The controversy over the government’s aborted plan to revise the copyright law to make it illegal to download all types of content illegally placed online — as long as the downloader knew the material was pirated — once again highlights the complex issues involved in the effort to crack down on piracy websites that violate the interests of copyright holders. The government cannot evade criticism that it acted too hastily — with only three months of discussions by a Cultural Affairs Agency panel — after its earlier plan to legalize blocking of access to piracy websites went nowhere due to the risk that such a move could infringe on the right to secrecy of communication. Those responsible for combating the piracy problem should heed the concerns raised over the planned amendment as they explore effective measures that can obtain the broad support of the parties involved.

The government reportedly gave up submitting the proposed copyright law amendment during the current Diet session as it failed to win the endorsement of the ruling Liberal Democratic Party — after experts as well as organizations representing copyright holders voiced concern that excessive regulations could unduly deter the activities of internet users and hinder the free exchange of information on the web. It is the second time in only a year that the government’s efforts to crack down on piracy websites have been put on hold.

A sharp increase in the number of piracy websites, which provide viewers with free manga and anime content without obtaining the consent of or paying royalties to the copyright holders, is a growing problem that is estimated to cause damage worth tens to hundreds of billions of yen to copyright holders and their publishers. In April last year, the government took action against three particularly malicious piracy websites, urging internet service providers to voluntarily block access to them in an “emergency” measure. It then sought legislative steps to back up such a measure, setting up a panel including representatives from the publishing and communications industries as well as legal experts to discuss the matter.

But members of the panel remained divided over legalizing the blocking of access to piracy websites due to concerns that such a measure could violate the secrecy of communication guaranteed under the Constitution because web users’ internet activity must be monitored to identify which websites they’re trying to access, and then block those that engage in piracy. In October, the panel gave up trying to reach a consensus on the issue.

When the Cultural Council, an advisory panel to the chief of the Cultural Affairs Agency, took charge of the discussions, the focus shifted to amending the copyright law to prohibit the downloading of all types of illegal content while knowing it had been uploaded without the consent of copyright holders. So far, it has been made illegal to download pirated music and video content, but the amendment would have expanded the ban to other copyrighted material, including manga and other publications, scholarly works and photos. Malicious acts such as repeatedly and continuously downloading pirated material would be punishable by up to two years in prison or up to ¥2 million in fines, or both. The proposed amendment would also provide for punishing the operators of sites that list hyperlinks for piracy websites.

However, widespread concern has been raised over extending the regulations to all types of material on the web, which might result in hampering the free exchange of legitimate information. Since it would be difficult for users to know whether the materials they are trying to download (including screenshots) have been illegally uploaded, experts warn that the sheer idea that people might be punished for downloading the content could discourage them from using the material for their private research or creative activities. Opposition to the amendment also came from organizations of copyright holders, including manga artists, that have called for cracking down on piracy websites. Others have raised doubt as to whether the revision would serve as an effective deterrent since there have so far been no cases of people being caught downloading pirated music or video content — an activity that has already been made illegal.

Urgent steps need to be taken against piracy websites, which inflict massive harm on copyright holders. But caution is also needed on introducing broad regulations that could have various side effects on internet activity. Officials involved in the discussions should explore adapting the proposed measure in view of the concerns voiced by various quarters, such as narrowing down the scope of the regulations to acts that are pertinent to the fight against piracy websites or other activities that damage the interests of the copyright holders.

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