An Ill-Managed War

Zach Logan and Tsukento have some interesting points to make over at the One Piece podcast.  They claim manga now exists in a state of war, and in the wake of SOPA, with ACTA on the horizon, that claim is certainly not hard to swallow. Some of their specific assertions, however, are rather eyebrow-raising.

Zach writes,

It’s law that is so sacred that it’s in the U.S. Constitution. These laws are what make the works of Oda, Kishimoto, and even Kubo a possibility.

There are two double-takes that I did as I read that. First off, intellectual property law as it now exists is an interpretation of older legal principles. It did not historically exist, though those principles did. While yes, the US Constitution does allow for Congress to secure rights for authors and inventors, copyright law in the 18th century was a very different beast from our modern concept of intellectual property.  Most of the rights that lawyers are now concerned with did not exist at the time, and especially noteworthy, it is only recently that intellectual properties are actually handled as real properties, rather than simply convenient fictions that exist to protect authors.  (Not coincidentally, the fiction of corporations as persons has also been stretched and reinterpreted in recent years.)

The modern reinterpretation is, if you will, the equivalent of a programmer kludging some code to make it do different things rather than starting cleanly from scratch. This is one reason people confuse copyright violation with theft, when the two are legally distinct: we are using old laws to handle rights and violations that did not exist when those laws were promulgated.  Zach may argue that copyright violation is morally indefensible in the same manner as theft, but then we are not entering a legal discussion: he is asking readers to share his morality, after which their agreement with his points will be obvious.

The term “sacred” – always a dubious choice in a discussion of secular law – presages this shaky claim. Pretending continuity between the copyright law of the past and the intellectual property rights of the present is roughly the same as asserting that Film studies existed before the earliest camera, that Protestantism existed before certain European monks re-interpreted the Bible, or asserting that modern Wicca should be identified with ancient paganism: it may lend legitimacy, but it is only true if one does not look too deeply. For that matter, the Constitution specifies that Congress may not prohibit, but may tax, the Importation of Persons – in historical context, the slave trade.  Ought we to treat America’s profit from the buying and selling of human beings as “sacred” as well? Even if intellectual property rights had appeared in their present form, appearing in the Constitution may not be a perfect indicator that a law ought to be treated with special reverence.

As a second major objection to this quote, US law is not what allows the works of Oda, Kishimoto, and Kubo to exist, because mangaka are producing content under Japanese law. Certainly, the US laws are very influential, and Japan has some ideas about intellectual property that are very close to US ideas (witness their agreement on ACTA) but suggesting that manga would not be made in Japan if the US had not developed this particular legal interpretation of an artist’s right to control his art is quite a stretch.  In fact, some economics experts argue that international rights themselves restrict art and lead to inefficiency.

Creating international trade rights creates an artificial scarcity where no real scarcity exists. That, by definition, is inefficient.

– Thomas Lenard

What Zach perhaps means to say is that the principle behind the law – the idea that authors are compensated for the work they do – is what enables mangaka to produce manga for a living.  On that we all must agree.  But this acknowledgement of necessity is a far cry from a ringing endorsement of the exact, current methods of ensuring that authors are compensated.  It is the methods that the angry fans the article quotes disagree with, and it is a distributor, not a creator, that they have vented their ire on. (Translation is an act of creation, legally speaking, but one who views a free scanlation is viewing a different creation from the officially translated product anyway.)


Tsukento writes, parodying an angry fan,

I also hope for the only major company that helped shaped this industry to crash and burn, preventing us from ever seeing official releases again!

But this misses the point. What industry? From an economic rationale, to someone who only wishes to view manga if it is free, there is no benefit derived from the existence of VIZ. On the other hand, if VIZ is going to DCMA takedown the sites these particular fans like, then VIZ is (from that point of view) harming them by interfering with what they want to do. Wishing for VIZ to collapse is therefore sensible for them from an economic perspective, given those starting points. Arguing with them over the finer points of VIZ policy but ignoring the basic truth that underlies their approach – that they do not accept VIZ – is not going to go anywhere.

Personally, I have paid for or been furnished with review copies of every anime I have ever watched – but I do not make the mistake of thinking that other people think as I do and are necessarily happy to support the system. Distribution in America does not directly affect production in Japan, and almost everyone in the discussion seems at least dimly aware of this. Everything I have seen leads me to conclude that people honestly believe US distribution of licensed works can collapse with no ill effects on production in Japan. (This is, I suspect, also conflated with attitudes about things being “cooler” or “purer” back when fans of an obscure medium swapped episodes or chapters physically. Fans who yearn for a return to that might not mind if the US industry downsized, mistakenly thinking that this would revert fan culture to its earlier days.)

If you wish to change fan attitudes about paying money for works, it will become necessary to explore the truth of these assumptions and demonstrate their falsehood, preferably with hard data. Only after fans concede the necessity of the existence of a US industry to handle distribution and licensing can they be convinced that this industry is worth supporting.  I don’t mean to put the burden on Zach and Tsukento – it’s VIZ, FUNimation, and other companies that have failed to recognize this crucial step in securing their future.  Their eyes were on Tokyo, not America; they took their hard-won legal ownership of distribution rights for cultural ownership without taking steps to ensure a congruence between the two.  Now, they are paying the price.

One thought on “An Ill-Managed War”

  1. A great post.. but what I see is that it is a movement of the time. Scanlations like fansubs existed because there was no company existing at the time, to make sure the release is done here. I know mangakas don’t like to see how their work gets scanned and uploaded for free… like I see with various times One Piece new Japanese chapters get leaked onto the net. Japan may or may not have the same copyright laws as the United States, but as of right now I can only see the English manga publishers being in the right.. so all I can say is that if the reader doesn’t want to pay, then they would have to go borrow a physical copy from friends or from the libraries. I would so see this as a great way of getting into the trend of manga reading through legal means.

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