Cultural consumer and copyright:
A case study of anime fan subbing

Carlo Valencia BSED 1st year

Abstract

This paper intends to discuss copyright infringement from consumers’ perspective through looking into anime ‘fan subbing’. Anime fan subbing refers to the participatory consumption in which avid fans copy anime (Japanese animation), translate Japanese to another language, subtitle and release subtitled version on the Internet to share it with other fans, without asking for permission from the copyright holder. The case study of English fan subbing of anime shows that this activity was guided by fan subbers’ own ethics that intended to support the anime industry by self-controlling fan subbed anime. Under the advancement of digital technologies and the increased global connectivity among anime fans, however, the existing ethics have become outdated and thus global distribution of anime is further detached from the industry’s distribution businesses. This paper notes the importance of consumers’ own norms and rules in shaping behavior of copyright infringement. It raises further questions on the relationship between copyright law and consumer ethics.

Introduction

Amid the rise of creative economy discourse, the issue of copyright is drawing increasing attention from cultural industries, policy makers, civil societies and consumers. Simply put, ‘copyright’ can be defined as a series of exclusive rights to reproduce and distribute a work of artistic creation and the right to create derivative works based on the copyrighted work. It also includes rights to public performance and display and to communicating of copyright works to the public, for example via transmission. As the UK government’s official definition of creative industries indicates, it is frequently assumed that the economic life of making and disseminating cultural products primarily relies upon generating and exploiting copyrights (DCMS, 1998). However, it is in this area we are witnessing strikingly varying views and conflicting practices. Whilst policy makers and the industries firmly stand for the idea of copyrights as exclusive property rights belonging to cultural producers (and thus publishers), the everyday life of cultural consumers is likely to involve various forms of reproduction and sharing of copyrighted works without permission from the relevant copyright holder. Parallel with the advancement of digital technologies and the penetration of online communications, the tensions around copyright are becoming more severe. Cultural industries have made huge efforts to curb consumers’ copyright infringement, sometime making high profile lawsuits, but this does not seem to have produced recognizable impacts on consumer behavior. The circumstance raises fundamental questions of why copyright as a policy is not effective in shaping the practice of cultural consumers and if there exist any alternative ethics that shape consumer behavior. This paper finds that the official discourse of copyright, for example copyright law, has a narrow and static understanding of consumers. It views cultural consumers as passive individuals and does not properly recognize the cultural and social meanings of their practices. It is also noted that, while not strongly informed by copyright policy, cultural consumption activities are guided by consumers’ own norms and rules. This paper discusses the dynamics and tensions between copyright, consumption practice and consumer ethics through a case study of anime ‘fan subbing’. Anime fan subbing is the practice in which avid fans of anime (Japanese animation) copy anime, translate Japanese to another language, subtitle and release the subtitled version on the Internet to share it with other fans, without asking for permission from the copyright holder. From its early years, the English language fan subbing (amine fan subbing in English) community, which was based in the US, developed a distinct culture. Fansubbers saw their activity as a means of pursuing their hobby, manifesting their love of anime and support for the anime industry and increasing anime’s accessibility overseas. Such culture was aptly reflected in the community’s revered rule ‘stop when the anime is licensed’, which aimed to self-control the circulation of fan subbed anime. However, the introduction of digital fan subbing, the globalization of English fansubbing production and consumption and the rise of peer-to-peer distribution during recent years have resulted in an intensifying conflict between the existing ethics and newly evolving consumption practices. In order to study fan subbing practice and ethics, I examined website text by selected fan subbing groups active in release during two weeks in autumn 2009 and forum sections of a number of well known anime news and listing websites. In addition, in-depth email interviews were conducted with a total of nine English fansubbers, an editor of an anime news website, an anime historian and four industry commentators between October 2009 and April 2010 (all the names of interviewees and fan subbing groups used here are pseudonyms). Some of the findings will be published elsewhere (Lee, 2010).

