The Digital Media Project

 

Source

Philip Merrill

Title

TRU #50 of translation

No.

040909merrill05

 

Name:

Philip Merrill

Affiliation/additional information:

Active Contributor, Pasadena, California

Date submitted:

2004/09/09

 

#

Criteria

Description

1.

Name of TRU

Right of translation

2.

Summary description of TRU

translation rights are initially retained by the author but over time permit various developing nation uses, fair uses, and potential compulsory licensing and/or equitable remuneration so that published works can be consumed in other languages besides those that have been duly authorised; translators acquire a copyright in their translations but not to the prejudice of prior copyrights in the material that was translated

3.

Use records of TRU

Like TRU parody, this presents issues of TRU adaptation, in this case because it is possible for translations to be more or less precise. A more precise translation is likely to be lengthier than the original, with more words required to convey nuances of meaning contained in the original, which is usually pithier. The famous "a translator is a traitor" quip suggests that translators must often aim for economy of expression, taking certain liberties with the original to do so. It should be up to the original author what sort of translation to authorise, but it is likely the author does not speak or read the foreign language in question.

Unauthorised translations put steady pressure on an author to assert control or else lose control. For example, an online group translated one of the Harry Potter volumes into German -- each group member taking on only a few pages -- because of their impatience waiting for the authorised translation to be published. One example recognised by treaty is TRU of developing nations exception , which requires delays and notification of the author, but then allows people to perform their own attempted faithful translations. This clearly enables speakers of the world's more obscure languages to benefit.

4.

Nature of TRU

In U.S. law, translations are part of the definition of "derivative work" and listed first of many examples of such works (17 USC 101). The right to prepare derivative works "based upon the copyrighted work" is given to the copyright owner under 17 USC 106(2) (online at http://www4.law.cornell.edu/uscode/17/ch1.html).

Under Berne, TRU translation diverges from adaptation and even further away from performance in the assumption the translation will be of a "literary and artistic work" and will itself be one. Translation can fit the main definition in Article 2(I) as a "production in the literary, scientific and artistic domain" or as a book or dramatic work, however translations are specifically provided for in Articles 2(3) and 8.

  • Article 8 provides a right to restrict others from making translations.
  • Article 2(3) protects the author of a translation "without prejudice to the copyright of the original work."
As with TRU adaptation, this creates some doubt as to the treatment of a translation that has been completed without authorisation by the original author. This doubt is best resolved if the author subsequently consents or else the translation is accomplished (with notice) under the developing nations exception.

At http://www.wipo.int/documents/en/meetings/2003/sccr/pdf/sccr_9_7.pdf pp. 37-39, Prof. Sam Ricketson points out that TRU reproduction has many exceptions for which no parallels exist in TRU translation, and that it has been accepted that this is somewhat illogical. On the other hand, TRU of developing nations exception does provide for exceptions overtly applicable to translations. As a result, Berne members live under under a more restrictive scheme allowing authors to ignore foreign languages they don't care for. This is a motive expected to be balanced by greed, since Middle-men publishers will push for authorised translations whenever it is to their economic benefit. In theory, it is only developing countries that need the self-help because economics will take care of providing translations in the wealthier Berne countries.

In International Copyright, Paul Goldstein says, "the translation right was the first right to be expressly included as a minimum Berne requirement" (at sec. 5.4.I.I.A.ii) and refers to an earlier work by Prof. Ricketson that said translation "was probably the most important factor which drew states into international copyright agreements in the late nineteenth century." (footnote 570)

5.

Benefits of TRU

Benefits authors by helping their works reach more people, benefits Middle-Men by allowing publishers in other countries to have access to books written in foreign languages, and benefits End-users by providing a wider selection of content. Potentially harms the original author's TRUs of integrity and reputation, especially if the translation is a stinker.

6.

Possible digital support

It is noteworthy that the exercise of the developing nations exception for translation requires time delays and circulation restrictions. This could apply to our metaphor of the author's stream of economic exploitation, staying at the shallow outskirts of the stream based on time and audience (e.g., media exploitation chronology of theater-DVD/cable-TV).

Interlinear publishing could be automated for displaying originals alongside translations (including multiple translations). This would be very desirable for scholarship and also for popular enjoyment.

7. Requirements none at this time

8.

References