Опдп. Cрсп № 4. Copyright in translation

Student’s name ______________________

Deadline: 02.03.2012

Do assignments 1, 2, 3.

Assignment 1. Read the information offered to you from one site. Write out or highlight any unknown words from this text (at least 10 words and word combinations) and find the translation. Be ready to report on this issue in class. You may find some additional information in the books or on the Internet.

Copyright

What is copyright?

Copyright is an entirely legal concept. Under the Anglo-Saxon system, it is a property right, protected by statute, which subsists in literary works. As an Anglo-Saxon concept it was originally developed by English judges and was then taken up in North America by the American courts. It generally equates with the Continental European concept of copyright.

The term ‘copyright’ is self-explanatory. It is the right to copy. This means that if you own the copyright in a literary creation you can prevent other people copying your work, issuing copies to the public, lending, renting out your work, and performing it in public (but not in private). You can also stop them from broadcasting it, making an adaptation or a translation of it.

This last point is important because a translator can only translate or adapt a work with the consent of the original copyright owner. If this consent is granted and the translation is then produced, the work of the translator – who essentially is an author, too – is itself protected by copyright.

What does copyright protect?

Copyright protects a range of creative material, including literary and dramatic works. A literary work does not need to be “literary” or “dramatic” in the artistic sense before it is protected. Essentially, any work made up of words may be protected as a literary work, and a trade manual will be protected to the same extent as a novel, poem or short story. Similarly, scripts for advertisements may be protected as much as a stage play or script for a feature film. There is no system of registration for copyright protection. A literary or dramatic work is protected as soon as it is written down or recorded in some way (whether by hand or typed or recorded on tape).

Copyright in translations

A translation is generally protected by copyright as a literary work. This is separate from copyright in the underlying work, which is also protected. As a result, it is possible that copyright in the translation and copyright in the underlying work are owned by different people.

What are the basic moral rights?

You are entitled to be identified as the author of your work and thus as the author of your translation, unless you sign a waiver to someone in an Anglo-Saxon jurisdiction. It is unlikely that you can alienate this right in France. It may be that under French and/or other laws the principle would be accepted for certain kinds of translations should this kind of work not require identification.

But the basic principle is that you are entitled to be credited with your own work.

You are also entitled to prevent other people being credited with your own work, so there is a negative right. If someone tries to put his or her name to your translation, you can try to prevent him or her from doing so. This means there is a positive right to be identified and a positive right to stop other people claiming that they translated your creation, leaving the impression that your translation was done by the original author rather than by a professionally qualified translator like you. Moral rights are not to be ignored and continue to exist (regardless of whether or not you own the copyright).

Consequently, as an author, you have the right to equitable remuneration if your work is used.

How and where is copyright protected?

Copyright is protected everywhere throughout the world. It is protected by virtue of local laws. If you make a translation into English of a French work in France, your translation will be protected in France under French law. If you do the same in England, it will be protected under English law; in America under American law. Therefore there is no unified legal system governing the protection of your works around the world. You have to examine the law of each separate jurisdiction to find out what rights you have as an author/translator.

The Berne Convention, TRIPs and WIPO

The Berne Convention for the Protection of Literary and Artistic Works was finalised in 1886 as the first instrument of international copyright law. The approach was to establish an international baseline standard, to which all member countries were supposed to adhere in their domestic legislation. The means by which individual countries chose to implement the standards under the Convention were left to their authorities. Like other instruments of public international law, the Berne Convention did not have specific measures of enforcement. Instead, the system was based largely on the aspiration towards international consensus in relation to copyright. These conventions form what is called reciprocal arrangements.

International copyright standards have largely been developed through three distinct processes: the TRIPs/World Trade Organisation system, the World Intellectual Property Organisation (WIPO), and the Copyright Harmonisation Directives of the European Union, whose international influence far exceeds their regional effects. In all three processes, attempts have been made to include moral rights, but none of them has been able even to generate a proposal for an internationally viable standard. And there are various and holy alliances between patent owners, trademark owners and copyright owners who are keen to defend their interests.

The TRIPs Agreements resulted in a movement towards the extension of copyright on a uniformed basis throughout the world.

As far as the length of copyright is concerned, there are now longer and longer periods of copyright and companies such as Disney have been very instrumental in defending the extension of copyright because they wanted to protect image rights in their cartoons.

Key points

• Generally, you need permission from the copyright owner in order to make a translation of his or her work.

• Generally, copyright subsists in a translation.

• Any use of a translation will, in copyright terms, also involve the “underlying” original work. Therefore, a translator may need permission from the owner of copyright in the original work, to use his or her translation in certain ways.

When is permission needed?

Generally, permission is needed to create a translation of a literary or dramatic work. Permission will also be needed from both the copyright owner in the translation and the copyright owner in the underlying work to reproduce the translation.

Getting permission to translate a work

A translator will need to obtain permission from the relevant copyright owner in order to make a translation of a protected work. When negotiating this right, a translator should consider what else he or she will subsequently be doing with the translation. For example, is it to be published and distributed, or broadcast or put onto a website, and so on. These subsequent uses of the translation will need to be covered by the permission from the owner of copyright in the underlying work, and any such permissions should be negotiated early (for example, either by way of a full agreement, or by means of an option on these rights). The terms and conditions upon which any permission is granted will in every case be a matter of negotiation between the translator and the copyright owner.

