Week 14: Fansub Fallacies?

Scripted Affects, Branded Selves by Gabriella Lukacs, pg 105-209

In Week 3's discussion thread, I brought up the touchy issue of fansubbing. While there was much to talk about, a fact-less argument is no argument. Lukacs' chapter, "Conflicting Views on Media Globalization", however, brought to me the backings to my views in a very well summarized manner. The topic of fansubbing is a touchy one as it encompasses many borderline issues, most notably legality, ethics, and economy. When it comes to the general view of fansubbing, views are split. Companies call it black, fans call it white, and fansubbers call it gray. While Lukacs brought up a lot of food for thought, it only prompted me to ask more questions.

Japan has internal copyright laws that require the granting of explicit permission for the redistribution of copyrighted material within Japan and agreeing regions. Meaning the creation of a digital or physical copy of "J-doramas" is by law illegal. In Japan. But what about elsewhere, as Lukacs points out, particularly in regions where Japanese copyright laws are not respected as international? Japanese copyright laws dictate that it is the copyright holder's responsibility to file infringement claims themselves. But what of in North America, where Japanese copyright holders cannot easily make such claims? This could be settled if the production company chooses to republish the content in the US or sell licensing fees to a US-based distributor. But what if they explicitly choose not to for financial or other reasons? If they do choose to forgo their re-licensing privileges, do they still have the ethical grounds to procure copyright claims?

On the other side, international fans such as those in the US claim legality of distribution under "Fair Use" (Copyright Act of 1976, Title 17, Chapter 1, Section 107). The laws surrounding "fair use", however, are also internal laws applied to content distributed within the US. Hence, can US policies still be legally applied to foreign content. Is it ethically acceptable to do so? Considering that the media consumed is often done so for the purpose of entertainment as opposed to educational, does its usage and distribution still fall under "fair use" policies? The economic factor is often ignored when it comes to illegal activity, but when the price of imported Japanese content (or re-licensed content) is so high and out of the reach of normal budgets, where do consumer protection laws step in (or can they)?

As for the fansubbers themselves, most are careful to explicitly state that they do not, in any manner, own the copyright of the material that they are fansubbing. As Lukacs brings up, however, does said material cover the dialog that is being translated? Stating non-copyright ownership, however, does not grant redistribution rights. Apart from being illegal (per previous arguments), is it ethically acceptable, given the original copy-right holder's lack of initiative? Because no monetary gains nor any misrepresentations are made in fansubs, can fansubs be categories as "educational works" (again, the "fair use" policies)? If a j-dorama were to become licensed in another country, does the fansub groups use of a disclaimer and encouragement of further distribution give them any legal or ethical protection? Can they be held responsible for further distribution should it happen?