Copyright and cultural consumers

At the heart of copyright disputes today exists cultural consumers’ unauthorized copying and distributing of mass produced cultural commodities. It is an obvious observation, but it is still important to notice given that conflicts in other areas of intellectual properties such as patent and trademark are generally confined to those among businesses. This might imply that the tensions around copyright have much to do with the inherent nature of cultural consumption. Nonetheless, copyright discourse in cultural policy is concerned more with cultural producers than with consumers: copyright is seen as a natural right belonging to the ‘creator’ of cultural contents and also treated as an incentive and reward for cultural producers’ creativity (e.g., the UK government’s Digital Britain report, 2009 and the subsequent law Digital Economy Act, 2010). As Liu (2003) argues from the US context, copyright law is a well-developed theory of author but does not hold its equivalent of the consumer.3 The UK copyright law4 shows the same traits. The consumer in these laws appears to be primarily either authors, who are using existing copyright works, or members of the general public. The laws’ clauses on limitations of copyright protection (fair uses in the US; or fair dealing in the UK) indicate some potential identities of users: student, researcher, critic, teacher, news reporter, educational establishment, and library, archive and so on. The clauses legitimize certain types of non-commercial, private, educational and public uses of copyright works. Meanwhile, the Japanese copyright law takes a more tolerant view of fair uses: ‘private use’ – personal use, family use or other similar uses within a limited circle – and ‘not for profit-making’ exceptions are acknowledged.5 However, the laws mostly see consumers as passive users of copyright works and their activities as economic ones that occur in the marketplace in an individual manner. They do not recognize varied cultural and social contexts of consumers’ use of copyright works and the changes digital technologies are bringing to the nature of cultural consumption.
Findings from consumer and media research provide rich accounts of cultural consumers and their practices but they seem not to be feeding into policy discourse of copyright. One of the findings is the active and creative aspect of cultural consumption, i.e., cultural text is unfixed and open, thus its final interpretation and understanding depend on meanings newly generated by the act of consumption (Firat and Dholakia, 2006; Kozinets, 1997). Cultural consumption practices are neither prescribed nor predicted by the producers (Gabriel and Lang, 2006). This is more visible in consumers’ own making of cultural text based on copyright works: e.g., fan fiction, fan art, parody, user generated contents and various types of forum and discussion online (Deuze, 2007: Jenkins 2009; Green and Jenkins, 2009; Penley, 1992). The concept of consumption as (re)creation fundamentally questions copyright laws’ static perception of creation (making and fixing original ideas in the form of text, recording or film). Another thing to note is that the consumption of culture is situated in social contexts where consumers create social relationships with others through consumption practice, and this closely relates with the forming and strengthening of their personal and community identities (Marshall, 2004). Collective consumption via sharing plays a crucial role in this process (Condry, 2004). Sharing takes place in many different forms, from offline lending and borrowing, online communications such as email and instant message, to peer-to-peer file sharing (The Leading Question and Music Ally, 2009).
The crucial point is that consumers’ unauthorized copying and circulating of digitized cultural contents is inseparable from the social production of collective knowledge (Benkler, 2006). The last decade has witnessed a wide range of knowledge – from software, technology, information, news, criticism to skill sets – voluntarily generated, accumulated and shared freely among consumers themselves. The rapid expansion of consumers’ free knowledge and its effortless accessibility make it increasingly difficult for copyrighted works to be distinguished as ‘separate’ knowledge that cannot be offered as free. Online connectivity allows cultural consumers today to easily access and share both free and copyrighted cultural contents across national borders. Utilizing their own skills, available digital technologies and free software, consumers are capable of carrying out even ‘mediated copying and sharing’ of foreign cultural products: consumers translate and edit foreign films, TV shows, animations, novels and comics and release the translated version on the Internet (Barra, 2009; Lee, 2009, 2010). Frequently this is almost synchronized – with a time difference of a few hours at its most speedy – with the release of the original. The costs involved are decentralized among and internalized by the consumers themselves in the form of the expenditure on PC and Internet connection and their voluntary labor (Ku, 2002). The existence of an escalating amount of free knowledge online poses a fundamental challenge to the idea of copyright. Copyright as a policy regulates an increasingly small section of production, distribution and consumption of cultural contents thus its legitimacy and efficacy is likely to be continuously weakened.

