Is Taiwan Ready to Join the Trans-Pacific Partnership? – A Brief Discussion on the Legal Controversy of Dōjinshi

Author: Jamie. C. Yang, translated into English by Colbert Hung

According to the media coverage, legislator Lu, Shiow-Yen criticised that Ministry of Culture (“MOC”) failed to regulate or subsidize the costume play events (cosplay) by specific legislation and even accused the MOC of administrative omission. The appropriateness of legislator Lu’s comment aside, the issue of cosplay and dōjinshi is one that involves copyright law, freedom of expression, international covenants and the domestic cultural policy.

Photo Courtesy Ricardo 清介 八木 CC BY 2.0

Dōjinshi is defined as works that are based on other stories (mostly comic books) and further change the scenarios, characters, or combine several stories. This type of work finds its source from the original works, but added with the adaptors’ creativity. Cosplay, as its name shows, refers to the imitating performance of the characters of animations, comics or games. It may take the form of total imitation or partly change by the performer.

Since dōjinshi and cosplay contain others’ original works, the legal evaluation could start here. According to the principles in the Copyright Act, the higher the portion of newly added creation, the more likely the work is deemed as an adaptation. Otherwise it may be deemed as a mere copy. However, no matter whether it is a copy or an adaptation, the second author must do so with a license from the original author.

What is worth noting is that not all copies and adaptation violate the law. There are exceptions under which copies and adaptations can be legal even without prior consent of the original authors, and this is the fair use principle. The Copyright Act in Taiwan listed specific actions which qualify as fair use in different articles and generally speaking, fair use refers to those works for the purpose of charity, non-commercial, small scale or individual usage. There is no bright line rule regarding whether dōjinshi and cosplay constitute fair use.

For example, little boys dressed up as comic book’s character such as Luffy in Onepiece or student comic clubs in school draw the dōjinshi about Slamdunk may still be considered fair use. On the other hand, if a private organizer holds a fair with the Onepiece them and asks all its staffs to dress up as characters in Onepiece and charge the visitors for entry fee or a publishing house which compiles several dōjinshi of Slamdunk and publishes it as books, one will find it difficult to fit such facts under fair use.

In Taiwan, breach of the Copyright Act (not including the doctrine of fair use) would result in criminal liability. However, the crime will only be proceeded if the victim alleges harm suffered to the court, the system is called “antragsdelikt (indictable only upon complaint)”. The design of antragsdelikt allows the copyright owner to have the right to choose whether to proceed or not. In fact, most of the dōjinshi and cosplay authors/actors are also big fans of the original works and the sale of the originals will not be affected by cosplay or dōjinshi, rather it is more often used to pay tribute to the original works or help them gain public exposure. The antragsdelikt design of the reproduction offence enables the copyright owner to have chance to forgive those fans who are indeed helping them gain popularity. This further promotes bilateral relationship and interaction.

The system of antragsdelikt may be changed in the near future as Taiwan is now actively endeavour to join the Trans-Pacific Partnership (TPP) Agreement. According to the rules of the Agreement, for intentional copyright infringement at commercial scale, the member countries should proceed the criminal litigation without considering a complaint from the copyright owner, and abandon the system of antragsdelikt. Under the Agreement, “on a commercial scale” includes at least (a) acts carried out for commercial advantage or financial gain; (b) significant acts that have a substantial prejudicial impact on the interests of the copyright or related rights holder in relation to the marketplace.

The abovementioned new rule is extremely likely to conflict with dōjinshi and cosplay community. As analysed in the above paragraph, dōjinshi and cosplay activities may generate revenues and goes beyond the scope of fair use, but the original author may not object, or even allow and encourage the so called “infringement.” Circumstances will change as the TPP rule stipulates that the member countries should proceed with prosecution for an infringer “on a commercial scale” without a complaint from the original author.

Even though TPP allows the member countries to abolish the antragsdelikt system only to cases that would affect the profit of the original author, the fact that whether the work affects the profit of the original author or not usually cannot be ascertained without going through the process of criminal investigation. Thus, even though a member country may abolish the antragsdelikt system only to extent of the abovementioned scope, dōjinshi and cosplay works is still vulnerable to criminal prosecution. The TPP related rules have resulted fierce objection by a member country, Japan, because cosplay and dōjinshi in the country is extremely popular; the objection can be deemed as a reasonable decision made by Japanese based on their cultural customs.

Turning back to Taiwan, should the government regulate and subsidize cosplay activities with specific legislation? As the previous analysis shows, further usage of cosplay works (such as establishing theme parks or adapting into films or TV series) may go beyond the scope of fair use and requires a license from the original author. Should the government be responsible for subsidizing the licensing fee for the activity organiser? Considering the fact that cosplay characters’ copyrights are to a large extent held by American or Japanese authors and the limited resources our government has, is it reasonable to expend this sort of governmental subsidy? Or should the Taiwan government give priority to support the domestic original authors and their work? Such questions are definitely worth contemplation by the general public.

Extensive Readings:

• Cosplay沒人管　盧秀燕批文化部行政怠惰