9a. Copyright, Scanlation, and the Ethics of Unfettered Reading

Normally on the WIM blog, I prefer to interlard my political opinions with fine shavings of self-deprecating wit and snark, so that a casual reader might simply regard me as, if a clown with ideas, ultimately just a clown.  But today, I have brought along my imaginary soapbox, so that I can tackle what I feel is ultimately a rather pernicious argument about amateur translation of manga (especially in its “scanlate” form), a perniciousness that stems from rather shallow knowledge about what copyright–and intellectual property (IP) more generally–is and how it functions as a form of both legal and social control.  I have decided to include Andria Cheng, translator of numerous bestselling manga, in this series, because I will be speaking primarily from the perspective of a reader and scholar, so I thought it would be good to counterbalance my thoughts with those of a translation professional.  But first, a shameless plug for the third installment of my own translation dub of Shirato Sanpei’s Ninja bugeichō, in case you’re unclear where I stand on the issue of amateur translation.

Scanlations are “Illegal”

In nearly all discussions of scanlation, be it pro/con/mixed, critics high and low feel the need to point out that what scanlators (i.e. groups who scan original Japanese texts, “clean” them in Photoshop, translate the text, and reinsert that text back into the images before distributing it) do is technically illegal.  This is true-ish, but before proceeding to their actual point, which almost never has anything to do with the legality of the act, they generally skip over precisely how it is “illegal” and often, to the detriment of their own argument, construct a false analogy with criminal law, which functions in an entirely different way.  But before getting into that, a little reminder of the history of copyright (for our purposes here, in the US) and how it reflects a shift in what copyright is designed to do.

The Constitution gives Congress the power to grant copyright for a limited time.  The specifics of what this entails were later codified in the Copyright Act of 1790, which included many provisions that simply no longer attain: 14 year period with a possible 14 year renewal, requirement for registration, and, manga readers take note, explicit non-protection for foreign works (sec. 5).  Furthermore, the first Supreme Court case on copyright, Wheaton v. Peters, held that while an author held control over first publication, this did not necessarily extend to subsequent reproduction once the initial run had ended.  I point these facts out, because none of this would fly in a modern court, for if the 19th century was a history of the limits imposed upon copyright, then the 20th was a history of nigh absurd expansion.  Some try to make arguments about copyright that border on questions of morality (you’re stealing!), of which one ought always to be suspicious, for we conscientiously as a culture, or at least our bodies of government representatives, have chosen little by little over time to slide the scale of balance between those who hold copyright at a given time (NOT owners/creators, mind you) and those who do not exponentially toward the side of holders.  Much of what is claimed nowadays to be the inalienable right of creators was not even a legal right as recently as 100 years ago.

The philosophical underpinning of copyright law, as stated in Article 1 section 8 of the Constitution, was 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,” which sounds well and good, except nowadays this is used as a mere pretense to defend corporate interests, Disney and other media conglomerates in particular, who hold the copyrights to IP they often had no part in creating or facilitating long after those who did create them have died.  This is doubly despicable when you consider how, in American comics at least, characters and works were treated as work for hire and as such the original creator profited from them little, if at all (meanwhile Disney is making billions [with a b] off its Marvel comics “properties”).  Copyright extensions and revisions are called “Mickey Mouse laws” for a reason.

It is also a mistake to equate copyright law (which falls under tort, i.e. civil law) and criminal law.  Johanna Draper Carlson, in a blog from a few years ago, tries to equate scanlation practices with not obeying the speed limit, in an effort to explain if not defend the practice, because scanlation, like speeding, is not perceived as having a meaningfully negative impact.  Exceeeeeept, if an agent of the state observes you breaking the law, s/he is obligated to submit you to legal proceedings (i.e. turn you in to the authorities).  This means that the state, ideally, enforces the law with complete indifference to the will of those involved, which is why a prosecutor might charge the “adult” 18 year old boyfriend or girlfriend of a 17 year old “minor” with statutory rape, contrary to the express objections of the parents of both individuals or even the community at large.  In a civil case, the burden of “enforcement” lies on the offended party, in this case the copyright holder, which has a whole host of consequences for the supposed offender.  Moreover, copyright is not exactly clear cut.  In tort law, the plaintiff has to establish three things: 1) that there is an expectation of a particular behavior (i.e. don’t copy and redistribute), 2) that the behavior in question actually violates that expectation (i.e. actually copies and redistributes), and 3) that the plaintiff has suffered loss or injury as a result of the behavior (i.e. copy and redistribution demonstrably harms future sales).

