By: Chitresh Baheti & Krati Sharma

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“Subtitling conventions are not set in stone and only time will tell whether these fansub conventions are just a mere fleeting fashion or whether they will… become the seed of a new type of subtitling for the digital space.”  – Diaz Cintas and Munoz Sanchez, 2006

Audio-visual translation represents an area where the tussle between the professional norms and freedom of users, primarily “fan-produced, translated, subtitled version” exists and has come to be known as Fansubbing. Fansubbing, also known as Fan-subtitled[1], is an unauthorised translation in the form of subtitles. It can be referred to as “non-professional subtitling, making a reference to subtitles created voluntarily by fans for fans”[2] which is mostly related to Anime and Abusive subtitling.[3]

Fansubbing is arranged at the disjuncture of the worldwide mediascape, which strengthens with the public access to duplicates. It offers the development of aggregate learning and the ascent of fans’ deliberate work facilitated on a worldwide scale. It embodies participatory media where globalization surpasses that of social enterprises regarding degree and speed. There are mainly two major types of fan-subbing,[4] soft-subs, in which text files “whose format depends on the exact subtitle encoding software to be used for interpretation” and hard-subs which are “video containers where subtitles have been encoded into the video stream”.[5]

Fansubbing dates back to even before the Internet community realised its existence. The fans used to order laserdisc from Japan and used extensively expensive machinery to supplant subtitles into the recorded tapes. Such tapes were then distributed via dealers who had a limited area of working and high costs. Therefore, the fansubs were not in a position to compete with the industries which had huge resources and good distribution network to translate the tapes.[6]

Fansubbing translation is carried out by fans for the fans, with the motive of internationalising and increasing access to unlicensed movies, TV shows, Anime, and Manga. The profit motive involved in such translation is absent.[7] Past investigations have demonstrated that the respectability of numerous media works is in danger in various nations. For example, Japanese animation is subjected to serious control in the United States of America. The explanation behind this is that it channels vicious and sexual substance in the local dialect.[8] The infamous instance of the revamping of Hayao Miyazaki’s Nausicaä of the Valley of the Wind (1984), turned out to be a business and aesthetic disappointment.

In an interview, Isao Takahata, the maker stated: “Censoring them is worse than betraying them”.[9] In addition, even a portion of the kids’ shows is censored for TV broadcasting in the United States of America.[10] International media works in China are confronting a similar issue: a meeting conducted by the China Central Television (CCTV) demonstrates that “imported animation works are under different levels of oversight, to cater for the works for youngsters”.

The authentic elucidation of translation rights for artists moved from esteeming the work and endeavours exhausted in translating, to an upgrade of statutory insurance for an artist’s restrictive ideal to translate their works. This new type of insurance for artists does not have a discerning of an appropriate harmony between ensuring artists’ rights and perceiving the social estimation of translations for specific works. Considering the balance test between the translation privileges of artists and the social estimation of translations is expected to grasp the part and significance of fansubbing.[11]

The principles which revolve around the rights and ownership related to such translation have evolved the current dynamic perception in International Copyright Law.[12] The present laws dealing with fansubbing consider it as “illegal & illicit access to art without properly compensating artists” since a majority of the users use the fansubs version without purchasing the original work of the author. Laws governing the International Copyright Law include the Berne Convention, Uruguay Round Agreement & the Universal Copyright Convention.

The author has all the right to translate his work, to regularise the quality and appurtenance, to adjust the timings of such change etc. The first move towards the protection of artist’s right to translations was highlighted in Berne Convention for Protection of Literary and Artistic Work, 1886. Article 8 of the said convention provides for: “Authors of literary and artistic works protected by this Convention shall enjoy the exclusive right of making and of authorizing the translation of their works throughout the term of protection of their rights in the original works.”[13] Moreover, Article V of the Universal Copyright Convention provides for translation rights to the author, in terms as “copyright shall include the exclusive right of the author to make, publish, & authorise the making and publication of translation of works…”  Apart from this, international law has certain other provisions for the protection of authors’ rights in the form of ‘Attribution and Integrity.’[14] Attribution means the right of an author to claim the work and right to prevent others from taking credit for the work which they aren’t entitled to. Integrity means the artists’ right to prevent ‘any deforming or mutilating changes to his work’. This was included in the Berne Convention in 1928. In toto, the International Copyright Law provides for stricter challenges for fansubbers. The renowned authors have criticised the works of fansubs and even highlighted their work as a blatant infringement of copyright. They also chastised fandoms for unfettered access to copyright works for granted due to the advent of torrents and scanlations.[15]

