retain the right to pursue legal suits against people who infringe upon their copyrights.
So, what does this mean for otaku? In my understanding, what this means is that most of us are safe. Those of us who make fan material without making money from it will continue to only be subject to voluntary legal action by the rightsholders. Those who profit from their endeavours, however (fanartists selling art, doujinshi artists selling at Comiket, etc.) could be criminally prosecuted if the agreement passes their respective nations’ legislatures, as infringing upon copyright for financial gain would become criminalized under the Trans-Pacific Partnership standards.
The finalized language is still ambiguous, however. The parameters of “a substantial prejudicial impact” aren’t defined, and it’s still unclear how this will affect the US’s fair use doctrine, which many content creators in the anime community (Especially reviewers and critics) and beyond rely on to create their media.
The Trans-Pacific Partnership still needs to pass the legislatures of its member nations. The decision for the US Congress could take place as soon as 2016.