Translation presents a complex set of issues to the copyright regime. The legal structures in this regime are installed to keep original work intact, while translation is by its nature a transition of a work to another language and culture. In this article we give a brief overview of copyright as it relates to audiovisual translations. As it is impossible to specify all country-specific legal requirements within one article, we only give general principles that are based on international agreements and are applicable in most legislations. If you need advice on how national legislation applies in a particular case, please get advice from a lawyer.
What are audiovisual works?
The copyright law distinguishes audiovisual works as a more general term and motion pictures as one category of audiovisual works. Audiovisual works are generally created through the participation of a large group of people (co-authors), which can lead to problems with copyright. For this reason, most countries assume that the producer of an audiovisual work acquires exclusive rights to use such work. At the same time, co-authors are granted specific rights to their respective parts.
Who owns copyright to a translation?
Protection of copyright is not the same all over the world. Most European countries follow the principle of Roman law, which is that only a natural person(s) can create a work. In the USA and other countries that borrowed principles of copyright from the UK, in the case of a work made for hire, the employer or other person for whom the work was prepared is initially considered the author and owns all of the rights comprised in the copyright.
Modern audiovisual translation is nearly always a teamwork. For the purpose of copyright, it is necessary to distinguish joint and collective work. A joint work is a work prepared by two or more authors (translator(s), reviewers, proofreaders) with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. A “collective work” is a work in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole (project split between multiple translators). The authors of a joint work are coowners of copyright in the work, while copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole.
Is any translation subject to a copyright?
A translation is generally protected by copyright as any other original creative work of authorship fixed in any tangible medium of expression (written down or audio-recorded). Translation does not need to have any artistic quality to be protected by copyright, but the usual tests for originality and creativity apply. The threshold for attracting copyright is not defined by international copyright law but is up to each jurisdiction to determine. The test for the threshold of originality in the European Union is whether the work is the author's own intellectual creation, while under English law the work must satisfy two conditions: it must originate from the author (not have been copied) and it must result from sufficient skill, labour and judgment.
The answer depends much on the theoretical approach to translation process: whether it is considered as a purely linguistic activity transcoding one language into another, or as an interpretive act that inevitably varies source-text form and has different effect, because of cultural differences between source and receiving audience.
Copyright protection of translation is separate from copyright in the original work. As a result, it is possible that copyright in the translation and copyright in the original work are owned by different people. Translation may also be protected by copyright even if the original work is not protected, i.e. copyright protections no longer last or the original work is exempt from copyright protection (non-official translations of court decisions, legislative or administrative texts).
Is it necessary to register translation to get protection?
Formalities like publication, fixation or registration are not required for the acquisition of copyright. The principle of protection without formalities is valid for all kinds of works, including translation. Copyright arises with the creation of the work. Some legislations require a copy of a work to be deposited with the national (parliament or public) libraries, but this is a purely administrative measure that aims to preserve cultural heritage and is not required to obtain copyright. Before 1989, the United States denied protection to certain materials published without the copyright notice. However, copyright protection in the Unites States is now free and automatic. Depositing a copy of a work can serve as a proof of authorship and a particular date of creation. Signed purchase order with the client can also be used as such proof.
How can copyright for translation be transferred?
Many countries, including most European countries allow possibility to transfer only economic rights (or parts of them) and do not allow the transfer of moral rights. Economic rights allow right owners to derive financial reward from the use of their works by others. Moral rights allow authors and creators to take certain actions to preserve and protect their link with their work. Examples of moral rights are the right to claim authorship of a work, to object any distortion or modification of a work.
Translators have both moral and economic rights towards their work and do not need to get approval from the owner of the copyright in the original work to transfer their copyright to someone else. Although since translation is a derivative work in order to publish it, permission must be obtained from both the owner of the copyright in the original work and the owner of copyright in the translation.
Is it necessary to get permission to translate a work?
Translating or adapting a work requires permission from the right owner. The right to allow translation is an example of economic rights, so in many cases it is not the author, but the publisher who is in position to grant translation rights. For the same reason copyright law only prohibits publication/redistribution of unauthorized translation, not the act of translation itself.
The right to allow translation belongs to the right owner and is not granted to the translator. This means that if a work has already been translated by someone else, it is still possible to claim permissions to perform another new translation of the same work from the person who owns original copyright. There is no need to obtain the same permission from the author(s) of the previous translation(s) in this case.
Poor quality translation can in some cases be considered as unauthorized modification of the work that violates an author’s moral rights and harms authors’ reputation.
If the period of copyright duration is over and the work entered the public domain, anyone is free to translate it without any specific approval.
Can translators claim copyright notice with their names?
Where the translator is the owner of copyright in the translation, he or she is entitled to place a copyright notice with their name on all copies of the translation. The copyright notice is not required for the work to be protected in most countries, but it helps to identify and contact copyright holders.
In many countries the right to claim authorship of a work is part of moral rights and cannot be transferred.
Copyright law and translation memories
Copyright law does not allow unauthorized use of translation memories that belong to one customer on projects from other customers. The use of translation memories may be permitted under the fair use limitations on exclusive rights as use for research purposes, but this interpretation is ambiguous and thus many translation companies prefer to stay on the safe side and prohibit such use of translation memories.
Are modifications made by reviewer or proofreader require approval by the translator?
Authors of translation just like of any other work enjoy the exclusive right of authorizing adaptations, arrangements and other alterations of their works. This means that any translation reviews, revisions shall be seen and approved by the translator or the translation copyright owner.
International agreements and choice of law in copyright
The main international treaties dealing with copyright are:
- Berne Convention for the Protection of Literary and Artistic Works (members are listed on www.wipo.int/copyright);
- Universal Copyright Convention or UCC (members are listed on http://portal.unesco.org/en/ev.php-URL_ID=15381&URL_DO=DO_TOPIC&URL_SECTION=201.html);
- Agreement on Trade Related Aspects of Intellectual Property Rights, or TRIPS (members of WTO are listed on www.wto.org);
- International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, known as the Rome Convention (members are listed on www.wipo.int/copyright);
- Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms, known as the Geneva Convention or Phonograms Convention (members are listed on www.wipo.int/copyright);
- Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired or Otherwise Print Disabled (members are listed on www.wipo.int/treaties/en/ip/marrakesh/);
- The WIPO Copyright Treaty; and the WIPO Performances and Phonograms Treaty that supplement the provisions of both the Berne and the Rome Conventions by providing expanded rights for copyright owners, performers and phonogram producers (members are listed on www.wipo.int/copyright).
In addition, some countries may have bilateral or regional treaties covering copyright.
Minimum standards of copyright protection are secured by international treaties in all member countries, however, the way in which legislation is implemented does not need to be uniform. The modern translation and localization process involves participants from different countries and thus determining the applicable jurisdiction may not be that easy.