"Fan subbing" a copyright crime?

Fans who engage in subtitling or translating motion pictures have been prosecuted on several occasions in EU countries. A recent case in Sweden resulted in yet another discussion: are the non-commercially motivated fan actions copyright violations?

As a result of an investigation called for by the Swedish Rights Alliance, a private copyright enforcement body, on July 9th, 2013 servers of the Swedish fan subtitling site undertexter.se were taken offline during a raid by the Swedish Police. The Pirate Party in Sweden reacted strongly, denouncing the action and calling it a sign of a sector in trouble. Similar cases have already been investigated in other EU countries like Norway and Poland.

Fan sites offer translations before content is licensed locally

"Fan subbing" sites provide users with subtitles for a piece of film in their own language, even before official synchronization or subtitles in their own language are available, and potentially before content is officially licensed for their region. Often it is done by fans collectively and non-commercially, similar to fan translation projects – remember the "Harry Potter" translations by students.

With the Harry Potter-mania in full swing a German fan community received an injunction (2003) and soon after closed the translated content, giving access only to members of their "fan translation club." Similarly, although a few years later, in 2007 a French 16year old Harry Potter translator was taken in by the police.

Commercial character in dispute

Undertexter.se offered the subtitles to the public free of cost – a violation of Swedish copyright, according to the National co-ordinator of the intellectual property crime division at the Swedish Police Service. The officer told BBC, "making transcripts" of protected works without the consent of the rightsholder was a copyright infringement, as was making such transcripts publicly available.

While the crowd-sourcing community may hardly be seen as acting for profit, the Rights Alliance alleges the platform itself to be of commercial character due to advertisements on the site and therefore pushed for the investigation. Obviously the anti-piracy group wants to see Undertexter.se prosecuted as a "commercial nature"-effort.

No criminal intent

A similar case has been dismissed by Polish prosecutors in May of 2013 due to difficulties to prove a "criminal intent," according to reports sent to Pirate Party Founder Rick Falkvinge. The Napisy forum (napisy.org), similarly to undertexter.se, offered subtitles to movies for free. The case was pending since 2007 when police raided apartments of persons allegedly engaged in providing the Polish subtitles in six different cities .  

Krzysztof Czerepak, webmaster of napisy.org, rejected claims about the commercial nature of the site’s content. Instead, he underlined that in fact fan subtitles were often used by official translators for their work (see story on Unwatched.org). After six years, in May of 2013 the public prosecutor finally dismissed the case with no charges pressed.

In 2012 a Norwegian student was fined 2.000 Euro for offering subtitles on his site norsub.com. The court acknowledged the non-commercial nature of the site and the difference of subtitling and distribution of pirated content.

Bad move against fans?

Pirate party members in Sweden including Falkvinge argue "the copyright industry has decided to do a full-out raid against something that is entirely fan-made." It was a clear escalation and just another sign for the need to reform.

Undertexter.se challenged the move, saying it did not consider the subtitling to be illegal. The site according to TorrentFreak newszine is currently reaching out to the public for donations to bring its content back online.

There have also been more positive reactions to fan activities in other areas, for example from Japanese Manga publishers. Confronted with difficulties to reach out to foreign markets they had tended, at least at times, to embrace fan translations or subtitling. A Japanese research paper has argued that copyright law had to be reformed to address “mini-creators” (PDF) in digital cultures.