Japan Request a Harbinger of YouTube’s Overseas Troubles

December 5th, 2006

The AP reports that the Japan Society for Rights of Authors, Composers and Publishers has sent YouTube a request to implement a pre-post (and yes, official news sources also use the oxymoronic term “pre-post”) review process to ensure that no Japanese copyright-infringing material is posted to the video site.

This is interesting for a few reasons. First, the request comes within a month of YouTube’s removal of something like 30,000 Japanese clips at the request of the same organization. A quick search of the site comes up with roughly 40 copies of a Matrix-parody ping pong game from a Japanese TV show (very funny, by the way), suggesting that last month’s takedown may have bailed some of the standing water, but did nothing at all to stem the flow. This is not at all surprising, of course.

The really interesting point is how the Japanese request points toward a conflict between the DMCA’s notice-and-takedown rules and the IP protection rules used in other parts of the world. The DMCA was enacted by the US Congress as part of the US’s accession to two WIPO treaties, the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT). Notice and takedown, however, is not part of either treaty. US legislators developed that piece during the process of adding the treaties’ principles to US law.

Japan is one of 60 countries that have signed the WCT and 58 to sign the WPPT. However, as review of the list of signatories shows, just over a third of signing countries have ratified the treaties (never mind codifying the provisions into national law). Japan is conspicuously absent from the list, as is nearly all of Western Europe.

What does this mean for businesses relying on the DMCA’s notice-and-takedown safe harbors? It means that as contentious as that process is within the US (witness Universal Music Group’s lawsuits against Grouper and Bolt, and the latter companies’ vehement defense that they have complied with the DMCA throughout), it pales in comparison to what may happen when copyright-dependent US-based websites start to take off in other countries. Notice and takedown loses its power as an affirmative defense and is reduced to a mere symbol of good faith in trying to protect copyright. Where violations are rampant, as on YouTube, and local tribunals are likely to be sympathetic to home-country plaintiffs, it makes me start to wonder if the ~$200M holdback from the YouTube merger consideration will be enough to cover all claims everywhere.