Consumer (alternative) ethics of copyright infringement

There is a noticeable divergence between the rules imposed on cultural consumers by the copyright law and the consumers’ own ethics. In this paper, consumer ethics are defined as a set of socially-situated moral principles that guide and influence consumers’ reasoning and behavior. Consumer ethics can be also seen as unspoken norms and rules of consumer communities. The ethics appear to be constantly informed by consumers’ intuition and their view of the product, the producer, the industry and the role of the consumer. In general, cultural consumers tend to hold a strong normative culture that copyright infringement for personal use fundamentally differs from the theft of physical goods. Industry reports easily discover that a majority of consumers regard unauthorized copying for personal uses as illegal but morally acceptable (Of com, 2009; The Leading Question and Music Ally, 2009). Such an attitude has also been observed by consumer ethics researchers and criminologists (Hinduja, 2003; Muncy and Vitell, 1992; Vitell, 2003). At the core of consumers’ alternative ethics, there seems to exist their intuitive uneasiness and confusion with the existence of intangible properties such as exclusive rights. The uneasiness and confusion seemingly intensify with their experience of digital copying as a new method of endless reproduction of the original with no harm to it and at almost zero cost.
Sharing of cultural contents is a way of consumption from which consumer finds pleasure. Access to a variety of contents via copying and downloading provides them with a sense of alternative consumption and liberation. In addition, the building of a virtual community and participating in it strongly drives consumers’ copyright infringement. For instance, Giesler (2006) and Giesler and Pohlmann (2003)’s analyses of Napster users reveal that their behavior is shaped by a complex web of social practice and norms that can be explained within the framework of ‘gift exchange’ between anonymous members of the music consumer community online. Consumers’ own perception of cultural producers/distributors works as another critical variable. The image of multi-media companies monopolizing and dominating the film and music industries and the current copyright regime protecting the industries’ interest are likely to provide consumers’ copyright infringement with a strong justification: the infringement is deemed as a challenge to corporate greed and commercialism (Condry, 2004; Garon, 2002-3; Giesler, 2006; Giesler and Pohlmann, 2003). The high prices of legitimate products such as CDs and digital albums are also criticized (The Leading Question and Music Ally, 2009): that is, consumers cannot benefit as much as the industries can from the lowered production and distribution costs caused by digitalization. Copyright infringement such as online file sharing is also frequently viewed as testing and accessing new contents that are not available elsewhere (Cenite, et al., 2009; Lee, 2009). Sharing via copyright infringement is also associated with higher humanitarian and cultural values such as freedom and democracy (Cohn and Vaccaro, 2006; Giesler, 2006; Giesler and Pohlmann, 2003; Harris and Dumas, 2009; Hinduja, 2003).
Nevertheless, the consumers’ relationship with the cultural industries looks ambiguous as the former still want to somehow support the latter but the support tends to be rather selective: e.g., going to gigs and buying albums of their favorite artists (Cenite, et al., 2009; The Leading Question and Music Ally, 2009). Again, the support seems dependent on consumers’ understanding of the industry and producers. For example, Lee (2009) discovers a distinct culture of manga (Japanese comics) fans’ unauthorized translation and circulation of manga on the Internet. While freely borrowing manga, the fans perceive their activity as a means to promoting and supporting the global manga industry that is still in an early stage. They partially embrace the idea of copyright protection by setting a rule of ‘stop when the manga is licensed’. In a nutshell, the existing research finds that copyright infringing consumers develop their own, alternative ethics whose proximity with those imposed by official copyright discourse differs depending on the factors discussed above.

