Are anime providers stretching the law?
Todayonline.com / Singapore News / 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.
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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.
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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?
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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.
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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?
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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.
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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?
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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?
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And what about the threat of criminal prosecution?
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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.
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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.
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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".
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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.
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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.
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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.
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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?
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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.
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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.
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The writer is a legal academic. These are his personal views.
Thomas Koshy
