A bill to revise the Copyright Law, which was submitted by the government to the Diet on March 10, is aimed at bolstering measures against piracy websites that release copyrighted works online without permission. If the bill is enacted into law, the act of downloading will be regarded as illegal for all copyrighted works if it is done knowing they are pirated editions.
I will hereafter distinguish what points should be heeded to differentiate between legal and illegal acts.
Criminal penalties
The pillar of the revision bill is to expand the scope of restrictions on illegal downloading of copyrighted materials. Under the current law, the range of restrictions is limited to music and images. The revision bill calls for extending restrictions to all copyrighted materials, including manga comics, books, academic papers, newspaper articles, illustrations and computer programs.
If these materials are downloaded while knowing they were uploaded without obtaining permission from copyright holders, the act will be regarded as illegal under the revised law and copyright holders will be able to take civil action, including filing a request for injunction and a damages claim for compensation.
If pirated editions of copyrighted works offered for fee are downloaded repeatedly and continually, it will be judged to be a heinous act subject to criminal punishment. Litigation by copyright holders is a prerequisite for indictment. If the accused is found to be guilty, they will be imprisoned for up to two years or be fined up to 2 million yen, or both.
Judgment by volume
There is still concern that the plan to expand the scope of restrictions to all copyrighted materials could shrink people's daily activities of gathering information online and utilizing contents.
For this reason, the downloading of materials whose volume and image quality are "negligible" as well as that of fan fictions and parodies will not be subject to restriction. Furthermore, "special cases that are judged not to harm the benefits of copyright holders unfairly" will not be subject to restriction, either.
The quantitative yardstick for "negligible" is that "the downloaded volume is extremely small in relation to the entire volume of a copyrighted material."
Typical examples of this are: one to several frames of a manga book with several dozen pages, one line to several lines of an academic paper or a newspaper story, and one to several pages of a novel with several hundred pages. Downloading of these would be judged legal. However, if the downloaded volume is about half of one episode of a manga, the entirety of a one-frame manga and about half of an academic paper or a newspaper article, downloading these materials would be determined to be illegal because these volumes cannot be regarded as negligible.
Image quality regarded as negligible applies to "image resolution that is as low as resisting appreciation." A typical example of this is a thumbnail image. Even if a piece of a picture or photo that can be defined as a work by itself is downloaded, it would be regarded as legal if the image resolution is coarse. The act of downloading clear images or high-definition photos would be judged as illegal.
In the case of taking a screenshot, posting a video, or live streaming with a smartphone, it would be regarded as legal even if the illegally uploaded images are photobombed incidentally with main subjects. But taking screenshots of illegally uploaded images per se, would be determined to be illegal.
Exceptional circumstances
Even if fan fiction and parodies are downloaded while knowing they were uploaded by fan-artists without obtaining permission from original creators, it would not constitute an illegal act. But if fan fictions and parodies are being reprinted by a third person without the permission of fan-artists, downloading such material while knowing they were uploaded without permission would be regarded as illegal because it's an infringement on the right of the fan-artists.
Whether there are "special circumstances" that are judged to be legal would be determined by considering two elements. One covers to what extent protection is needed by taking into account the kind of copyrighted material and their economic value, while the other concerns the conditions, including the purpose and necessity of downloading. Whenever the need for protection is lower and the legitimacy and necessity for downloading are higher, they are liable to be judged as "exceptional circumstances."
An example that would fall under this category is downloading, without permission, a fraud manual that is posted by a group of fraud victims on a site intended to promote protecting oneself and one's family. The manual is a copyrighted material, but fraud is an illegal act in the first place, so it can be said that downloading the manual does not infringe on the benefits of the copyright holder.
Regulations
The revision bill also calls for regulating "leech sites" and "leech apps" that steer internet users toward pirated materials. This is because the people who download pirated materials usually access websites for such works via leech sites and apps.
Linking up with pirated works and managing leech sites, and introducing and providing leech apps both come with a particular criminal punishment. The maximum penalty is three years in prison and a fine of 3 million yen for the former and five years in jail and a fine of 5 million yen for the latter. There are also cases in which both imprisonment and fines would be imposed. These criminal penalties are based on the litigation of a copyright holder.
Challenges to overcome
The government will bolster measures against pirated works on the internet because creators, including manga artists and writers, and the content industry have suffered serious damage.
According to the Cultural Affairs Agency, piracy websites that have thus far been confirmed by the Shuppan Koho Center, which consists of publishing organizations, is more than 500. And the total number of people who use piracy websites amount to as many as 65 million a month if the number is limited to the top 10 websites accessed from Japan.
Those read for free are not manga and magazine alone but range widely from photo collections and business software to games and newspapers.
If the revision bill is enacted into law, the prevention of damage can be expected but challenges would still remain regarding the eradication of pirated works from the internet.
One issue is how to deal with streaming piracy websites. The revision of the Copyright Law was initially triggered by problems involving the streaming piracy website "Mangamura" (closed in April 2018), which caused tremendous damage. But a legal restriction on streaming websites has been postponed because merely seeing and listening to content on streaming sites without reproducing it does not constitute copyright infringement.
To work out a drastic solution to the problem, a legislative step could be taken to make it possible for internet service providers to forcibly block access to piracy websites. However, some people oppose the idea of internet providers overseeing a user's connection destinations and blocking specific websites, arguing that it infringes on "the secrecy of any means or communication" as guaranteed by the Constitution. Hence, the government has been making little progress in finding concrete measures.
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