A case study of anime fan subbing

Context of anime fan subbing
Anime fan subbing has constituted a pivotal part of the anime fandom in the US. Its primary objective was to introduce anime to US viewers who could not access otherwise them. Although the 1980s saw US anime fandom emerging and fans’ desire for anime surging, the official distribution of anime was highly limited. In the early 1990s, fans had already begun DIY translating and subtitling of anime that they could obtain in the form of TV recordings or original video tapes published in Japan (Leonard, 2005). The fan subbed version of anime on VHS tape was copied multiple times and circulated among anime clubs across the country. This was closely associated with other fan activities such as anime screenings and fora (my interview with JAMES and TONY). Around the beginning of the new millennium, analogue fan subbing was replaced by digital means. This meant a drastic transformation in terms of fan subbing production, distribution and consumption. Digital technologies allowed the production process to be made easier and its finished products copied and downloaded endlessly without quality loss. Digital fansubs began to be distributed via online file sharing and thus the speed and scope of their diffusion radically expanded. The rise of digital fans ubbing corresponded with the growth of the anime industry in the US. An increasing number of popular anime series were licensed and published but the industry’s offers are still far from satisfying fans’ demand for diverse titles.
The anime industry’s global distribution is highly fragmented as it based on licence deals between its production centre (Japan) and local publishers (JETRO, 2008). This model of multiple centre-local networks has a number of disadvantages: the time gap between publication of the original and local versions and also between local production in different language territories; limited visual quality (the quality of local version DVDs cannot compete with that of the original’s HD broadcasting or its Bluray DVD version); and the shortage of local catalogues and the consequent neglect of local fans’ niche demands. Fan subbing has dramatically transformed the process and structure of anime distribution outside Japan by mobilizing resources and organizing their labor on a global scale in order to make and disseminate their own version of translated anime. Easy access to related technologies, skills and software (e.g., free software for subtitling and encoding) and seamless online communications help them to produce fan subbed anime with high-quality visuals and circulate it widely. Popular shows are fan subbed into many languages within a few days of the original’s release in Japan and are almost simultaneously shared among a huge number of overseas viewers. In order to fill the gap between consumer demands and the industry’s offers (DVDs) and also to compete with fan subbing, anime publishers in the US have recently launched online streaming services. However, we need to wait and see how these services can monetize the current fan base nurtured through fan subbing.

Legitimacies for unauthorised use of anime
Fan subbing is an unauthorized use of copyrighted anime. Nevertheless, fansubbers are keen on discussing the ‘illegality’ of fansubs. For example, comments on the illegality of fan subbing and downloading fansubs are easily found on various fan fora and the Q&A section of fan subbing groups’ websites. It is also frequently recognized by anime news websites and websites devoted to distribute fansubs. For instance, AnimeSuki, the well-established anime fan subbing torrent site, states that ‘We have to admit it: the distribution of fansubs is technically a violation of copyright under the WTO TRIPS agreement’ (http://wiki.animesuki.com/wiki/Licensed_anime, accessed 5 August 2010). In spite of almost unanimous acknowledgement of the illegal status of their activity, fansubbers think that it does not necessarily conflict with the interests of the anime industry. They pinpoint the limited accessibility of anime in the US and other non- Japanese speaking countries and the consequent gaps between consumer demand and the supplies of anime via market mechanisms. According to them, fan subbing has been seen as a solution to correct the market through temporarily offering translated and subtitled anime and thus to fulfill consumer demands ideally until legitimate products are available
Similarly, fan subbing has been regarded as an equivalent for TV. In the anime industry context, the role of TV is crucial in nurturing consumer demands for DVDs. For example, the Japanese anime industry demonstrates that fans normally taste the anime via TV viewing and then decide on their purchase of DVDs and Bluray DVDs (my interview with two commentators from the Japanese anime industry). This is why Japanese anime producers traditionally have treated TV broadcasting as a form of advertising. While lamenting the lack of TV coverage of anime in the US, English fansubbers see their activity serving as free promotion. Interestingly, this nature of fan subbing was widely acknowledged by the US anime industry. The industry was generally nonchalant towards fan subbing but tended to agree on its viral marketing and market tester aspects. For example, Jason DeMarco, a then creative director for Cartoon Network, said,
If the fans are putting out a bunch of Naruto fansubs and talking about the show, even the casual fans are going to say, “What’s this Naruto that all these crazy guys are talking about?” Eventually it’s going to filter to us because they really are a quality indicator. (Jason DeMarco, a creative director for Cartoon Network, cited in Roth, 2005)8 Anecdotes also indicate that US anime publishers sometimes browse fansubs for market research purposes and have conversations with fansubbers. There are examples of fansubbers’ direct collaboration with the industry: e.g., a fan subbing group provided Tokyopop, one of the largest anime publishers in the US, with a translation of Initial D (2002) (Anime News Network, 17.4.2002; my interview with TONY). Moreover, fan subbing covers a broad range anime including unknown, obscure anime, which will never be introduced into the US. In this case, the net effect of fan subbing would be to promote anime culture and nurture consumer demand.

