Anime Readings #1: Celebrating Two Decades of Unlawful Progress

If you look at Wikipedia page on fansub, the first citation you’ll see is the article “Celebrating the Two Decades of Unlawful Progress: Fan distribution, Proselytization Commons, and the Explosive Growth of Japanese Animation” by Sean Leonard. (Grab the paper here.) I’m writing this post to record what I learned from the paper, and I hope I can help you save some time.

Why is this paper important? Well, as far as I know, it’s the only peer-reviewed article that directly deals with fansubbing and its copyright problem, exactly the quagmire that we are all in. The main contributions of the paper are as follows:

  1. Despite being a legal paper, it gives a detailed history of how fansub started in the U.S. back in the 1980s, and recounts its relationship with Japanese anime companies. You might need this information to talk more deeply about fansubs. (You also get a lot of nice trivia on fansub history. For example, I was surprised to learn that an officer in the U.S. military was responsible for giving birth to a massive raw distribution network back then.)
  2. It formally presents the argument that fansub helps the industry promote anime, and gives supporting evidences. This means that, when you argue with someone on whether fansubs help or harm, you can use the rhetoric of this paper in the argument. I’ll talk more about this below.
  3. It suggests a practice that makes fansubbing of unlicensed anime legal, and justifies the practice in the light of theCopyright Clause of the U.S. Constitution.

Now let’s get on with some details.

Anime as Proselytization Common

Sean argued that, during 1976-1993. Japanese anime companies ignored American markets. There were many contributing factors:

  • They had bad experience with Hollywood companies like Disney and Warner Bros.
  • Dealing with foreign licensees and fans was not something they had done before, and, being risk-averse as they were, no companies would like to be the first.
  • An anime is actually owned collective by a group of companies: the TV broadcaster, the video maker, the production house, etc. Only rarely that one of them had enough fund and expertise to bring anime oversea. (It’s not said in the article, but I could guess that these companies do not cooperate with one another on foreign markets.)

The situation was dire for fans: they were not impressed with childish American cartoons, and Japanese anime companies were not considering shipping anime over to the US. They felt that they were left with no choice but to distribute anime illegally to spread it.

Sean used the word proselytization common to describe the use of fansubbed anime to make people interested in anime as a medium, or to make people interested in a particular series so as to build demand for it. Arguably, the raison d’etre of fansub groups back then was just that. For example, the philosophy of C/FO, the first Japanese animation club in the US, was to “show it to all of your friends to promote Japanese animation.” The ethic of not distributing an anime after it was licensed domestically also ran strong.

Sean recognized the benefit of fansubs as an agent for audience-shifting: by exposing anime to audiences Japanese anime companies ignored, fansubs increased commercial value of anime. Indeed, he pointed out that fansub’s success lead to the formation of three US anime publishers: ADV, AnimEigo, and Pioneer LDC. Noboru Ishiguro, directory of Macross, acknowledged American fans for making Maison Ikkoku well-knowned in Italy before it was shown on TV there.

Excuse It Until You Use It

Sean pushed for a regime of law that most fansubbers would agree to have: the government should not enforce copyright of an anime until it is licensed domestically. Many feel this regime is reasonable and fair, but how would one justify it when the copyright law is so strong? Sean answered this question by appealing to the reason copyright existed in America in the first place: The Progress Clause of the US Constitution.

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

His argument was on interpretations of the word “Progress” and “Times.” He argued that “Times” did not necessarily mean “from the creation of the work and going on for some continuous period” as we understand the scopy of copyright nowadays. “Times” can mean multiple periods of time, starting and ending at any moment. But how would the Congress select which “Times” to grant copyright?

Sean pointed out that, since “Times” is vague, one had to rely on “associated words,” and the word is “Progress.” Namely, the Congress may enforce copyright only at the times when it “promote[s] the Progress of Science and useful Arts.

Applying this interpretation to the anime situation, he argued that the Congress would do a better job promoting progress when it enforced copyright only after an anime is licensed in the US. That is, unless the anime is made publicly available in America at the same time it is shown in the Japan, enforcing copyright in this time would only make the anime inaccessible. Licensees would have a hard time selecting which anime to import, and the market of anime would arguably be a lot smaller. On the other hand, as seen in the above section, not enforcing copyright would build demand for the anime, and increases opportunity for domestic exploitation.

My Comments

You might notice that the issue the paper talks about seems rather obvious to us fansub watchers, but it does drive home some points.

  • First, fansub does help the industry. The industry was born because of it. The industry would make a lot less money if there were no fansubs. With all the freeloaders that fansubs generate as byproducts of fansubs, would Bandai sell as much Haruhi in America if people do not have access to the anime or people cannot understand it because of the moonspeak?
  • Second, making fansubs of unlicensed anime illegal would make everyone worst off.

On the downside, the paper only takes into account fansub activities from 1976-1993 and does not discuss digisub or P2P sharing at all. A lot of statements in the paper are not true today because the Internet changed the situation changed dramatically. For example, Sean argued that fans committed piracy partly because Japanese companies did not care for markets outside Japan back then. This is not true now, and we need a new account on how digisub affects the industry.

On another topic, as someone not in America myself, I’m curious whether the argument and rhetoric here works in other jurisdiction as well. I have never read the Thai copyright law, but I expect that it has no room for the liberal interpretation of the law we see in this paper.

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