Site Blocking in Japan—A Call for Action

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In my last blog I discussed the growing problem of online piracy in Japan, and the importance of site blocking as a potential remedy. Site blocking has proven to be a particularly effective remedy against rogue pirate sites that set up in jurisdictions beyond the reach of domestic law, as I have outlined in previous blogs on the subject (here and here), and has been adopted by more than 40 countries world-wide.

In Japan, although there is broad recognition that it would be an effective tool to use against the growth of online piracy, there are legal and cultural issues to consider. The biggest obstacle appears to be legal, namely the provisions of the Japanese Constitution, Article 21 (2) and Article 4 of the Telecommunications Business Act which relate to “secrecy of communications”. The Japanese Constitution states that,

No censorship shall be maintained, nor shall the secrecy of any means of communication be violated”.

The Telecommunications Business Act, Article 4, states, in part,

“(1) The secrecy of communications being handled by a telecommunications carrier shall not be violated; (2) Any person engaged in the telecommunications business shall, while in office, maintain the secrets of others that have come to be known with respect to communications being handled by the telecommunications carrier. The same shall apply even after this person’s retirement from office.”

This penchant for privacy and secrecy goes back to pre-WW2 days, I was told, when the military authorities censored the press and spied on personal communications. Therefore it is both a legal and a cultural concern.

Let’s assume that the Constitution is not about to be changed to address the issue of site blocking and that Section 4 will remain on the books. How then can Japan move forward to join the growing international consensus to adopt site blocking as one important and effective tool to combat online piracy?

This was the core issue discussed at the 7th Motion Picture Association (MPA) seminar in which I participated as part of the 30th Tokyo International Film Festival. Co-organized by UNIJAPAN with the support of the US Embassy in Tokyo and the Federation of Japanese Film Industry (FJFI), the seminar was held on the afternoon of October 27. I was honoured to have been invited to make a presentation on the effectiveness of site blocking and its expanding reach globally. Others presenting and participating in the follow-on panel included Dr. Haramuchi Yuasa, Professor at the Graduate School of Information Security, Mr. Nobuo Kawakami, Chairman and CTO of Dwango Co. Ltd, and Mr. Tomohiro Tohyama, Attorney-at-Law and Partner, TMI Associates. Senator Christopher J. Dodd, Chairman of the MPA, Mr. Takeo Hisamatsu, Director of the Tokyo International Film Festival and Mr. Takayuki Sumita, Secretary-General of the Intellectual Property Strategic Headquarters in the Cabinet Office, all made opening remarks.

Two interesting lines of argument emerged from the discussions. Mr. Tohyama pursued the line of reasoning that the act of site blocking does not interfere with privacy or secrecy of communications, and therefore concerns about violating Section 4 and the Constitution are moot. He pointed out that the installation of a site block by an ISP is similar to the establishment of a road block on a highway, preventing cars from passing through. The road block is established by the installation of a barrier placed on the highway (which could conceptually be the electronic highway that takes the user to the pirate website through the domain name server, or DNS, of an ISP.) Once installed, it is left in place to prevent traffic from passing. However the person or entity establishing the block is no longer present to inspect each car. When vehicles approach they are blocked by the barrier that has been pre-installed.

The same principle applies, according to Mr. Tohyama, with site blocking. An ISP sets in place the barrier by blocking the link that connects the user to the requested website through the DNS of the ISP. The key point is that the ISP has no greater knowledge of the user or the user’s identification whether a site is blocked or not blocked, i.e. whether the request from the user is simply passed through the internet domain searching system to connect the user to the requested site, or is not passed through. In other words, an ISP does not acquire, by virtue of site blocking, any further knowledge of information, “secret” or otherwise, that it did not already have access to prior to the block.

Mr. Tohyama has published a paper co-authored with Michael Schlesinger, Esq. which has been published in the CRIC journal (Copyright Research and Information Center). A key conclusion from the paper is that site blocking does not violate the constitution and the Telecommunications Business Act. The interpretation that it does so is faulty because it is largely built or supported by three incorrect assumptions, namely that

1) an ISP acquires, by virtue of site blocking, knowledge of secret information;

2) an ISP steals or uses, by virtue of site blocking, that secret information; or

3) an ISP, by virtue of site blocking, leaks or discloses secret information to third parties.

Professor Yuasa of the Graduate School of Information Security took a different approach to the issue. He argued, based on the precedent of how child pornography was blocked in Japan, that even if site blocking technically infringed on the secrecy of communications, that this could be justified for social reasons if the matter was sufficiently urgent. For example, site blocking is an effective tool to combat computer viruses and malware, and given the prevalence of cyberattacks, security of the internet could be one such urgent case.

He pointed out that a complication of Japanese law is that while it is possible to prohibit an action, it is more difficult to order that an action take place (i.e. institution of a block) since injunctions are not part of the Japanese legal system. However, it is important to look at what remedies are available to combat online piracy given that users know that obtaining infringing content from pirate sites is illegal. Given the underlying illegality of accessing copyright infringing materials, if other options do not work a case could be made for the institution of site blocking. One option could be for the Ministry of Internal Affairs and Communication to issue a “guideline” that would allow an exception to the secrecy of communication law. In sum, while creating an exception to the privacy and communications secrecy laws for the purpose of combatting copyright infringement would be a high hurdle to get over, if site blocking was the only truly effective measure to combat piracy, it may be possible to find a solution in Japan.

Mr. Kawakami of Dwango argued strongly for site blocking as the only effective way to prevent massive online infringement in a borderless internet.