If the fans are putting out a bunch of Naruto fansubs and talking about the show, even the casual fans are going to say, “What’s this Naruto that all these crazy guys are talking about?” Eventually it’s going to filter to us because they really are a quality indicator. (Jason DeMarco, a creative director for Cartoon Network, cited in Roth, 2005)8 Anecdotes also indicate that US anime publishers sometimes browse fansubs for market research purposes and have conversations with fansubbers. There are examples of fansubbers’ direct collaboration with the industry: e.g., a fan subbing group provided Tokyopop, one of the largest anime publishers in the US, with a translation of Initial D (2002) (Anime News Network, 17.4.2002; my interview with TONY). Moreover, fan subbing covers a broad range anime including unknown, obscure anime, which will never be introduced into the US. In this case, the net effect of fan subbing would be to promote anime culture and nurture consumer demand.
Fan subbing ethics and copyright
Fan subbing is an active consumption of anime and a fun activity, in which anime fans find personal pleasure through their labor of love and participating in the community (my interviews with ADAM, DANIEL, GERRY, KAY and TONY). Evidently it is ‘a form of expression’ and a way to show off their skills (my interview with GERRY). What is interesting is that fansubbers have developed their own rules and norms, which surely manifest their love for anime, desire to share it with other fans and support for the anime industry. Premises of the rules and norms are noticeably different from the official discourse of copyright but they have effectively shaped fans’ behavior. Since the very beginning, anime fan subbing has been a strictly non-commercial activity. The only exception was charges for distribution. In the early days, distribution of fan subbed anime required VHS tapes and shipping, and fansubbers charged their viewers for related costs. Meanwhile, costs for setting up, obtaining anime videos and labor were normally borne by fansubbers themselves. As fan subbing is a voluntary activity, those involved are supposed to willingly invest their time, money and energy to produce fansubs and to maintain their operation. In a sense, fan subbing is an expensive and demanding hobby. Today some groups seek voluntary donations to keep the server operating but others try to be absolutely non-commercial by banning donations.
Fansubbers have a double-sided understanding of copyright where authorship and ownership exist separately. They affectionately acknowledge the moral rights of the creator, broadcaster and publisher of the original anime but freely borrow the anime without obtaining permission from the copyright holders. Meanwhile, they have inclined to respect US licensees’ ownership of exclusive rights to reproduce, translate and distribute English subtitled/dubbed anime in the US (or North America). It is thought that the US licensee’s rights should be protected for the US anime industry to grow and thus fans can be eventually offered an increased number of legitimate products. Fansubbers’ respect for US licensee’ exclusive rights and their desire to support the industry are succinctly reflected in the long-standing rule that fansubbing and its distribution should stop when the anime is licensed in the US (or North America). It was an indisputable norm in the VHS days and is still valued by many groups, particularly old and esteemed ones. Many fansubs distribution websites comply with the 9 rule. This rule has been used effectively for the fansubbing community to control the spread of fansubs and thus to prevent them from eroding future demand for the legitimate version. The community’s attempt to self-regulate its ethics was vividly demonstrated by A New Ethical Code for Digital Fansubbing proposed by the Anime News Network (2003):
…only the first 4 or 5 episodes should be fansubbed in order to give a taste of the anime…. Fansubs are not to be considered a substitute for owning a legal, English-language copy…. Distribution must stop the instant a license is announced…. Fansubs are not meant to compete with a professional product…. [thus] a audio/visual quality of a fansub should not attempt to match or better the quality of a professional DVD…. Fansubbers should operate in a manner which minimizes impact on the commercial interests of anime-producing companies as it is in the best interests of anime fandom that these companies be healthy and create more anime…. The fansubbers should promote fansub ethics by displaying the code of conduct expected of the viewers somewhere in the anime…
Anime publishers in the US are aware of the ‘stop when licensed’ rule. Thus, when they license a series, they normally contact the groups fansubbing it and ask them to stop, sometimes using a Cease and Desist letter. They also contact and ask fansubs distribution sites to take down the licensed items. When it comes to rights in their own creation, the fansubbers’ stance is ambiguous. They take their reputation seriously and are keen on being credited for their efforts. However, they are tolerant about their work’s re-uses by other fansubbers – e.g., retranslation to other languages or re-release of their subtitles with a better video: ‘It’s not like we can actually stop you’ (Group X); ‘…if you want your subs magically protected, you shouldn’t be releasing in the first place’ (my interview with KATE); and ‘Feel free to do a re-release with better video…[when it] becomes available’ (Group Y). Nonetheless, the tolerance is selective, as fansubbers do not allow their work to be commercially exploited. A few years ago, there was a moment when copyrights in fansubbed anime emerged as a hot topic. It started with Cruchyroll, a website that collected fansubbed anime and streamed them. The website imposed a ‘compulsory’ donation on viewers who wanted to access high quality versions of fansubbed anime. Fansubbers condemned this as a breach of the community’s fundamental principle (‘being non-commercial’) and some of them are known to have asked the website to take down their works. When Cruchyroll became legal and began offering popular anime series under deals with Japanese producers, it was still streaming fansubbed anime. This sparked heated debates about who ‘owns’ fansubbed anime and whether 10 fansubbers could take legal action against the website.6 The tension eventually resolved as Crunchyroll took down all fansubs. Later the website became a major streaming provider of Asian animation and TV drama in the US