Now, one could try to show, especially in the case of more obscure manga titles, that the original creator had no intention of trying to translate and distribute his/her creation in the US at all and that, therefore, there is no demonstrable injury or loss, be it real or potential.  Also, the fact that one might not be profiting from the creation of such a derivative work factors into the subsequent decision.  If such an argument were to succeed (and there is no guarantee it would not), it would have no effect on the copyright statutes themselves, for civil cases are, for the most part, remarkably situational, so the absolute right and wrong arguments one so often encounters, seem to be addressing some principle that, legally speaking, does not exist.  Now, the fact that such an argument on behalf of scanlation has never been made in court, demonstrates that the practice of copyright enforcement by holders has a far greater influence on people’s behavior than statutes and legal decisions.  In a criminal case, if you are charged with an assault, the state incurs the cost of your defense, should you be unable to provide one for yourself.  In a civil case, no matter which side you are on, you always incur the legal costs yourself.  Large media companies, the ones actually engaging in legal action (NOT the creators), often have to do little more than threaten a lawsuit (or send a cease and desist letter) to elicit the desired behavior, even if they think they can’t win in court, because they know the defendant lacks the financial resources to defend him/herself and will thus back off, even if legally they are not obliged to do so.  Scanlators generally cannot defend themselves and often lack the necessary legal knowledge (or access to a professional) so as to ascertain which legal threats have teeth and which do not.  There may be ways of doing scanlation without express permission that do not violate copyright; it’s likely we will never know what they are, since the publishers hold (nearly) all the cards.

Copywrongs and Reading v. Consuming

Publishers and the industry they constitute have little interest in working productively with the communities of readers upon whom they are reliant, in part because they simply see them as mindless consumers.  Jake Forbes, in a blog post from 2010, summarizes the, to my mind, corporatist mindset that plagues fandom with its condescension.

“Argue all you want about whether or not scanlations are a net positive for the industry, but the simple truth is, YOU AREN’T THE INDUSTRY—YOU ARE THE CONSUMER. You can’t know because you don’t have the facts. You don’t know the true cost of making manga, so how are you qualified to know the harm that lost sales causes? As I covered before, I whole-heartedly believe the Japanese manga industry is doing itself a serious disservice by not leaping to fix the system. Baby steps like releasing all of ONE mainstream series simultaneously in English and Japanese is a joke. A noble joke, but a joke nonetheless. Is free, ad-supported online manga the future? Maybe. But unless your name is Tite Kubo [creator of Bleach] or Shueisha Publishing Co. Ltd. [publisher of same], you have absolutely no right to make that leap for them.”

To be fair, Forbes takes Japanese and American publishers to task as well for failing to meet consumer demand, and the blog is well worth reading in its entirety.  But he makes quite clear that he sees manga readers’ desire to, you know, read a wide variety of texts as an exaggerated sense of entitlement and that readers ought to be more than happy to acquiesce to the terms of access the industry dictates.  Exceeeeeeeept, this is again a misrepresentation of the reality of how one often comes to read something.  In Japan, there are far more ways to read manga than just buying it off the shelf, either in an anthology or bound collection.  Weeklies and monthlies are regularly discarded on trains and in public places, mobs of students stand for hours in used bookshops reading whole volumes they never intend to buy, manga cafes have large libraries one can read merely for the cost of entry, in the 50s and 60s there were manga rental shops where one could read several volumes for pennies, etc.  All these modes of reading were, even when “technically illegal,” tolerated.  In the US, people check out books from libraries, lend copies to friends, read whole volumes in bookstores, and so forth.  The overly simplistic conflation of reading with consumption shows, to my mind, how the corporate interests that “protect” creators see readers only as potential profit to be exploited in whatever manner they see fit.

Forbes makes a rather chilling statement, one that is indicative of how the historical prerogatives of a reading public have been thoroughly eroded: “freedom to discuss copyrighted works is not the same thing as freedom to access them.”  I’ll return in two weeks to discuss the far-reaching ramifications of this mindset, but…

Next Week: we will hear from the illustrious Andria Cheng, who will give us an insider perspective on what manga translation is actually like.

Stay Tuned!

contact me: uahsenaa@gmail.com

2 comments

  1. […] you can imagine, given what I have said with regard to copyright on previous occasions, that last one struck me as, to be frank, entirely out of line. […]

  2. […] 9A. COPYRIGHT, SCANLATION, AND THE ETHICS OF UNFETTERED READING […]

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