Back in 2004 I found myself at an electronics store in Japan, buying some CDs.  When the cashier rung them up, I was surprised to discover that each one cost about $35 worth of yen.  I remember later asking a Japanese friend why Japanese music CDs cost so much more than American music CDs, and his response was that it was a consequence of the Japanese music industry losing too much money from music piracy.  Truth be told any number of things could have contributed to higher CD prices in Japan, but he may have been right that music piracy in Japan was a serious problem.

According to figures released by the Recording Industry Association of Japan, the Japanese online market for music is second in the world only to that of the United States, but only 10% of it is legal.  I don’t know enough about what comparable rates are in other countries, but 90% of a market rate of illegal downloads certainly sounds dramatic.  Statistics like this from recording industries can certainly be insightful, but a caveat is in order: a 90% figure of illegal downloads does not necessarily mean that 90% of your business is being lost.  The consumer’s choice isn’t always only to download music legally or illegally.  The third choice is to not purchase music at all.  Nevertheless, it’s a strong figure that helped the RIAJ to lobby for harsher anti-piracy laws.

Japan’s newest copyright law went into effect just this past Monday, adding to the already steep consequences possible under its anti-piracy regime.  Those who illegally uploaded music were already subject to a 10 million yen fine (almost $130,000) and up to 10 years in prison, but the new law makes illegal downloading a criminal offense as well.  A little less harshly, those found to illegally download music are now subject to fines and prison time of 2 million yen ($25,700) and 2 years in prison.

Imposing criminal instead of only civil liability for illegal music downloading is a big jump for Japanese copyright law.  One could argue that it isn’t because illegal uploaders were already subject to criminal liability, but that would wrongly equate them with downloaders.  If my own observations in the United States are paralleled in Japan, many people recognize a difference in potential liability between uploaders and downloaders.  Plus, imposing criminal liability in one context doesn’t necessarily minimize the significance of imposing it in other, related contexts.

A group representing legal professionals in Japan counsels that criminal sanctions for personal activities that only “insignificantly” harm property interests like copyrights should be done cautiously.  In a country where significant numbers of people oppose and have protested this new balance of interests regarding music copyrights, there’s merit to questioning the wisdom of escalating punishment instead of other avenues.  In the United States the RIAA has moved beyond a strategy of enforcing its copyrights against individual infringers, which largely resulted in vilifying the RIAA and the public viewing it as attacking its customers. That’s not to say harsher penalties can’t work: according to CNN, part of the Japanese legislature’s impetus was its hope to reproduce South Korea’s similar efforts that have proven successful.  On the other side of the world, peer-to-peer music piracy in France declined by 26% in 2011.

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