Dynamics of fansubbing ethics
During the last few years, anime fansubbing in English has dramatically expanded. Its production, distribution and consumption have been globalised, and have attracted new generations of fansubbers and viewers. This makes it increasingly difficult to maintain the community’s existing ethics (my interviews with JAMES, GERRY and ANDY). Fierce debates around fansubbing ethics have been ongoing but there is no sign of the ideas converging. Older generation fans try to rigorously conform to the existing ethics – in particular, the rule of stopping when licensed – but they are seen as an ideal rather than a reality. There are many who do not stop working on licensed anime for various reasons. First, some see fansubbing as a form of protest against the poor value of the legitimate products (e.g., heavy localization, high price, poor translation and visual quality and lack of cultural references). They would keep fansubbing until they could find legitimate products good enough to satisfy their own criteria. Second, nowadays many groups are working on the latest series and/or latest episodes of licensed series. The demand for ‘speed subbing’ is escalating as facile access to the abundant information of new and on-going series strengthens viewers’ wish to watch them immediately. The older generation is prone to despise speed groups’ ambiguous ethics but these groups are dominating today’s fansubbing scene. Third, globalization trends in fansubbing have brought out other powerful alternative ethics: the production and consumption of English fansubbing today are international projects thus stopping fansubbing when the anime is licensed in the US is anachronistic and US-centric. In addition to those who are not satisfied with the current state of anime distribution outside Japan, there are groups who simply ignore the issue of licensing.
Facing the significant dilution of the ‘stop when licensed’ rule, many fansubbers agree on that there is no longer a coherent set of ethics shared by members of the fansubbing community. Each group’s ethics are a product of negotiation between various factors such as its mission, the chosen anime series, the geographical location of group members and viewers and its perception of licensed anime and the anime industry. This multiplicity in ethics can be aptly demonstrated by fansubbing groups’ diverse attitudes towards the licensed anime:

