Beginning this October Japan will experience a totally new copyright regime. Piracy in Japan has always been especially dangerous. The police monitor file sharing networks, and pirates will occasionally be raided by cops and have their computers displayed on the evening news. From 2012 on, though, violators can face two years in prison for criminal downloading.

But what exactly makes a download criminal? The Agency for Cultural Affairs, which oversees the law, is having a hard time defining what, exactly, constitutes criminal piracy under the new law.

First, let’s address the definition of the word “download”. With this new law, you have a blanket permission to stream any and all pirated YouTube videos, but saving permanent copies of these videos will be a big no-no. However, saving comic strips from websites will be fine, and you can copy and paste all the text you like, because the Agency for Cultural Affairs has interpreted the word “download” as implying an audiovisual recording and not any other type of binary data. There is no stated logic behind this, and there has not yet been any ruling on, say, converting a video into a picture of a film strip.

Next, the Agency for Cultural Affairs gives us a rather inspired ruling of “illegal download”: it claims that TV shows which have been broadcast and are not yet available on DVD or Blu-Ray may be downloaded freely, because they were broadcast for free! However, you can still be sued for piracy as a civil offense. Furthermore, there are existing criminal charges for people who upload such videos.

Let’s move along to recordings of unknown provenance, which curious readers often find on the Internet. Most of the law requires that you have an intent to acquire works illegally when you download, which does not appear to be easily provable. In fact, there does not appear to be anyone in Japan who believes that intent can be proven if there is some doubt at work. One lawyer guesses that “it’s hard to imagine that songs have been officially allowed to go on peer-to-peer networks,” so making Gnutella your tool of choice for finding those great Jonathan Coulton songs will apparently make you a suspicious character.

How does an artist make it clear that his material is safe to download? The Agency for Cultural Affairs asks Internet users to look for a recording industry trademark called the L Mark, but this trademark can’t be used by just anyone; artists must join the Recording Industry Association of Japan and pay money to use the mark, which is currently employed by no more than 300 websites. There is no word on whether a Creative Commons mark or public domain declaration can serve as a defense against inappropriate claims of criminal copyright violation.

Once you have your legally acquired music and movies, you mustn’t pirate them, but feel free to e-mail them to others. E-mailing MP3s or videos to a specific friend remains legal in Japan, assuming you are not offering them as a service to pirates. You can even e-mail entire CDs that you ripped, within some reasonable limit. However, you are not allowed to circumvent the copyright protection on the few CDs that have it, so keep your hands off that Shift key.

This is not legal advice, but the law is so vague that it would be surprising if it had a large impact on the number of prosecutions. Most legal cases in Japan are dropped before trial if guilt cannot be established, and plea bargained by the Kensatsu before they go to court, which is why there is an almost 100% conviction rate. Past cases suggest that only the most serious violators, like people who upload TV shows to file-sharing networks, will face prosecution.

Source: Agency for Cultural Affairs (Japanese)