WIPO Treaties and Minitokyo

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shinsengumi

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shinsengumi

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Some of you may be aware that there is a growing push by some major web portals to include the protection for webcasting in a WIPO broadcasting treaty. Under the stated proposals, websites will be able to legally control how images and sounds (but not the text) that appear on their websites are disseminated on the Internet. When I first heard of the proposal, the first thing I thought about was how it could potentially affect Minitokyo.

WIPO, for those unaware of the term, is the World Intellectual Property Organization, an international organization that works to establish common IP standards across the world. The intent of the organization is certainly honorable and most of its actions beneficial, but sometimes domestic implementation of WIPO treaties is highly unpopular. The Digital Millennium Copyright Act (DMCA) of the United States was, for example, passed as the implementing legislation for a WIPO treaty.

Because of its association with legislation such as the DMCA, many people are quick to denounce proposals for further WIPO treaties, but at the same time inclusion of webcasting in a broadcast treaty, if done correctly e.g. through distinction between public and private domain, can be extremely beneficial to sites such as Minitokyo where theft of artwork is a real and constant concern.

I admit, however, that I am far from being an expert on broadcast law and the specifics of the debate, and therefore would like to hear any comments that any others may have on the issue.

s h i n s e n g u m i
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I suppose that one immediate change to this place would be that there will be alot more erm...guidelines? on how images go around? Or rather, more control...heck, what am I talking about.

Ok, how about this. The management is going to have to review the policies so they'll be more in line with anything that gets signed. Or at least to be able to take more advantage of them.

  • Jan 14, 2006

Devildude

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So...forgive me of my ignorance, does that mean Minitokyo will have stricter laws in making wallpapers based on first hand artworks from Artists? Or are we gonna turn to like Deviant Art and implement a strict third party restriction of the use of original artwork?

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tsubasawingjing

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so..izzit Minitokyo will change the rules of summit artworks or something other rules ?forgive my question>_<
i dunno what happen...
but i think this is a serious problem... :\

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  • Jan 14, 2006

Spystreak

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Spystreak

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I believe it is more to deal with how artwork from MT is being downloaded and then redistributed on other sites without the express permission of the artists and in many cases MT artists work being posed as belonging to someone else.
This has nothing to do with the upload of peoples work or using official artowrk or otherwise in making walls. Nor does this create any new rules or guidelines that would restrict submission of artwork onto MT. This deals with the distrubution of said artwork on the internet. The whole point of bringing this topic to light is in reference to problems with the gallery in which walls and such have been taken and posted elsewhere without any knowledge or consent from the artist of that work.

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EternalParadox

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I am completely unfamiliar with the WIPO treaty, so I am going to throw this question out.

If my memory serves, the MT servers are in Singapore. Sheqel's from the Netherlands. I do not know if MT is held responsible under Dutch or Singaporean (sp?) law, but assuming that these countries become signatories of the WIPO, then what? What are the mechanism for the enforcement of its terms?

Seeing as we moderators and sheqel are the ones who are responsible for running the site and enforcing site policy, I think it would be safe to assume that we would represent Minitokyo when any issue arise. What if someone does steal artwork, or to use our familiar term, rip a wallpaper from a Minitokyo member and that member raises the problem to us, how exactly would we be able to represent the member and assert the intellectual rights protected? Would we need actual legal means? What if the ripper is from a country that is not a signatory to the WIPO?

Perhaps I am seriously too cynical, but I do see a number of logistical issues of enforcing the WIPO for a fan-based artist community such as Minitokyo.

Of course, my ignorance in the provisions of the WIPO and the nuances of law as it applies to the Internet may have made my questions irrelevant. If they are, please enlighten me on the enforcement mechanism of the proposed treaty. :)

EternalParadox
Previously the Forum, Vector Art, and Policy Moderator

  • Jan 20, 2006

shinsengumi

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EP, I think you've hit upon a very good point. Last semester, I chose the DMCA as the object of scrutiny for my term paper for a public policy class, and one of my conclusions was that the DMCA, in trying to implement the WIPO phonograph treaty, demonstrates the difficulties in trying to apply traditional enforcement mechanisms on the Internet.