Drop the project when licensed and encourage other groups to “vulture sub” the remaining episodes
Drop the project when licensed and complete the series internally as staff-only fansubs
Drop the project when licensed and compete translation, leaving open scripts behind
Drop the project when licensed and complete the series with a different spinoff name.
Continue when it’s licensed and persist until a C&D letter is issued
Continue when it’s licensed but complete the series with no bittorrent release (IRC only) Continue when it’s licensed and complete the series outright, C&D or not
Continue when it’s licensed and complete the series, along with any related materials released thereafter. (My interview with ANDY)

Fansubbing and distribution of anime
In the days of VHS subbing, there was no serious difficulty for fansubbers in controlling the circulation of their work. The fandom was domestic, and the quality of fansubbed anime was not comparable with legitimate products. Fans were willing to switch to and also collect legitimate anime when it was available in the US market. In the early period of digital fansubbing, its circulation was still confined to US fans, as the main means for distribution was Internet Chat Relay Channels. However, recent years have witnessed a surge of peer-to-peer as a primary mechanism for online distribution. According to an anime fansubs listing site Baka-Updates’ poll of their users as early as 2005 on how they downloaded the majority of their anime, almost 80% said that they used BitTorrent file sharing.7 Peer-to-peer file sharing programs dramatically speeded up the distribution process and broadened fansubs’ reach. This means that it is becoming incredibly hard for fansubbing groups to regulate the distribution of their work:
In old days, it was easy to control but now we can find subs that are five years old even when the DVD is out. It is kind of sad. In theory, the project should stop if a license’s done but…. Once it is out there, it is out there. (My interview with JAMES) Witnessing the expansion of digital fansubbing and the ubiquity of fansubbed anime on the Internet, the industry has begun challenging fansubbing’s legitimacy. It now asks fans to stop making and using fansubs and respect copyrights in anime (Smith, 2007). The US publishers have recently experienced a decline of anime DVD sales – consequently a few publishers such as AVD have ceased to exist – and insist that fansubbing significantly shrinks the market for DVDs. However it is hard to find an exact correlation between fansubbing and the drop in DVD sales as there are many other factors: e.g., broad economic environment, annual yield of popular products, pricing, introduction of new technologies (e.g., format change from DVD to Bluray), consumer trends, etc. (also see Hesmondhalgh, 2007; Oberholzer-Gee and Strumpf, 2007). Another issue is that fansubbers, as the most engaged and knowledgeable consumers make up the core of anime fandom in the US and are playing an essential role in nurturing demands for anime – either fansubbed or legitimate – by making buzz and diffusing relevant information. The way the industry can successfully stop fansubbing without alienating these loyal fans still looks uncertain. Facing the challenges from fansubbing, US anime publishers have begun launching online streaming services. In addition to Crunchyroll, many streaming sites are currently operating: e.g., YouTube, Hulu, Joost, NBC.com, Cartoon Network Video and Funimation Videos. Some sites are funded by advertising and thus can provide free streaming while others charge viewers a fee. This development is seen as a great leap forward for the industry but its impacts have been rather small. It is because fansubbed anime is more attractive than a legitimate streaming service in many senses: although the streaming is called ‘simulcasting’ there normally exists a time gap; some services are territorially bounded; and it is also noticeable that the visual quality of streaming services is far inferior to that of fansubbing, HD and Bluray fansubbing in particular. This perhaps implies that consumers’ labor can organize better quality distribution than that of the anime industry, making it even more difficult for the industry to control the distribution of its own products. As the existing fansubbing ethics are no longer providing the fansubbing community with a coherent rule to follow, many groups and viewers ignore the legitimacy of legal streaming.
Currently, the structure of fansubbing distribution is highly decentralized and difficult to coordinate. In peer-to-peer file sharing, there are no central organisations but multiple – very transiently existing – global networks among individual file sharers. With such a structure, it might be hard for the fansubbing community to reach a new consensus on their ethics: many fansubbers even feel that the field is too decentralized and globalised to be called a ‘community’ (GERRY, JAMES). With the absence of fansubbing centres and the lack of far-reaching ethics, the distribution of fansubs heavily relies on the popularity of individual titles. Fansubbed anime, as a semi-public good, is non-rivalrous and non-excludable but its diffusion depends on online traffic, i.e., the number of uploaders/downloaders. Popular shows are easier to find and download as there is more traffic while sharing of unknown ones takes time and effort. In order to overcome such limitations, some fansubs users have created closed torrent groups in which they can ‘control’ fansubbing distribution by minimizing free riding and securing a minimum level of uploading. To take an example, Group Z is a half- closed community for fansubbing file sharing. It not only imposes strict rules on its 13 members about upload/download ratio but also functions as a gatekeeper. It reviews the quality of fansubbed anime and decides on whether it will add the item to its catalogue. Available versions of fansubs are ranked according to the group’s criteria. At the same time, the group conforms to the old ethics: when copyright holders ask, it takes down fansubs. Interestingly, unlike most peer-to-peer communities, its website is open to non- members, thus they can have access to a wide range of fansubs – including non- mainstream ones – and speedy downloading with few restrictions. The emergence of such a group perhaps indicates a potential trend of the territorialisation of fansubbing ethics and its distribution. The recent dynamics in the anime fan community demonstrates that fans’ ethics and behavior are becoming more difficult for the anime industry to negotiate with. Consequently, anime distribution is being further detached from the hold of the industry’s distribution businesses.