Despite the presence of a wide range of confidence and inspirations, fansubs are regularly condemned for their potential copyright encroaching nature. With respect to the actuality that business privateers are exploiting fansubs, grabbing the fan-interpreted subtitles, the video records, offering them straightforwardly, the fansub groups began to put certain notices and disclaimers into their fansubs, with the end goal of self-direction and group standard setting. It is sensible to state that fansubs are an immediate consequence of restriction: fans make and disperse fansubs in light of the fact that they trust that the authorized adaptation may not reflect, and may even twist, the first articulation of the remote audio-visual works.

Fansubbing is a type of piracy. The act of downloading TV programs or films through digisubbing or circulating through P2P arrange documents or in another configuration. The activities of many fansubs will be against the posited law at the international platform. Therefore, the evolution of a better and reformed model to counter the unscrupulous practices of fansubs, along with the provisions to protect the needs of such fansubs groups has become the need of the hour. The benefits of such fan subbing clearly outweigh the potential damage to the original author’s copyright. The complete restriction on fansubbing will eventually result in hampering market growth and distribution of foreign programmes. But as the situation changes and a plethora of studies conducted, the two forces pulling the fansubs will have a huge impact on the current digital world.

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[1] Sean Leonard, ‘Celebrating Two Decades of Unlawful Progress: Fan Distribution, Proselytization Commons & the Explosive Growth of Japanese Animation’ (2005) 12 UELR 189.

[2] David Orrego-Carmona and Yvonne Lee (eds), Non-Professional Subtitling (Cambridge Scholars Publishing 2017) 3.

[3] id.

[4] Tessa Dwyer, Speaking in Subtitles (Edinburg University Press 2017).

[5] ‘Attaching Subtitles to Video’ (Aegisub) <http://docs.aegisub.org/manual/Attaching_subtitles_to_video&gt;.

[6] Anthony Fiola, ‘Japans Empire of Cool’ (Washington Post, 27 Dec 2003) <https://www.washingtonpost.com/archive/politics/2003/12/27/japans-empire-of-cool/ab1ae69f-756a-487c-8b34-2823072f342a/?utm_term=.e25866e499a2&gt;.

[7] Northrop Davis, Manga and Anime Go to Hollywood (Bloomsbury 2015).

[8] ibid 1.

[9] Tianxiang He, Copyright and Fan Productivity in China: A Cross-Jurisdiction Perspective (Springer 2017).

[10] Jason Mittell, Genre and Television: From Cop Shows to Cartoons in American Culture (Routledge 2004) 64.

[11] Govind Abhijith, ‘A Critical Analysis of the Subculture of Fansubbing and Scanlation of Japanese Media and Copyright Law’ (2017) 3 HNLU SBJ 51.

[12] LaToya D Rembert-Lang, ‘Reinforcing the Tower of Babel’ (2010) 2 IPB 21.

[13] Berne Convention for Protection of Literary and Artistic Work 1886 art 8.

[14] Cassandra Spangler, ‘The Integrity Right of an MP3: How the Introduction of Moral Rights into US Law Can Help Combat Illegal Peer-to-Peer Music File Sharing’ (2009) 39 SHLR 1299.

[15] Salil Mehra, ‘Copyright and Comics in Japan: Does Law Explain Why All the Cartoons My Kid Watches are Japanese Imports?’ (2002) 55 RLR.

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(Chitresh & Krati are currently students at Dr. Ram Manohar Lohiya National Law University and The Maharaja Sayajirao University, Baroda respectively.)