Article 6

Are anime providers stretching the law?
Today Newspaper
Tuesday • August 21, 2007 - Thomas Koshy

ODEX has created quite a stir by threatening legal action against anime enthusiasts who had allegedly illegally downloaded copies of video recordings licensed to Odex.

It was reported that Odex is likely to seek compensation of up to $5,000 from each of the alleged offenders. Having obtained 1,000-odd names of such anime enthusiasts from the Internet Service Provider (ISP) StarHub, more names are now being sought from ISP Pacific Internet. If all this rakes in the millions that Odex seems to expect, it would not be surprising if more claims follow.

Lawyers have been quoted as saying that Odex is acting within its legal rights in making such claims. But is the case really quite so simple?

To start with, unlike typical copyright infringement claims which are made against commercial users such as retailers, Odex's claim is against consumers who downloaded the items for their own personal use.

Making copies for personal consumption can no doubt amount to copyright infringement. But whether such infringement entitles Odex to compensation of "up to $5,000" is an entirely different matter. If 3,000 claims are pursued by Odex, the total sum comes up to $15 million. Did Odex actually suffer losses on that scale?

Many of the consumers have commented that they downloaded the online copies because those were perceived as better than what was available from Odex. In such circumstances, it may very well be that if the online copies were not available these persons would not have even considered purchasing the Odex versions. No purchase means no profit for Odex. It would follow that Odex suffered no loss arising from the downloading.

Even if Odex did suffer a loss, there is the question of how Odex calculated the quantum of damages. For example during a trial offer, Odex bundled three DVDs for $9.90. Just how much downloading does it take to warrant claims that add up to $15 million or thereabouts?

One wonders, though, whether the brouhaha over Odex's civil claims may amount to little more than a storm in a teacup — at least in respect of the claims against students. After all, if no settlement is reached, is Odex going to throw good money after bad by spending thousands of dollars on legal action against children with no assets to their name? Or is the threat of civil litigation by Odex no more than a toothless tiger that may safely be ignored?

And what about the threat of criminal prosecution?

It has been about two years since the Copyright Act was amended to introduce the new section 136(3A), under which the making of copies even for personal consumption may not only lead to civil claims for compensation but may also constitute a crime if "the extent of the infringement is significant". But to date, not a single prosecution under section 136(3A) has been reported.

At the time this crime was introduced, the Director-General of the Intellectual Property Office of Singapore was quoted as saying: "Our idea is not to target the man in the street." But it appears that Odex has made the target the boy in the street instead.

A copy of one of the letters purportedly sent by Odex was posted on the Internet. It makes a reference to "criminal proceedings" and states that "infringement of copyright may constitute a criminal offense which are (sic) punishable upon conviction by fines of up to $10,000 per infringing article and/or imprisonment of 5 years" — thinly veiled threats which precede the invitation to enter discussions to "resolve the matter".

To start with, the power to prosecute crimes rests with the Attorney-General and not with Odex. The Attorney-General may delegate that power by issue of a fiat, and does so routinely where cases of copyright infringement are involved. But had Odex obtained such a fiat? This is a particularly pertinent question because section 136(3A) is only meant to be invoked in limited circumstances; and many of those whom Odex is pursuing are children.

Presumably, they would normally be let off with a warning at most. For example, in February last year, two Internet users were jailed for illegally distributing hundreds of MP3 files online but a 16-year-old student was let off with a warning because of his age. Odex's complaint is not even of distribution but merely of downloading.

Secondly, in the letter, Odex seems to have merged the issue of criminal prosecution with its civil claim for compensation. Surely it is not proper for Odex to tie in its demand for compensation with a threat of criminal prosecution.

Thirdly, although the Odex letter complains of "illegal downloading activity", the punishment quoted by Odex in the letter is for the offence of distributing copyright infringing materials and not simple downloading, for which the punishment would be a fine of up to $20,000 or a jail term of not more than six months or both — and that too, only if there was "substantial" infringement. Was Odex's citation of the heavier punishment an instance of improper scaremongering to induce capitulation?

The law affords much protection to copyright owners. But what has been disclosed of the Odex case gives cause for concern about whether the spirit of the law is being corrupted in practice. While private settlements between copyright owners and infringers may not normally be of general concern, the large number of people involved in the Odex case and the wide publicity generated sets it apart.

If indeed Odex has been overzealous in enforcing its rights, a check may be in order, lest the case becomes a benchmark for other copyright owners to emulate.

The writer is a legal academic. These are his personal views.

Reply:

Firstly, this article caught my eye as there was simply too much publicity of this issue everywhere on the internet. From all that I already know, I do feel that Odex is doing this for personal gains. It is the first anime licenser in Singapore to ever press charges against people who download anime. It might be one reason why it is receiving so much publicity, which consists mostly of bad comments.

The fact that they are pressing heavy fines on minors seems to be a disturbing fact. It is uncommon to see children who are not yet of the legal age being charged and on such a large scale as well. As a very frequent user of the internet, I have heard many times where people have been charged for redistributing illegal copies of copyrighted material on the internet, be it by direct links or peer to peer file sharing. It is extremely rare to see so many being charged for just downloading these copyrighted material. One of the rare cases that I have heard of a person being charged for this is one extreme case where the offender downloaded thousands of games for the Game Boy Advance.

One possible reason why people do not purchase Odex’s anime is due to their substandard quality of their products. Firstly, the anime is heavily overpriced on all the popular series that they have licensed. Secondly, the quality of the anime is extremely low, even playing in full screen on a screen as small as a computer’s would allow you to see the pixels, even worse when it is played on the larger screen of a television set. Thirdly, their English subtitles are poorly translated; even someone like me who has never learnt Japanese can point out mistranslations in their subtitles. How would a low quality product like Odex’s anime, ever sell well if it is priced so highly? I have heard of people purchasing their anime packages simply for the box, throwing away their disks, and placing their own better quality copies into the box to use as a gift to a friend.

Overall, I feel that Odex is overcharging people for downloading their licensed anime. They would never be able to rake it that much profit from the compensation should online downloads never exist in the first place. Most would decide to watch another anime from another company who is able to provide better anime, and to give Odex’s anime a miss. I feel the same way towards Odex’s products and hope that they would do something about the quality of their products to improve sales, and not rely on eliminating all other sources to create a monopoly to force fans to purchase their products. It is definitely the wrong way to sell their products.