Conclusion

The case study of anime fansubbing has unveiled the roles of consumers’ own ethics in shaping their practice of copyright infringement and in influencing the distribution of copied cultural products. At the core of fansubbing ethics, there has been fansubbers’ shared understanding of original producers’ copyrights as moral rights and US licensees’ as exclusive economic rights. In a sense, the fansubbing community’s perception of copyright looks contingent. It is discerned not as a definite right given to cultural producers but as ‘an arrangement’ made for consumers to support the producers and the industry. It is also seen drawing a line between what consumers and producers are entitled to with the cultural products. The line looks flexible and open to modification. Recently fansubbers’ respect for US licenses has increasingly weakened and consequently the fansubbing community is likely to show rather incoherent approaches to licensed anime. While members of the community are keen on discussing copyright and licence from the viewpoint of an arrangement to support the industry, no consensus seems to have been reached on what would be the best possible (new) arrangement
This paper argues that our discussion of copyright needs to pay more attention to consumer culture and behavior. Cultural consumers are active, social beings that constitute a dynamic part of the field of cultural production and distribution today. They make sense of their consumption practices in and out of the market mechanism in various ways and they are also capable of developing their own ethics and rules. This is particularly observable in participatory consumption grounded on unauthorized reproduction of copyright work, where consumers’ creative inputs are essential in the process. Copyright infringing consumers are not simply ignorant of copyright. While the consumers often question the moral legitimacy and practical efficacy of copyright, there also is a tendency that they – for example anime fans – partially embrace it as a mechanism for them to relate to cultural industries. Hence, this paper proposes that we 14 take a dynamic view of consumers’ copyright infringement: it is seen as a part of consumers’ navigation of the morally permissible behaviors of consuming culture and the potential social arrangements for them to support the cultural form they like and its producers. Cultural consumers hold their own opinion of copyright (infringement) and it is likely to be shaped by negotiations between their intuition, their consumption practice and its social and community context, and their relationship with the cultural industries. This makes it increasingly problematic for cultural policy makers and cultural industries to govern consumption practices simply through copyright protection.

References

Anime News Network (17.4.2002) ‘Tokyopop Uses Fansub Script for Initial D. http://www.animenewsnetwork.com/news/2002-04-17/tokyopop-uses-fansub- script-for-initial-d

Anime News Network (8.6. 2003) ‘New Ethical Code of Fansubbing’, http://www.animenewsnetwork.com/feature/2003-06-08/2 (accessed 5 August 2010).

Anime News Network. http://www.animenewsnetwork.com/industry-comments/arthur-smith- open-letter-on-fansubbing