The conclusion of the seminar was that progress is needed on site blocking in Japan now. There has been much talk of “further research” and “more study” being needed, but the case presented for the institution of site blocking to deal with growing online piracy is compelling. Whether the solution lies in achieving consensus that there is no interference with privacy or secrecy of communication as a result of the technical process used by ISPs to establish a site-block, or whether it is by finding a way around the legal constraints by invoking over-riding public policy reasons, implemented through interpretive guidelines issued by the ministry responsible, either way early action needs to be taken. The time for further study on site blocking is over; the time has come for the Japanese government to take action.

© Hugh Stephens, 2017. All Rights Reserved.

Online Piracy in Japan: How Big is the Problem—and what’s an Effective Solution?

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Japanese people are rightly noted for their honesty. We have all heard the stories of wallets left on park benches being returned or just left for the owner to find. This theory was tested last year with the results shown on Youtube. Out of 15 “inadvertent” wallet drops in Tokyo, all 15 were picked up and returned to the owner. That’s quite a record. This code of behaviour largely extended to DVD and CD piracy a few years ago when these formats were popular vehicles for piracy in many parts of the world. While it was possible to find pirated videos in Japanese cities, piracy rates in Japan were consistently low—by some estimates as low as 5%–whereas in many countries (China being an example) the piracy rates were north of 90%. I have heard Japan’s fabled honesty attributed to everything from the Samurai code to the shame based (loss of face) ethics of a Confucian society—although the latter certainly has not had any impact on piracy rates in China, where Confucian tenets are still supposed to influence behaviour. Whatever the cultural reason, the odds of getting your wallet back in Japan are much better than in just about any other country in the world. Continue reading “Online Piracy in Japan: How Big is the Problem—and what’s an Effective Solution?”

Canadian Literature in Canadian Schools and the Duration of Copyright Protection (Don’t Mix Apples and Oranges)

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If you are fundamentally opposed to any consideration of extending the term of copyright protection to benefit authors and creators, and if you are sufficiently creative in twisting logic, then you can find justification for your position just about anywhere. This is exactly what Michael Geist has done in taking a study released by the Ontario Book Publishers Organization (OBPO) on the lack of Canadian literature in Ontario classrooms and using it to try and argue that it proves his case for opposing any extension to the term of copyright protection. He is trying to put a round peg in a square hole. Continue reading “Canadian Literature in Canadian Schools and the Duration of Copyright Protection (Don’t Mix Apples and Oranges)”

Netflix in Canada: Let No Good Deed Go Unpunished

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Let’s say you are Netflix and you have been very successful in promoting your content subscription service, and have succeeded in signing up roughly half the households of a given country. And let’s say that this country is concerned about preserving its means of cultural expression in an audio-visual world largely dominated by major US producers of content. In pursuit of this goal, this country has for years maintained a variety of policies designed to tilt the playing field in favour of its domestic content producers (with limited success, I might add.) One of these policies is the creation of a domestic content production fund into which broadcasters and content distributors (but not online distributors) must pay a percentage of revenues. And let’s say that a number of stakeholders in this country, from the direct competition to domestic producers of content who are subsidized by the content production fund want you, Netflix, to be required to contribute to the fund in order to expand it so as to make yet more domestic content. That’s not all. As an entity outside Canada selling a digital product, you are not required by law to collect sales taxes on your Canadian subscriptions but you are nonetheless being accused by your Canadian competitors of having an unfair advantage. If you can absorb all that, then you will have some idea of the issues that Netflix is grappling with in Canada. It’s a minefield–with many people laying mines. Continue reading “Netflix in Canada: Let No Good Deed Go Unpunished”

Chihuly and his Art: Who is the True Creator?

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I am not sure how I managed to go through my entire life without being aware of Dale Chihuly and his work, at least until recently, but somehow I managed it. I clearly was not on Planet Glass. When the Chihuly exhibit came to the Royal Ontario Museum in Toronto a few months ago, my wife (who was fully au fait with Chihuly), suggested we go. Always willing to broaden my horizons, I went—and was blown away (pardon the pun) by the spectacle. I wandered through crystal forests of spiky rose coloured plants and ventured into brilliant glass gardens, admiring blown sculptures in phantasmagorical shapes and images. It was truly an unforgettable experience. How could he be so creative, I wondered? And so prolific!

Continue reading “Chihuly and his Art: Who is the True Creator?”

Would Site Blocking (Disabling Access to Copyright Infringing Websites) Work in Canada? Quite Possibly—It Works Well in Australia and the UK.

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As the US, Canada and Mexico wrestle with the difficult task of “updating” NAFTA (judging by press reports of negotiating demands from the Trump Administration, the US wants to turn a Free Trade Agreement into a Managed Trade Agreement, with management in the hands of the US, but that is another story), among the issues to be looked at is the protection of intellectual property. When NAFTA was negotiated in the 1990s the internet was in its infancy. Things like e-commerce and digital piracy had yet to appear. It is a different world today, and arguably one area where all three countries could benefit is to update the provisions of the agreement that deal with the digital world. Online digital piracy has become a big issue globally, undermining the entertainment industries (music, film, television) in all three countries and eroding the value of content paid for and distributed by broadcasters and online content providers. Continue reading “Would Site Blocking (Disabling Access to Copyright Infringing Websites) Work in Canada? Quite Possibly—It Works Well in Australia and the UK.”

Copyright and Politics: Interesting Bedfellows

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On June 22 of this year, Christy Clark, Premier of British Columbia, commonly called “BC”–where yours truly happens to live–presented her party policy platform (aka the “Speech from the Throne”) to the BC Legislature. Ms. Clark and her BC Liberal Party had just won 43 seats out of a possible 87 in the election concluded the previous month. (You may have noticed that 43 is not quite a majority—and that is the nub of the issue). In her policy speech, which is the first act of a new government where it must gain the “confidence of the House” by having its policy proposals approved by a majority vote, Ms. Clark performed a remarkable political turnaround. Continue reading “Copyright and Politics: Interesting Bedfellows”