That’s pretty interesting, since it means that fantranslations of games released before 2003 can possibly become legal, if there was no commercial English translation, and the copyright owner is asked and doesn’t allow such a translation, and if copies of said game are still being “widely” available.
They still have to request and be denied or unable to contact the copyright holder.
…*
I did mention it is provided that “the copyright owner is asked and doesn’t allow such a translation.”
Also, it’s still a legal way to explore, one that fan translators should: contact the copyright owner and discuss about the matter.
Doesn’t that section simply state that signatory countries have the option of implementing that mechanism through domestic legislation? Articles II and III of the Berne Convention (which I believe supersedes the UCC) provide a similar mechanism. However, I can find no such provision in US Copyright Law. You also bring up fair use, which is a different matter. Copyright holders can always sue in fair use cases, but fair use provides the defendant with a line of reasoning to argue in court, I believe. Basically, copyright owners still have grounds to sue, but you have the ability to win the case by correctly applying fair use. However, the burden of proof is on you to convince the judge that it is fair use, and not on the plaintiffs to prove that what you did is not fair use.
“…but only subject to the following provisions…” means that part is not optional.
I took a look, and they do. So it still applies.
Doesn’t have to be a provision in the US Copyright, as the provision is in the international agreement. International Law = National Law, when signed by the federal government.
I can sue you for being racist. It doesn’t mean that I’m going to win - or that it’s remotely true - but I can file a law suit. You have to acknowledge the case, and if I get us a court date and you don’t show, you’re in trouble… even if my lawsuit is totally going to be proven wrong. One can file a case for anything, so that’s really not changing anything.
As for proving Fair Use: it’s actually pretty easy when legit. However corporations can make a case drag on for years, draining the defendants resources, and having them file for a plea bargain to end the case. Standard business tactic really. However there’s a long line of reasons why a Japanese eroge company would not want a long lasting legal battle of that sort: ranging from they might not have the funds, it would generate the kind of negative media attention they don’t want, Fair Use is actually legitimate, etc. If they lose the case, your counterclaims for legal fees and hardship is likely to put them out of business. It’s not easy for them either: to file a suit under the US legal system, it goes something like this:
Step 1: Send a C&D notice.
Step 2: When the C&D is ignored… after 90 days I think… a lawsuit can be filed. Usually around the same time the lawsuit is filed, the owner will ask for an injunction to forbid whatever the C&D is about. It may or may not be granted.
Step 3: The actual case can take place… which might be months or years down the road. Prosecutor must send a physical representative, as the defendant has the right to know his accuser.
The translation clause of the copyright laws, is between Step 1 and Step 2. To file an injunction, the damages must be stated… which the lack of a translation in seven years, kinda makes it hard to argue for the geographical area. In addition, criminal charges [u]CANNOT[/u] be brought against nonprofit translation for private use. Mere translation is not infringement.
Also I think you’ve misunderstanding the legal system: the plaintiff has the burden of proof. The defendant is still innocent until proven guilty. They must prove you possess what you supposedly copied. They must prove you had malicious intent. They must prove similarities between the original and the copy. They must prove no domestic or international copyright laws, interfere or counter argue what they claim. Most ironic of all: they must provide their own translation of the work and compare it to accused translation. The defendant isn’t going to Japan; they’re coming to you. Lastly, unless I’m mistaken, many members of translation groups aren’t all from the same country. Two members might be from the US, one might be from the UK, two others from Singapore… so that alone takes a lot of wind out their sails.
A translation in of itself is not illegal: but a fanlation would be illegal, if it fails to adhere to the provisions of copyright protection. What is the goal of the fanlation in question, how is it organized, what is the process it is achieving the translation… so forth and so on. For example: creating a translation from a file dump, is automatically copyright infringement. You directly took their material to make your derivative work. You can obviously translate it without a file dump (doing it “by hand” as it were)… not many fanlation groups are going to do that, because the alternative is a total pain in the butt and way to time consuming. Well… that shortcut is a theft factor. Also making a “translation patch” that turns a Japanese game into English, is also copyright infringement. Doing that has NOTHING to do with translation. It’s violating all sorts of things. I’m not arguing that an unofficial translation would be easy or accommodating - it’s not supposed to - I’m just pointing out that translation legally is possible.