A written agreement giving permission to use a copyright work should ideally include a provision under which the person granting the permission warrants that they are the owner or the exclusive licensee of the copyright in the underlying work and that they are authorised to grant permission to translate the work. As an extra precaution, the provision should also state that they will indemnify (compensate) the translator for any loss, damage or injury suffered as a result of any breach of that warranty.

Getting permission to reproduce a translation

Permission will be needed from both the owner of copyright in the translation and the owner of copyright in the underlying work, to reproduce the translation.

Contacting the copyright owner

The first point of contact in obtaining permission to make a translation is usually the publisher. The Australian Publishers Association (APA) publishes a directory of Australian publishers, and there are similar directories for overseas publishers. If the publisher does not control the translation rights, an approach will need to be made to the author or the author’s agent.

If the author has died, the rights may still be controlled by the publisher, or may be controlled by the author’s heirs. It may be necessary to refer to the author’s will or to relevant intestacy laws. In Australia, copies of wills may be found in the Probate Division of the Supreme Court in each capital city.

Types of permission

There are several ways the copyright owner may give permission (a licence) to use a work. Licences can be either exclusive or non-exclusive. Where an exclusive licence is granted, only the licensee has the right to use the work in the ways specified in the licence. This means that everybody else, including the copyright owner, is prevented from using the work in those ways. To be fully effective, an exclusive licence must be in writing and signed by the copyright owner.

Where a non-exclusive licence is granted, the copyright owner retains the right to use the work and may continue to grant similar licences to others who wish to use the work in the same way. When granting any licence, the copyright owner may choose to limit the permission granted by specifying the types of use that are included. Licences may limit permission to use the work:

• for a specific period of time;

• within a particular geographical area (e.g. Australia); or

• in a certain language (e.g. English language rights)

• in any other way that is practical in the circumstances.

If a translator intends to publish a translation of a major work, he or she may want to negotiate for the “exclusive right” to translate that work into the relevant language, in order to prevent the production of rival translations in the geographical area to which the licence relates.

Both the copyright owner of the underlying work and the translator should give careful consideration to what sort of licence is most appropriate in a particular situation, and should generally seek legal advice. Australian Copyright Council Information Sheet G067v04 Translations & Copyright

Other Translations

A more common situation faced by libraries is when the library engages the services of a translator or translation service to translate a scientific or technical article for use within that company. This activity does not usually generate copyright concerns, but it certainly could. An article is translated and a single copy is delivered to the translator's customer (a company). Traditionally, that copy is passed around to the researchers who need to see it. The translator is paid for his services, but in no way claims copyright in the translations he produces; the copyright is in the underlying article. What happens when a company decides that it wants to digitize these works and make them available over the Internet? Over the corporate intranet?

The answer is clear for distribution over the Internet: the company has caused an unauthorized derivative work to be created and has infringed the copyright in the original article by distributing the translation. Posting something on the Internet is the equivalent of publishing the work. Absent permission from the owner of the copyright in the article, posting is infringement.

The answer is less clear for internal use of the translation. Few copyright holders have complained when a translation service produces a translation for a single corporate client. Whether it has been considered fair use or not by copyright holders is not known. Even when applying the four fair use factors, it is not clear whether this type of translation is a fair use.

Purpose and character of the use is for research, scholarship, etc., but the Texaco decision held that companies in the for-profit sector are less likely than nonprofit users to be able to claim fair use under this factor.

Nature of the copyrighted work might favor such a translation since the underlying work is a scientific or technical article, factual in nature.

The amount and substantiality factor does not favor a finding of fair use in this situation since the entire work is reproduced by the translation.

Market effect is more difficult to calculate. The article is not available in English; thus, in order to use the information in the article, it must be translated. The company has paid for one copy of the article in its original language, either through a subscription or because it has acquired the copy from an authorized document delivery service. Further, only a single copy of the translation is produced to permit its use within the company.

Most translations of scientific and technical literature are works for hire in a sense, but not in the copyright sense. Typically, in copyright law, a work for hire relates to the underlying copyrighted work. Here, the company hires a translator, but the company has no ownership rights in the copyright of the underlying article. Thus, it is not a work for hire under the copyright law.

Corporate and government agency libraries have routinely retained copies of these translations produced for their staff. Recently, these libraries have considered scanning the translations and putting them on an intranet so that they are accessible by all of the employees of that organization. Clearly, this amounts to mass reproduction and distribution of the translation; further, the translation is an unauthorized derivative work. While having the article translated and one copy maintained in the library may be fair use, wide distribution via an intranet is unlikely to be fair use. It is possible that the publisher would grant permission for posting the translation on the intranet, but permission should be requested before undertaking such distribution.

So some translations may qualify for copyright protection by possessing sufficient originality, but generally they are works for hire. Whether an unauthorized translation of an article produced for a particular company is a fair use is not clear. Distribution of these unauthorized translations, whether internally on an intranet or on the Internet, likely is infringement. Moreover, in this situation, the company is the infringer, not the translator who produced a single copy for use within the company.