Kinema Club Subtitling Consortium

[Aaron Gerow]

Thanks to everyone for the good discussion on the proposed consortium.  
We do need to work out a lot of issues before starting things up, so the 
more talk the better.

Thanks also to Lang for his points:

>1.  Though films may become public domain in Japan after 50 years, they
>could still be protected in the US by US copyright for at least another 25.
> This issue doesn't really seem to be settled, particularly since most of
>the questions have revolved around works that are still protected in their
>country of origin but are public domain in other countries.

This is an important issue, but as another poster said, we do need to 
look into how much Japanese copyright holds in other countries (not just 
the US).  In Japan, the limit is 50 years after release (although there 
are proposals to extend it to 75).

A curious thing, however, is when you look at commercial video tapes of 
old Japanese films, some stress the copyright year and some don't.  
Shochiku Home Video puts the copyright year on all their tapes, but 
others like Nikkatsu do not.  Still, they all put on a warning against 
unauthorized copying, broadcast, and public showings.  (The latter 
condition would presumably make classroom or conference showings illegal.)

The big problem with the public domain issue is that none of this has 
been tested in court in Japan with regard to film. I know from talking to 
the people at Matsuda Eigasha that they consider all their films public 
domain and use them freely (including selling video versions), although 
they do try to cooperate with the original copyright holders if they 
still exist.  Matsuda has not been sued to my knowledge.

This is also true of fair use.  There is a fair use clause in Japanese 
copyright law, but no one has gone to court to test what it means with 
regard to film (probably since academic film studies is so miniscule in 
Japan).  Some of my colleages, like Yomota Inuhiko, feel that any 
academic use is legimate since no court case has said no to that (thus 
with his _Manga Genron_, which has hundreds of images from manga, he has 
decided not to ask permission for use of them for the bunkobon version 
(he did for the hardback)).

One other issue we might need to address is that of distribution rights.  
There is a slight possility that US (or European) distribution rights 
have been sold for some of the films we select, rights which are still in 
effect (I believe 10 years is the usual contract term, but there are 
probably many exceptions).  Although distribution rights for video and 
for film are often sold separately, we need to make sure our tape 
distribution is not upsetting something like that.

>2.  Whether the subtitled tapes are in fact hurting sales or whether
>they're being sold doesn't affect any possible status of copyright
>violation, only the potential amount of damages.

A good thing to know, but I still hope the practice of buying the 
commercial copies will appease the relevant companies.  If you look at 
the internet sites for most of the major studios, it is clear they don't 
even conceive of a foreign market for unsubtitled work.  SInce we are 
helping them open up that market, I would think companies would treat us 
more kindly.

>3.  If you've produced subtitles for a film that's still in copyright and
>you don't have the explicit permission of the holder then you won't own the
>copyright to your own translation (since it's an unauthorized derivative
>work). 

What then of a film that is not in copyright?

There are obviously a lot of issues involved here.  One solution, of 
course, is to get permission from the production company for any film we 
do, even if it is technically public domain.  This can be done for the 
majors, but it's less clear with companies like Shin Toho, Shinko Kinema, 
etc., that don't exist.  One is also afraid that some companies will not 
be cooperative.

Finally, I do want to emphasize that in my mind, the consortium will not 
be as restrictive as some people think.  One of the main reasons behind 
creating these tapes is to show them in an academic setting to 
non-members (students, colleagues) who do not have Japanese language 
capability.  The actual physical tape needs to be guarded carefully so 
that unauthorized duplicates are not made (this is the responsibility of 
the member), but the tape can be shown relatively freely by the member in 
an academic setting.  The main issue then is controlling the use of the 
actual tape by non-members.

Aaron Gerow
Yokohama National University
KineJapan list owner
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