That’s the common sense mechanism and fanlation groups thinking they’re entitled to more than they have, that I was mentioning previously.
Something like this would be legal:
Sakura Taisen V Episode 1 Translation
But making a fanlation patch using that material for Sakura Wars V is not (even when the game wasn’t out). There’s a huge difference between translating for nonprofit private use and editing someone else’s property without their permission.
Seems to me that the most legal way to create a fan translation patch is to do it in a country (i.e. by buying a virtual server) that is not a signatory to the Berne convention.
There are not many countries like that, as you’d probably expect. I’d probably consider Tuvalu because it has an internet service provider.
On the other hand, why bother? Your translations can be as ‘legal’ as they need to be if you comply with C&Ds and the like and there are plenty of ways to help mitigate the risk. It’s really up to what you consider to be right.
You are not reading the full sentence. It says:
“However, any Contracting State may, by its domestic legislation, restrict the right of translation of writings, but only subject to the following provisions”
I’m reading that line (in context of the line preceding that line) to mean:
“However (in contrast to the exclusive right of translations being granted to authors), any Contracting State may restrict [through] domestic legislation the right of translation of writings (as in, restrict the author’s rights) [provided that] the following provisions [are held].”
“to substitute for the exclusive right of translation provided for in Article 8 a system of non-exclusive and non-transferable licenses” also seems to indicate that they can institute the system you described by choice. Furthermore, those articles are found under the appendix “SPECIAL PROVISIONS REGARDING DEVELOPING COUNTRIES”. That makes sense to me, because they’re allowing developing countries to publish translations of works despite standard copyright because they might not be able to receive translated works otherwise.
The reason I mentioned this was because in the UCC, the what-I-claim-to-be-optional provision has to be enacted through “domestic legislation”.
That is correct.
I’m not sure that’s necessary for a basic copyright infringement case.
Here is where I disagree. They have to prove that what the defendant has done falls under the basic definition of copyright infringement. However, it is not the plaintiff’s burden to prove that the defendant’s use does not fall under fair use. Wikipedia, if it could be trusted, states:
“The Supreme Court of the United States described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc…[15] This means that, in litigation on copyright infringement, the defendant bears the burden of raising and proving that his use was “fair” and not an infringement.”
Sure, and we can also argue that cops are probably not going to give a jaywalking ticket to 10,000 people crossing the middle of the street at once. That doesn’t mean that jaywalking isn’t illegal.
Indirect use is still copyright infringement; it is still a derivative work. It’s kind of like the difference between remixes of songs and arrangements of songs. One is a direct use and one is an indirect use. Of course, a copyright holder is likely to be more angry at direct use of materials than indirect use.
Last I checked, companies that sell console games and DVDs don’t block webpage access to visitors outside their region.
Despite your heartfelt plea, the evidence as a whole seems to suggest an attitude of xenophobia, at least in the case of minori. Look at their statements and their actions, and read between the lines. You may not agree with other peoples’ interpretation, but given minori’s often sarcastic statements and questionable actions (vandalizing a public wiki? come on…), you should be able to see why some people might come to such a conclusion. Of course it’s hard to verify this attitude, because I can’t read Japanese well enough to actually surf the Japanese interweb and see what people are saying behind the scenes. What snippets I have seen in English suggest an attitude of xenophobia at least among some fraction of the Japanese eroge fanbase.
At the very least, the reaction of some eroge companies to the Rapelay affair of banning foreign IPs represents an attempt to “sweep it under the rug” as it were. This idea comes from the misunderstanding that their vocal detractors in the West are complaining that such games are visible in the West. This is incorrect. They’re complaining that such games are a fundamental violation of human rights, and should not exist at all. Banning Internet access only fuels the idea that these Japanese companies have something to hide–it’s tantamount to an admission of guilt.