The internet is a creature the likes of which has never been seen before. It has the characteristics of past mediums of communication, but at the same time it's something completely new. Governments and organizations have tried to use forms of regulation that are tried-and-true to other mediums of communication on the Internet, but the key problem is that the boundaries that exist in the current global order, arranged amongst sovereign states, is entirely different from the decentralized organization of the Internet.

If the treaty in question were to be passed, Minitokyo would probably come under the jurisdiction of the domestic power in which the site is physically based and would therefore utilize those judicial channels, but again the international scope of the Internet poses problems. How is a ripper to be caught? How will cases involving nationals of multiple countries be handled?

There are plenty of questions that need to be addressed, and more than likely the means of implementation will turn out to raise more problems than it solves. After all, the devil is in the details, but in the pretty, happy, smily world of ideals, it certainly sounds like a nice idea, doesn't it?

s h i n s e n g u m i
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Quote by EternalParadoxI am completely unfamiliar with the WIPO treaty, so I am going to throw this question out.

If my memory serves, the MT servers are in Singapore. Sheqel's from the Netherlands. I do not know if MT is held responsible under Dutch or Singaporean (sp?) law, but assuming that these countries become signatories of the WIPO, then what? What are the mechanism for the enforcement of its terms?


Actually, notwithstanding WIPO treaties governing copyright such as the Berne Convention & 1996 WIPO Copyright Treaty (WCT) or related ones such as WTO TRIPS Agreement (more for trade purposes) and EU Copyright Directive, intellectual property laws are still pretty much territorial for purposes of enforcement. The WIPO treaties represent the minimum standard of protection that member States agree to comply with and/or adopt in their national laws. Also, where servers are concerned, they are typically governed under the laws of the jurisdiction where they are located. In the case of MT works, the anime characters & scans belong to the artists or studios (that is obvious) but the wallpapers belong to the members that made them i.e. original composition. Since copyright will be guaranteed at the point of origin, (i) they will be first protected by the law of their own countries and (ii) the law of the country(ies) where the copyrighted work is brought in.

Lets say Sheqel makes a wallpaper. When it is distributed (released to the public), it will automatically be protected under Dutch law (itself a member of WIPO), the Berne Convention, the 1996 WIPO Copyright Treaty and EU Copyright Directive as the country of origin. When he posts/uploads the wallpaper into the server in Singapore, that wallpaper is brought into Singapore and is protected by Singaporean law as well. If the wallpaper is ripped and stored in a computer located in another country, it will be protected by the laws of that country as well (protection yes but standard of protection is another thing altogether).

Enforcement on the other hand is trickier. This is because countries may have differing levels of copyright protection and as such, even if MT chooses to take action by using a stiffer law, the lack of bilateral/reciprocal enforcement of judgement agreement between a WIPO member issuing the enforcement order and the target country (a non-WIPO member) can make the entire exercise moot. If there are no such agreement between the countries, the action will have to be brought in the country where the computer/server is located and be subjected to perhaps a lesser standard of protection. However, a large majority of countries are party to WIPO treaties (160 countries for Berne Convention alone) so by virtue of the treaties, all member states can carry out infringement action in the courts of the target jurisdiction with the same protection standard (more or less).

Quote: Seeing as we moderators and sheqel are the ones who are responsible for running the site and enforcing site policy, I think it would be safe to assume that we would represent Minitokyo when any issue arise. What if someone does steal artwork, or to use our familiar term, rip a wallpaper from a Minitokyo member and that member raises the problem to us, how exactly would we be able to represent the member and assert the intellectual rights protected? Would we need actual legal means? What if the ripper is from a country that is not a signatory to the WIPO?


Copyright is originally personal property and as such, only the owner has the standing to bring legal action (if it even goes that far). However, in most circumstances of ripping that I know of, they are not done with the purpose of making profits and there are no profits generated from the infringement so there is no actual loss and cause of action there i.e. a bare claim at most.

The most MT admin and mods can do (I think) is to notify the ISP where the ripper is registered with along with grounds of complaint + evidence. The ISP should then be able to take action against the ripper including taking it off (if the ISP has such policy in its terms).

EternalParadox

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Regardless of who (we moderators or the MT member) presses the complaint against copyright infringement, I do not feel that there is much that we can do to enforce copyright protection. Furthermore, if there is "no actual loss and cause of action," then what purpose does the WIPO truly serve to protect the creative efforts of MT members?

