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literary translation copyright

 
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Anna
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PostPosted: Sun May 01, 2016 1:33 pm    Post subject: literary translation copyright Reply with quote

Hi all,

There's a book and its copyright is owned by us. We found some freelance translators to translate this book into another language. The situation is that one of the translators signed the contract with us, but refused to claim the release of copyright to his employer (our company). Due to the poor quality of his translation, we have another translator to do the proofreading. There only up to 30% of the content remain unchanged in the final file. Is it safe to publish the translated book under this circumstance?

Hope you can help me! Thanks in advance.
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AndyJ
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PostPosted: Sun May 01, 2016 3:47 pm    Post subject: Reply with quote

Hi Anna,

If you commissioned the translator to do the translation for the specific purpose that you would be publishing the work, I don't think there is much doubt that you would have an implied licence to publish the work he supplied, unless the contract/agreement under which he was engaged gave him an editorial right of refusal (which it doesn't sound as if it did), and assuming he was fully paid for the work in line with the agreement. Even if he didn't sign the contract/agreement, the fact that he completed the task (albeit not to your satisfaction) may amount to an implied acceptance by him of the terms of the contract. However if the matter of copyright ownership did not form part of the original commissioning agreement, then you face much more difficulty in resolving that aspect.

Despite any implied licence, he will be the first owner of the copyright in his translation and will remain so if he has not transferred it to you in writing. Even though your other translator has had to revise/redo two thirds of the original translation, the remaining third may amount to a substantial part, and thus the resulting 'new' work may fall into the category of being a derivative work. I think you would need some expert advice on the literary merits of the part which it has not been necessary to change, and whether it constitutes a substantial part of the overall work he submitted.
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Lumberjack
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PostPosted: Sun May 01, 2016 4:44 pm    Post subject: Reply with quote

To me (speaking with a mind "unclouded by fact") it seems to me that he is claiming copyright for a copryighted work that he, in turn, copied from you (although in another language)!
I always understood that copying something did not generate a "new" copyright. Anyway, if the translation is a load of rubbish, it is not much use to him anyway! I would just get someone else to translate it properly, making it clear beforehand that you are not handing over the copyright to them!
As for the first translation if, as I said, it is so poor you do not wish to use it, it doesn't matter anyway!
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AndyJ
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PostPosted: Sun May 01, 2016 7:25 pm    Post subject: Reply with quote

Lumberjack wrote:
To me (speaking with a mind "unclouded by fact") it seems to me that he is claiming copyright for a copryighted work that he, in turn, copied from you (although in another language)!
A translation of a work has to be authorised by the copyright holder of the original work, but once that has been done, the translator will own the copyright in his/her translation which is known as an adaptation, subject to any contract to the contrary.
Quote:
21 Infringement by making adaptation or act done in relation to adaptation.

(1) The making of an adaptation of the work is an act restricted by the copyright in a literary, dramatic or musical work.

For this purpose an adaptation is made when it is recorded, in writing or otherwise.

(2) The doing of any of the acts specified in sections 17 to 20, or subsection (1) above, in relation to an adaptation of the work is also an act restricted by the copyright in a literary, dramatic or musical work.

For this purpose it is immaterial whether the adaptation has been recorded, in writing or otherwise, at the time the act is done.

(3) In this Part “adaptation”-

    (a) in relation to a literary work, other than a computer program or a database, or in relation to a dramatic work, means—

      (i) a translation of the work;

      (ii) a version of a dramatic work in which it is converted into a non-dramatic work or, as the case may be, of a non-dramatic work in which it is converted into a dramatic work;

      (iii) a version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine or similar periodical;

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Lumberjack
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PostPosted: Sun May 01, 2016 8:35 pm    Post subject: Reply with quote

Doesn't surprise me at all! I am now firmly convinced that the laws and rules regarding copyright are so lengthy and complicated that mere mortals such as myself don't have a chance of understanding them! Everything I hear on the subject, I can find another opionion that is exactly opposed to it. The only test of it seems to be if one gets hauled before the courts. And in my case, when dealing with material that is usually 100 or more years old, I feel I am on pretty safe ground. I am always seeing large organisations claiming they own copyright of images that are over 100 years old, but on the last occasion when I called the bluff of one of them, they backed down without a murmur!
I would have thought that those who took Google to court over book scanning would have had a watertight case, but they still lost!
To many "flexirules" for me, I am afraid. Shocked
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Anna
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PostPosted: Mon May 02, 2016 3:08 am    Post subject: Reply with quote

[quote="AndyJ"]Hi Anna,

If you commissioned the translator to do the translation for the specific purpose that you would be publishing the work, I don't think there is much doubt that you would have an implied licence to publish the work he supplied, unless the contract/agreement under which he was engaged gave him an editorial right of refusal (which it doesn't sound as if it did), and assuming he was fully paid for the work in line with the agreement. Even if he didn't sign the contract/agreement, the fact that he completed the task (albeit not to your satisfaction) may amount to an implied acceptance by him of the terms of the contract. However if the matter of copyright ownership did not form part of the original commissioning agreement, then you face much more difficulty in resolving that aspect.

Despite any implied licence, he will be the first owner of the copyright in his translation and will remain so if he has not transferred it to you in writing. Even though your other translator has had to revise/redo two thirds of the original translation, the remaining third may amount to a substantial part, and thus the resulting 'new' work may fall into the category of being a derivative work. I think you would need some expert advice on the literary merits of the part which it has not been necessary to change, and whether it constitutes a substantial part of the overall work he submitted.[/quote]

Hi Andy,

Thank you for the reply.

Before we reach to an expert, we want to find more information about infringement in literary works. Do you know the method of judging the merits in translation? Nearly every sentence has been modified, and the words and structure of the remaining part are very common to our other translators. Smile
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AndyJ
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PostPosted: Mon May 02, 2016 8:12 am    Post subject: Reply with quote

Hi Anna,

The test for originality in a literary work is whether the work expresses the intellectual creativity of the author, Thus, something banal like a shopping list probably wouldn't be original enough to qualify unless the author had used great care and skill in composing it, in a way which reflected their personality.

In copyright we speak about the expression of the 'idea' as being the thing which is protected, and not the idea alone. With a translation, the 'idea' already exists, and so it is the manner in which the translator expresses that idea in his own language which holds the scope for original expression. Since translation offers less scope for literary flourishes, because the translator must stick fairly closely to the sense and tone of the original language, a poor translation which literally just substitutes 'chat' for 'cat' when translating from English to French, much in the way that Google Translate does, may lack overall originality. When that translation then has to be improved by another person, I think this tends to reinforce the view that the first translation lacked sufficient evidence of the intellectual creativity of the translator, unless of course his incompetence is seen as representing his personality.

I can't think of a recent copyright case involving translation which fits the circumstances of your question, but for an example of how the courts can approach the problem of determining originality where literary works are concerned, you could take a look at the case of Baigent v Random House [2006] EWHC 719 (Ch), (the so-called Da Vinci Code case). Unfortunately it's a very long judgment so you may need to skim over some bits to get to the main points, which I suggest are found in Section G. Also in the context of that case, the court was using the slightly older approach of "originality of skill and labour in expression of the work", rather than the later approach adopted by the Court of Justice of the European Union, namely that the "author’s own intellectual creation is evidenced from the manner in which the subject is presented and the linguistic expression".
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Anna
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PostPosted: Tue May 03, 2016 1:08 am    Post subject: Reply with quote

Hi Andy,

Thank you again for the informative reply Very Happy . It's really helpful. We know what to do now Smile .
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