I guess my question is: can someone be xenophobic and still like visiting foreign countries?
And minori doesn’t force you to buy a different hardware in order to play their games. So what? It’ still the same logic: you’re not supposed to play, watch or enjoy a product if you’re not from the right country, so companies do their best in order to prevent you to.
I mean, as far as minori is concerned, the product in question is a software, with downloadable updates and resources available from their site, so it’s not much different from Sony US blocking access to its US servers from consoles not from the US (what they may do and no one would see anything xenophobic about the matter). Similarly, I doubt you’d accuse Blizzard of being xenophobic if they block their US servers from users not from the US (which they may indeed do), which is exactly what minori is doing. What about crunchyroll who blocks access to the parts of their catalog from users not from the correct region? LAIN-SAMA! It’s so xenophobic!
Right, you show that indeed context is important. There are valid logistical reasons for maintaining locale-specific servers that deal with high levels of traffic. Region locking on consoles and for DVDs is a form of license protection that’s supposed to maintain and enforce the domain/rights of localization companies. It’s more difficult to explain away the combination of blocking foreign IPs, actively discouraging foreigners from purchasing their products, killing fan translations, vandalizing/trolling foreign wikis, and generally trying to wipe their games off the map of foreign notice–all in response to pressure from political extremists inside and outside their own country. Trying to preserve your IP for future localization deals is one thing. But minori’s actions to this point do not suggest this is the case, at least in my view, despite their rhetoric to the contrary. I would suggest that their motives are political rather than commercial.
And it’s not like this kind of response is unique. Mangagamer, a localization company for Christ’s sake, was refusing to give demo CDs to some American women at Anime Expo 2009 (they’ve since apologized). Presumably their reasoning was that American women were likely to get upset by the content and cause commotion (my communication with them corrobrates this conclusion). I’d also categorize this sort of measure as a type of xenophobia/isolationism, unless it’s customary in Japan to refuse eroge-related promotional materials to women.
The problem is that you’re viewing minori’s responses as all being interrelated. They are not.
You can easily divide them up into two categories:
- Hide eroge from overseas
This is a response to the RapeLay incident. Apparently their government recommended this, and as you’ve seen, minori aren’t the only company to have taken this step- at least one company apparently doing deals with MangaGamer has as well. - Stop abuse of their copyright
This step is important if they are ever going to consider localisation (protecting the value of the licenses), and it’s something important to minori in general - the fact that the people who have their copyrighted material up on a public website are foreigners has nothing to do with the fact that minori asked them to take it down. How about the legal action minori took against ExtractData? It’s the same sort of thing. Are you going to claim that was xenophobia? The author was Japanese! Next, it’s not like they’re the only company sending C&Ds to foreign translation projects - and the fact that it’s a translation project is incidental. The important thing is that stuff that people pay for (the game scenario) is being put up on the Internet for free! If they weren’t bothered by that it would be strange!
I think you’re thinking too hard 
It’s a pretty big leap to go from “not wanting to cause commotion and upset people” to “being xenophonic and/or isolationalist”.
Didn’t ef ~ the first tale have something in the software that tried to keep foreigners from playing it? I mean beyond the usual changing of unicode settings. That was 2006, long before the RapeLay scandal. What was their reasoning then, if not xenophobia?
Region locking has pretty much ceased in the console industry. Also in Japan where World of Warcraft is nonexistent as a retail product, I can still login to my account if I bring my WoW cds or account credentials with me. I can even pay for it from Japan. Blizzard wont’ stop me. My friend plays on WoW Europe and all I need to do is change a little string of text in my client and I can play on my European account. Blizz hasn’t done anything about it yet.
It’s pretty stupid to deny your foreign customers, if someone is willing to pay the S&H fees and order your game, that’s more money for you, why stop them? Overall xenophobia or not, Minori’s activities have been immature. The defacement of that wiki is a good example, they could’ve just asked nicely.
