Translations: When Copyright Curtails Creative Licence

Posted December 30, 2015 in Rodger Outten IP News

The quote, “Poetry is what get lost in translation”, as originally attributed to Robert Frost, the American Poet, has profound application in summarizing the challenges that even the most astute translators face when accurately translating an author’s linguistic spirit into a foreign language; and it highlights the practical realities involving works protected by copyright.  The general legal premise regarding copyright is that the protection is a limited mechanism because copyright protects the expression of the idea and not the idea itself.  

Effective translation of literary works pose a unique challenge to translators, storytellers and artists. The art of literary translation involves superior literary skills that transcend geographical boundaries and time, in order to effectively recreate and essentially encompass, the feelings initially created by the original author and; these objectives often must be achieved without the benefit of identical vernacular in a foreign language. The words utilized in an original, literary works are often painstakingly constructed by authors and are creatively designed, to convey specific emotives and invoke connections of shared identity, culture, history and experiences.  Translators are therefore, challenged with the additional task of rendering subtle, cultural nuances and aesthetic connotations hidden in literary works which often present an ultimatum for translators. Therefore, translators must strike the correct balance between being faithful to the author’s style and rendering correctness in translation. 

Further, there is the practical reality that prose can be translated into another tongue however, poetry cannot.  Translators are also often required to render meanings where phonetic, lexical and syntactic differences cannot always be accurately translated.  Translators face copyright issues which are incidental to the translation assignment itself and are evolutionary in nature.  They are often confronted with the opposing objectives to make literary works accurately accessible to persons of another language without infringing the author’s copyright in the translated work.   

An original author’s right to translate their literary work, is enshrined in Article 8 of the Berne Convention for the Protection of Literary and Artistic Works 1971, which states that, ”Authors of literary and artistic works protected by this Convention shall enjoy the exclusive right of making and authorizing translation of their works throughout the term of the protection of their rights in the original works.” One of the obvious objectives behind such a protection is to prohibit an overly enthusiastic translator who infringes the original work and endeavors to distribute the translated work into another territory and thereby significantly profit from the works of others.

A brief consideration of the statutory protections under Bahamian copyright law are in order. Under the 1998 Copyright Act, Chapter 323 of the Statue Laws of the Commonwealth of the Bahamas (hereafter “the Act”), the word ‘translation’ itself is not expressly defined however, translations of literary works fall under the general category of ‘derivative works’.  Derivative works are defined as works, “based on one or more pre-existing works such as a translation, musical arrangements, dramatizations, fictionalization, motion pictures, art reproductions, sound recordings, abridgement or any condensation which a work is recast, transformed or adapted; and a work consisting of editorial revision, annotation, elaboration or other modification, which as a whole represent an original work of authorship”.

Section 9(1) and (2) of the Act, grants copyright owners certain exclusive moral rights to reproduce, distribute, prepare derivative works and perform, publicly display and broadcast protected works; and these rights protect the author’s creative right to make an adaptation to the work itself.   Section 11 (2) of the Act grants authors of protected works the right to be identified as the author of the literary, dramatic, work whenever it is published, publicly performed, copied and distributed to the public.  Section 13 (1) empowers copyright owners with related rights not to have a literary, dramatic or artistic work falsely attributed.  These protections without a doubt, include the right to translate the work, to distribute it, to make it accessible to persons of different societal backgrounds and to those who speak another language. 

As a consequence and subject to certain exceptions, without an author’s express permission to translate and ultimately vary a literary work, when a translator engages in distributing to the public, unauthorized translations of protected works; he will infringe the copyright of an original author.   Section 57 of the Act, identified four general exceptions to copyright infringement namely, research and private study and criticism review, determining fair dealing and the incidental inclusion of a protected work.  The permitted exceptions to copyright infringement primarily fall into the two main arenas of education, research and private study and criticism review and news reporting so long as “sufficient acknowledgment” is made. (Section 57 of the Act describes “sufficient acknowledgment” as acknowledgment identifying the work in question by its title and or author).  Exceptions to the sufficient acknowledgment criterion is established where, a work is published anonymously or the author agreed that no acknowledgement of him should be made or in the in event of an unknown author where it is not possible to ascertain the identity of the author after reasonable inquiry. 

Education, research and private study and criticism review are general exceptions to copyright infringement and are mechanisms in which the translation of an author’s work may be effectively and fairly used. Moreover, the copyright of a literary work (or an artistic) work is not infringed by its being reproduced in the course of instruction or preparation for instruction provided that the reproduction is done by a person giving or receiving instruction and is not by means of a reprographic process. However, it is noteworthy that these exceptions, stop just short of authorizing the distribution and or sale of the translated literary work.

Under the provisions of the Bahamian copyright law, the right to translate an original work remains with the author; who may seek to increase the exposure of his literary work beyond linguistic boundaries. It is only natural then for the shrewd translator to establish the degree to which his translation of an original work, qualifies as a new original work; and where it does, question whether or not that work can in fact be protected by copyright.   In the Bahamas, the Bahamian legislation appears to protect only the newly created parts of a derivative works, if an only if, the translator or creator of the derivative work had obtained authorization for the original author to modify or adapt the pre-existing work. Under section 19 (1) of the Act, where a person is commissioned to perform a work for hire, the employer or commissioner of the work to be performed, will own the copyright in the derivative work unless the parties have expressly agreed to writing to contrary and such agreement is to be signed by both parties.

That said, should an ambitious translator, who has obtained the requisite authorization or licence to translate an original work, seek to add, embellish or ‘personify’ parts of the original text, his contribution would not be deprived of an associated copyright in the translation that work. Section 19(4) of the Act permits a distinction of the copyright in the contribution to a collective work as opposed to the copyright in the copyright in the collective work on the whole; which inevitably would belong to the original author.    This distinction, although limited only to the newly created parts of the original work, would include any of the translator’s unique influence in the pre-existing work.  Given the considerable creative, skill and labor involved to render the translation, it is only fair that the newly contributed work be capable of copyright registration.

Having briefly reviewed some of the key protections under Bahamian copyright legislation, there are practical steps for translators to consider and these include:

  1. Determining whether the translation assignment is a “work for hire” arrangement before copyright dispute issues arise (i.e. are you being retained to try to convey the author’s original thoughts, objectives and message in the text you are translating?)
  2. If it is, then your job may become much simpler, as a hire translator you are required to preserve the integrity of the text by utilizing your knowledge of the foreign language to convey as best you can, the work of the original literary author.
  3. If not, then this becomes a more subjective task because you are able to translate the author’s original thoughts but by means of your original thoughts and assuming you have obtained the author’s licence to translate the work; you are in a position to utilize creative licence when translating the original work.
  4. Consider the whether or not the work is in public domain. Where a work exists in public domain, then the translation of the work automatically retain copyright as an original work. Remember the copyright for a work of literature expires 70 years after the death of the author’s death. 

As mentioned earlier, the work of a translator is an artful, labor intensive skill. The considerations you make prior to starting any translation will ultimately determine whether you will be fighting for attribution and recognition later or whether you will be adequately compensation for the work to be performed.

Attorney & Barrister-at-Law Rodger Outten counsels and represents clients on a spectrum of intellectual property matters and provides sound advice regarding copyright, trade mark, patent and industrial designs protections and strategies. 

Rodger Outten can be contacted:  

OuttenIP,Counsel & Attorneys 201 West Bay Street, Nassau, Bahamas.