Should there be actual loss, the definitions of which is vague at best, prosecution of copyright infringement remains a very fuzzy affair. After all, it took years of online music filesharing and p2p for the US Supreme Court to finally decide a case on whether the p2p program itself is conducive to infringement. Take that to our MT sphere, to actually assert the intellectual rights of a member and have tangible results of rights protection would require significantly more legal resources than I feel that we have. Even if there is a serial ripper who steals half the MT wallpaper gallery and redistributes it somewhere else, even if it is in a signatory nation, we would require venues of approaching the law enforcement agencies of that/those nation(s) and the legal and financial means to continue pressing the charge beyond the mere paper complaint.

Shin is right. The internet is truly a creature of a completely different genus and species. But even more so, I believe that by the nature of Minitokyo as a fan-based and organized community, we do not have nearly as strong a voice in protecting the intellectuall rights of our members as do commercial publishing firms. Just look at the incident with hongfire for example.

But yes, the WIPO is very attractive in the world of ideals. :)

EternalParadox
Previously the Forum, Vector Art, and Policy Moderator

  • Jan 20, 2006
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You can tell that the WIPO is basically evil simply from its name. Anyone who uses the term "intellectual property" is either trying to confuse you, or is confused themself. Given that the WIPO practically invented the term, it's pretty obvious which of the two applies to them.

That it's an organisation whose purpose is to create restrictions in freedom should be another clue. It's basically a powergrabbing project by a number of large corporations. If you don't want your life to be increasingly controlled by a few large media conglomerates, then it's a good idea to resist the machinations of the WIPO.

Considering that Minitokyo itself relies on repeated copyright disobedience when duplicating artwork drawn by others to make wallpapers (eg. using a scan from an artbook), I would have thought it was pretty obvious. (I'm not even sure that you can impose copyright restrictions on a work that has itself been made in violation of copyright restrictions.)

EternalParadox

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Actually, extracting specific characters from a scan for use in the artistic creation of a wallpaper is not copyright infringement. Such activities fall under the term "fair use" and do not require permission from the studio artists.

Fair use is defined by the following taken from the Stanford University Libraries: http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

In terms of Minitokyo, members:

1. use scans for the purpose of artistic creation for personal enjoyment, not for profit,
2. use scans and produce wallpapers of a nature that does not interfere with the publishing of the original scan book in the print medium,
3. use a fairly small portion of the original scan by extracting only the specific character of interest, and
4. create wallpapers that do not diminish the market value of the original scan books in the print medium.

Criteria number 1 is the most critical standard for determining "fair use." To quote the Standard University law center:

At issue is whether the material has been used to help create something new, or merely copied verbatim into another work. When taking portions of copyrighted work, ask yourself the following questions:

* Has the material you have taken from the original work been transformed by adding new expression or meaning?
* Was value added to the original by creating new information, new aesthetics, new insights and understandings?

Minitokyo members answer yes to both the above questions. The scan is used in a "transformative" manner as a part of the process of artist creation. They also add new aesthetics to the original scan extraction with the amount of brush work, layering, background, lighting, etc. that they put into the final piece of the wallpaper.

As such, Minitokyo is not infringing copyright of the original studio artists because their work is "fair use."

When other people take the wallpapers of MT members and submit them in another gallery without permission and sometimes by impersonating the MT member(s), that is not "fair use" because the work is copied verbatim without permission.

EternalParadox
Previously the Forum, Vector Art, and Policy Moderator

  • Jan 23, 2006
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Basically, it all gets very complicated, and unclear, and you need to make judgements about just how much of a difference there is between this scan and this wallpaper, (and maybe the difference is big enough in some cases but not in others), and whether it ends up as illegal or not may well be a random variable based on different judges that you may or may not hypothetically get.

(Of course, since none of this is ever likely to actually go in front of a judge, one can make an argument that everything that's under consideration in this thread should actually be regarded as legal, because laws are basically sets of consequences for actions promised and imposed by the state, so if you never actually get any consequences, then it's not really a law, just something written down on a bit of paper.)

Well, that's bad laws for you.

Still it would make an interesting stick to beat uninteresting wallpaper-makers with. "Low-effort wallpapers may not qualify for fair-use exceptions, and so are probably illegal".

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