It might have been a bit of a stretch to suggest they are outright racist, but we live in a world where intonation and nuance is everything. You can’t deny that the way they have worded their statements about foreigners accessing their site has been patronising and disrespectful and it is from this that I jumped to the conclusion that they are xenophobic. Why try so hard to prevent foreigners from playing your games? What do you have to gain from preventing them? From my point of view, if someone in America wants to buy my games, that is more of a gain than attempting to alienate them and patronize them.
Honestly part of me wishes people would ignore the C&D minori sent and just wage a cyber war with them and get them exactly the kind of negative attention they are trying to avoid.
They don’t have the money or the resources to deal with American courts and lawyers, there’s nothing to fear.
Correct, although it was just a timezone check - eden* did more. Anyway, why is it not xenophobia? For the same reason the region locks on things like console games, whether said games have any plans for overseas release or not, are not xenophobia. None of this is really new at all - is it that odd when an eroge company starts doing it? Yes, it’s annoying, as it was annoying when I tried to play Natsuyume Nagisa and couldn’t. But to say that it’s xenophobia is ascribing something to malice which plainly isn’t. Like I said, eroge companies, like any companies, don’t think in those terms! They make business decisions! They may not always be the correct decisions but they are not motivated by a fear of people that look different.
No it hasn’t. Try sticking your copy of steins;gate - or ANY different-region game - into your unmodded (non-Japanese) Xbox 360 and then tell me it’s ceased.
PS3s aren’t region locked. I just think it’s unusual that region locking is even considered an acceptable practice in the PC game industry where such practices have not been traditionally used for years. I only know of the PC eroge industry attempting to limit games by region. Everyone else doesn’t care.
I ask why care in the first place? You still make money. A sound business decision is to accept profits at any cost. While in modern times we are bound by things like corporate social responsibility a bunch of foreigners buying minori games will not harm your business. There should be no reason to deny yourself these profits.
The PS3 is not the only console.
Now, look, I’m not defending region locking. I’m not even defending minori or anyone else that partakes in this barbaric practice. I think it’s terrible! I hate it.
But it’s NOT MOTIVATED BY XENOPHOBIA, WHY CAN’T PEOPLE UNDERSTAND THIS? Japanese companies are not six year olds throwing a tamper tantrum. They are companies, probably run by a bunch of old men that look at numbers and look at trends and try to make sensible business decisions from their lofty towers. Yes, they don’t always make the right choice, but they don’t hate the colour of your skin. Hell, even if they do, it doesn’t affect the way they do business.
Maybe you’re right. But I feel that Japan related business decisions are usually made within xenophobic context. For example, explain why foreigners are not welcome to use some of the sex services provided in a place like Tokyo for instance? The otaku community that fuels the eroge industry with money is predominantly associated with 2ch.net. Ever read it? A great deal of these people are notorious racists. Is it so much of a stretch to think that maybe some people who started out on 2ch may have founded eroge companies in their lifetimes?
Seriously, bring up reasons like regionlocking all you like, but I think that minori has made irrational business decisions rooted in prejudice and fear. The opportunity cost of denying foreigners access to your site and trying to erase yourself from international existence is greater than allowing them to see you. It would be like driving an icecream truck and choosing not to drive through a particular suburb despite being sent letters that people would like to try some of your icecream.
HOW exactly does a foreign localization firm even find out about minori who is as you say open to the idea of licensing if their site is blocked?
Arudou Debito may be a little crazy but his site makes a fine point, there are plenty of businesses in Japan that exclude foreigners and sex establishments aren’t the only ones.
Yes, but the business decisions themselves are not xenophobic. If anything, they’re made because the other patrons are xenophobic and complain about it.
It is, as far as I can tell, illegal to make your establishment JAPANESE ONLY - however, it’s not xenophobic.
Why is this distinction important? Because working with the wrong facts hampers intelligent decision making. It hampers your ability to find a solution to the problem - how to get minori on-board for licensing, for example. If they’re xenophobic you might as well just give up - which would be the wrong decision.