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Japan toughens up on Internet regulation

by Chris Salzberg

In a country with one of the world’s most vibrant Internet cultures, rumblings of change in the way that online information is managed, controlled and regulated is causing concern for many.

A series of reports and meetings last month signaled a potentially far-reaching transformation in the legislative framework regulating Web access and file-sharing in Japan. The transformation, should it happen, promises to bring to an end the days of the country’s largely hands-off approach to online communication, ushering in an era of increased government involvement and heightened user liability.

On Dec. 6, the government released a final report, compiled by a study group set up by the Ministry of Internal Affairs and Communications, which set out plans to monitor and regulate the Internet in Japan. The proposed regulation targets all Web content, including online forms of traditional media such as newspaper articles and television broadcasting, while additionally covering user-generated content such as blogs and Web pages.

Days later, at a meeting on Dec. 10, the same ministry requested that mobile-phone carriers NTT DoCoMo, KDDI, SoftBank and Willcom commence filtering Web access on mobile phones for users aged under 18. Responding to concerns over online dating sites, the filtering policy is broad in scope and covers forums, chat rooms and social-network services.

File-sharing, meanwhile, was the topic discussed on Dec. 18 at a meeting of the Private Music and Video Recording Subcommittee of Japan’s Agency for Cultural Affairs, a body under the Ministry of Education, Culture, Sports, Science and Technology. Authorities pushed for a ban on the downloading of copyrighted works (particularly music and videos) for private use, currently permitted under Japan’s Copyright Law.

Taken as a whole, these moves reflect a shift in what authorities consider socially acceptable, and legally permissible, in the evolving realm of online interaction.

Motivated by lofty goals — upholding the common good, preserving safety and security, compensating creativity — attempts to rein in the disruptive nature of modern Web technologies nonetheless run counter to basic properties of online information.

Chief among these, and central to plans for regulation, is the assumption that online activity can be categorized.

Before the days of YouTube, “broadcast” was a term relegated in Japan to the transmission of television and radio, an area dominated by NHK and major commercial TV and radio stations. Legislation of broadcast media historically strives to balance freedom of expression with the welfare of society as a whole.

Communication, on the other hand, historically meant point-to-point transmission via devices such as telephones. Legislation of this area prioritizes privacy and prohibition of censorship, aspects of communication critical at the level of the individual.

What happens, then, when the boundary between “broadcast” and “communication” becomes technologically obsolete?

This is the central issue addressed in the Dec. 6 report on Internet regulation, and it is a pressing one. While traditional media continue to hold powerful sway in Japan, the race is on to deliver content “all over IP” (all online), and Japan’s powerful network infrastructure is already ready to handle it.

Against this background, the report sets out to define a legal framework unifying existing broadcast and telecommunications laws, endeavoring to apply elements of both realms to the Japanese Internet. It does so by categorizing online content under a series of headings — “media services,” “special media services,” “general media services,” etc. — and legislates it accordingly, paralleling existing law where categories overlap.

Where the report classifies the content of Web services, however, serious concerns arise. Under the title of “kozensei” (“content that has openness”), for example, a wide range of currently unregulated services become eligible for forced content correction or removal. Blogs, Web pages, and bulletin- board services such as popular Japanese forum 2-Channel all appear to fall in this group.

And yet the limits of the regulation are unclear, as the proposed categories, which borrow primarily from broadcast and telecommunications law, have little basis in the language of Web technology.

Nico Nico Douga, for example, is a video-sharing Web site, but it also acts as a kind of messaging service. Twitter is a messaging service, but is also a kind of blog; Mogo Mogo combines messaging and social-networking functions. Boundaries on the Web are constantly being redefined, blurring the line between “broadcast” and “communication.”

The proposed outlawing of “illegal downloads,” coordinated by a different group under a separate ministry, faces a similar conundrum. Currently in Japan, while reproduction of copyrighted information is illegal, copies for “private use” are allowed. In their bid to make Japan a “nation built on intellectual property,” government and industry groups are pushing to change this by revising Article 30 of Japan’s Copyright Law, aiming to ban all downloads of copyrighted material.

The problem, however, is that everything on the Web is downloaded. Just to view a page, a browser must store its contents on the user’s computer. Since it is impossible to know beforehand whether downloaded content is legal or not, any page view would, under the proposed revision, place the user at risk of violating copyright law.

Andreas Bovens, a Tokyo-based Belgian who blogs on copyright issues in Japan at chosaq.net, sees a danger in this situation.

“It seems like the main targets of this proposed new legislation are Web sites offering unauthorized chaku-uta (ring tone) or music downloads,” he says. “The message they seem to want to bring across is that downloading from those sites is illegal.

“However, although the scope of this legislation seems small, its effect is huge. It affects basically everything that we do on the Net.”

A similar tendency arises in the new filtering policy applied to mobile phones for underage users. In blocking access to Web sites considered dangerous to children, a net is thrown over the Web that snares a much wider range of content.

NTT DoCoMo, for example, has attracted criticism for filtering categories of content as sweeping as “lifestyles” (gay/lesbian), “religion,” and “political activity.” Classified under the heading of “communication,” youth-oriented game-download site Mobage meanwhile faces bankruptcy as a result of the filtering, which blocks half its user base.

Despite social and economic impacts, moves to regulate, manage and filter the Internet have attracted limited attention. Where there has been a response, it has mainly come through efforts on the part of active citizens and grassroots groups.

A Japanese blogger who writes under the name of tokyodo-2005, and whose in-depth coverage motivated many citizens to submit public comments to the government in response to planned Web regulation, argues that the government is attempting to stifle freedom of speech.

“This is a country where people have been detained for days just for distributing flyers,” he says. “If citizens are robbed of their freedom on the Internet, then there is a risk that they will lose their capacity to make political choices.”

The proposal to outlaw illegal downloads also attracted a response coordinated partly through Movements for the Internet Active Users (MIAU), a group established last October to raise awareness about the development and regulation of Web technology in Japan. Masayuki Hatta is one of MIAU’s original members.

“While regulation targets the negative sides of the Internet, there are positives to the Web as well,” he explains. “It has become a new space for innovation and creativity. They want to regulate the Net because of its negative side, but the way they are going about this is wrong, and the voices of users are not being heard. We wanted to do something about this.”

Yet while the government received more than 8,000 public comments — a relatively high number — largely opposing the proposed download policy, officials have described the revision of copyright law as “inevitable.”

Internet regulation in other areas is similarly moving ahead apace. Administrators plan to submit a bill on the unification of broadcast and communications laws to the regular Diet session in 2010. Default Web filtering on mobile phones for minors starts this year.

With all these changes, the Japanese Internet — the future medium of communication in Japan — may come out looking very different. Sadly, it may only be once this happens that its users, looking back with the benefit of hindsight, appreciate what they once had — and what they lost.

Chris Salzberg co-edits Global Voices, an international blog roundup, and also contributes to the Japan-based Web journal Gyaku.jp (gyaku.jp).