Dutch Court Rules That Freely Given Fan-Subtitles Are Copyright Infringement
from the can-you-translate-that? dept
For some reason, there has been a sub-war raging for more than a decade between anti-piracy groups and fans who create free subtitles for content so other regions can enjoy that same content. While much of this war has been fought for years on the anime front of all places, the conflict has spread to mainstream movies and television as well. And it is a painfully dumb war to fight at all for the content creators, whose publishers have failed to provide the subtitle translations that are obviously in demand, and which would open up new markets at no cost for them. Instead, they typically choose to scream “Copyright infringement!” at these fans instead.
In the Netherlands, one group of fans that creates free subtitles in this way took BREIN to court to have its work declared kosher. Unfortunately, the Dutch court appears to have drunk the BREIN kool-aid on how fan subtitles are the bane of the entertainment industry and used only by pirate-y pirate types.
The Free Subtitles Foundation, after coming under fire from the Netherlands’ anti-piracy association BREIN, decided to raise some money and take BREIN to court. The Foundation’s lawyer told TorrentFreak that the lawsuit sought to clarify whether the creators of a TV show or movie can reserve the right to create and distribute subtitles.
And indeed, that’s exactly what the court ruled: that subtitles can only be created and distributed with permission from the rights holders. Doing so without permission is copyright infringement, and thus punishable with either jail time or a fine, depending on where you live.
Now, FSF took this to court because BREIN has a habit of threatening fans who create these free subtitles. It’s important to draw the distinction that this is about copyright here, because the key point in all of this is that BREIN does not have to threaten fansubbers at all. This isn’t trademark law. There is no requirement to police this sort of thing. This kind of action only makes sense if either fansubs are a true danger to the entertainment industry or if BREIN and other anti-piracy groups are in the habit of seeing dangers everywhere they look and picking unneccesary fights.
One of those is certainly true. Fansubs, long vilified by the content industries, have actually been shown to open up entire new markets for content where the creator or publisher didn’t bother to create subtitles for those markets. And, taking a step back, the very, very simple fact is that fansubs wouldn’t be needed at all if those same subtitles were offered up by the publishers themselves.
Much like file sharing websites themselves, actually policing subtitle sites will be difficult. Just look at the world of anime fansubbing, which has been under fire for more than a decade but is still going strong—or, in some cases, has shifted to just straight-up anime streaming websites with baked-in English subtitles. A better solution might be for content creators and distributors to release officially subtitled content simultaneously worldwide, much in the same way that some big American TV shows and movies are now being released in Europe and Asia at the same time, rather than a few months or years later.
What fansubs actually do is serve as free market research for content publishers to determine where additional demand for their content is geographically. A freely given fanmade subtitle to a movie or show is only necessary when content providers don’t provide it first. The product is not serving the market in which the subtitles will be used, which makes targeting them for copyright infringement all sorts of silly.