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Do's and don'ts when making money from fanworks: solutions from the Japanese dojinshi market

Presented at SGMS: Mechademia in September 2013.

Nele Noppe

on 3 September 2014

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Transcript of Do's and don'ts when making money from fanworks: solutions from the Japanese dojinshi market

The TPP and the "dojin mark"
Is it likely to work?

Do’s and don’ts when making money from fanworks: solutions from the Japanese
dojinshi market

Copyright issues
Japanese copyright law forbids creation of derivative works without copyright holder's permission
But: no prosecution unless the copyright holder files a complaint
Also, no case law so far -> dojinshi exist in a legal gray area
dojin shops
mail order
online stores
Dojin-shi: "magazine by/for like-minded people"
Historically: many people necessary to cover publication costs, now also made by individuals
20~50 pages
Fiction and non-fiction, text, manga, illustrations, ...
Since 1980s: mostly fanworks
Mostly fan manga
Also outside of Japan
Source: http://englishclass.jp/reading/topic/Comiket
Total value of dojinshi market estimated at up to 70 billion yen
(approx. $900 million)
(Yano Economic Research Institute, 2011)
(also free exchange online)
Market size
The TPP problem
The dojin mark
What is the TPP
Evolution of the dojin mark
What is the problem
What does the dojin mark mean?
Sale of those second-hand dojinshi to other fans via physical and online second-hand bookstores
Intro to dojinshi exchange
One example of dojinshi-related activism: against the TPP negotiations
One solution against the TPP: the "dojin mark" license for fanworks
How likely is it that this will work?
66 percent of dojinshi creators report being in the red
34 percent do make a profit, but most very little. 10% of male fans and 6% of female fans report making more than 200000 yen from their fanworks per year
most fans make dojinshi for "fannish" reasons
Mixed/confused reactions
Issue 1: The license assumes that professional creators should be the ones to give permission for fanworks

Issue 2: It's assumed that the license will work outside Japan as well, but it was not created with any knowledge of how fanworks are made and distributed outside Japan

Commonsphere on dojin mark design: What sets this design apart from other proposed designs is that there's a good chance that fans outside Japan will recognize the meaning of this (really?)
October 2011: We need a way for mangaka to give people permission to make dojinshi
Mangaka Ken Akamatsu
March 2013:

Government-organized symposium on how to use licenses to protect creation by pros and amateurs in Japan
Proposal by Akamatsu for a license that would let mangaka allow fanworks
August 2013: introduction of "dojin mark" together with commonsphere
Trans-Pacific Partnership Agreement
trade agreement under negotiation
also copyright law component
Japan joined negotiations this year
Proposed draft of TPP being negotiated says that participating countries would have to harmonize
their copyright laws, among others by making copyright infringement always enforceable

"If Japanese copyright law is changed in this way, it could mean the end of dojinshi"

Would be good if we could piggyback on Creative Commons, because it's already well-known in Japan and around the world
But: CC licenses always allow free redistribution of works, which most mangaka don't want to allow

So how about an adapted CC license that would let mangaka specify that they allow (a certain kind of) fanworks?

CV -"connivance license"
License that mangaka and other creators can use to allow fanworks
Mangaka can choose to prosecute people who violate the license terms
Basic license allows sale of print dojinshi at conventions
Basic license can be extended to allow other uses like digital fanworks or sale at dojin shops
License always allows all kinds of content for fanworks, including "sexual content, BL, or grotesque content"
Used for the first time by Akamatsu for his new manga, serialized in Weekly Shonen Magazine from end of August 2013
Mangaka, legal professionals, and academics (and government) recognizing that fanworks are valuable and should be protected
fans apparently absent from negotiating table
"Dojin mark" claims to be a solution for the possible disappearance of the "grey zone" for dojinshi....

...but what about dojinshi that are created or distributed in violation of the license's terms? Will they be in a "black zone"?
An explicitly legal status for dojinshi would allow fan creators to enforce their copyrights (e.g. against people who scan and upload dojinshi)

(Would it be a pro for fans to be able to sue other fans? ...Regardless, legal status for fanworks would have its advantages)
Two big issues with the license
But what is a better solution? Japanese copyright law doesn't contain any of the provisions that give US legal experts fodder for arguing that fanworks are legal. And the US is not proposing to export its fair use provisions with the TPP.
What can academia do?

Put more knowledge and good analysis of Japanese (and other Asian) fanworks cultures out there in English
And more knowledge and good analysis of English-speaking fanworks cultures in Japanese

Thank you!
People in the US and in Japan are trying to figure out how to legalize fanworks. They need to be more aware of how fanworks function in other parts of the world, and they need to coordinate their efforts more.

If this doesn't happen, we're likely to see more missed chances like the "dojin mark".
Points problematic for US fans (and most Japanese fans):

The license assumes that original creators have the right to control what fans make and how they distribute their fanworks

The basic license applies only to fanworks exchanged at conventions, but many fanworks are exchanged in other ways too

The basic license applies only to print fanworks, but many fanworks are now digital

It seems unlikely that fans will consider it fair that a fan who does something to violate the license's terms is treated like a criminal

Everything depends on the goodwill of individual creators; there is no blanket solution for all fanworks. In combination with all the possible ways the license can be extended, this has the potential to get very confusing very fast (chilling effect)
Creators of license seem to be assuming that various aspects of fan culture (fanworks creation, yaoi/slash) are uniquely Japanese things
Akamatsu: An advantage to a CC-based license is that CC is well-known and accepted outside Japan (which is a good point in and of itself)

There's a bigger issue than "Should creators be allowed to determine what fanworks can be made and how they can be distributed" or "Is this license fair?"

It is vanishingly unlikely that enough fans will follow the rules set out by this license, even if all mangaka adopt it. That begs the question whether the license will be able to fulfill its purpose.
Most fans will create what they want regardless of whether the license is there or not, and regardless of the restrictions of the license, which are unenforceable anyway.

Laws that are unlikely to be obeyed and easily circumvented are bad laws.
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