INTELLECTUAL PROPERTY RIGHTS IN THE TRANSLATION INDUSTRY – A TRANSLATOR AS A CREATOR AND AUTHOR
[translated by Michał Berbeka]
Pursuant to Article 1(1) of the Act of 4 February 1994 on Copyright and Related Rights: ‘The subject of copyright is any manifestation of creative activity of an individual character, established in any form, regardless of its value, purpose and form of expression (a work)’. On the other hand, pursuant to Article 2(1) of that Act, ‘a work derived from another author’s work, especially a translation […] is copyrighted without prejudice to the right in the original work’.
In light of the above provisions, considering translation as an expression of creative activity should not cause any dispute. And it does not, but only among translators and IP lawyers. How differently this issue is perceived by a large part of the recipients of these works – i.e. viewers and readers – was shown by the case of the claims raised by David French against Netflix. The dispute concerned using a translation of The Witcher Saga in the production of the series without even mentioning the translator in the credits.
The dispute is interesting in itself, and it is worth reading its more detailed aspects in a reliable article prepared by Sylwia Czubkowska. But the discussion that arose under her article provides the most food for thought. To put it mildly, it showed that the expectations of translators regarding authorship marking (not to mention royalties) are not very well understood by the average reader.
But what can be expected when, even in the professional publishing process, this can sometimes be rather difficult. And the situation is not only an issue for the Polish market.
Therefore, it is worth recalling and summarising information on copyright protection of translations and other aspects of intellectual property rights in the translation and localisation industry. It must be kept in mind that, contrary to first impressions, not only literary translations have a creative and individual character, and consequently are copyrighted works. A work may be any type of translation (including interpretation), regardless of the subject or the nature of the source material, including translation of its extracts. Of course, the requirements under copyright law must be met, i.e. the translation must have a creative and individual character and be ‘established’ (Article 1(1) of the Act of 4 February 1994 on Copyright and Related Rights).
As described later in this article, a translation is obviously a work derived from another author’s work (a derivative work), as it could not have been produced without the source material (text, speech, musical work). However, as soon as it is created, it acquires a legal existence separate from the source work, and the translator becomes the subject of moral and economic rights.
Protection of a work (translation) commences at the moment it is “established”. This concept is little understood by the layman, but is of crucial importance for interpreters in particular. What does it mean? First of all, it does not mean that the work must be fixed in any way. ‘Establishment’ is understood as reaching by a work of ‘any form, however impermanent, yet stable enough for the features and contents of the work to be artistically effective’ (judgment of the Supreme Court of 25 April 1973, I CR 91/73, OSNCP 1974, no. 3, item 50), and thus it is a matter of ‘the moment when an act of creativity manifests itself externally, beyond the sphere of the creator’s intellectual experiences, while this externalisation may be achieved in any way’ (judgment of the Supreme Court of 19 February 2014, V CSK 180/13, unpublished). The perception of the work by third parties other than the creator is important (see judgment of the Court of Appeal in Poznań of 28 August 2009, I ACa 309/09, unpublished: ‘for a work to be established, it is sufficient for it to be expressed in any form, including orally, but specified enough to be perceived by persons other than the creator’).
At this point, I want to refer to a passage from the substantiation of a relatively recent judgment of the Supreme Court of 12 December 2019 (I UK 409/18), which summarises the creative aspect of translation in a few sentences: ‘Translation from one language into another language aims to achieve a specific result. It is an autonomous matter, previously non-existent, dependent on the original text, but distinct because of the individual character of the translation and the intellectual values associated with it, expressed in the transcript (text), or even stopping at the act of translation itself.
Are the expectations and, as some internet commentators say, the ‘claims’ of translators for authorship marking and compensation for the use of the translation in additional fields of exploitation an invention of modern times? Absolutely not! Copyright protection was already granted to creators of translations at the dawn of international copyright regulations.
In 1886, ten European countries signed the Berne Convention for the Protection of Literary and Artistic Works (‘Berne Convention’) in order to unify certain principles in relation to copyright. So far, 179 countries have acceded to the Convention, and Poland has been a party to it since 1934.
The Convention also regulates copyright issues concerning translation:
- Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work.
Authors of literary and artistic works protected by this Convention shall enjoy the exclusive right of making and of authorising the translation of their works throughout the term of protection of their rights in the original works.
- Authors of dramatic, dramatico-musical and musical works shall enjoy the exclusive right of authorising:
(i) the public performance of their works, including such public performance by any means or process;
(ii) any communication to the public of the performance of their works.
- Authors of dramatic or dramatico-musical works shall enjoy, during the full term of their rights in the original works, the same rights with respect to translations thereof.
The Berne Convention laid the foundations of the international copyright protection system and introduced its basic standards that are still in force today. An interesting aspect that requires additional comment in this context is the requirement to obtain the author’s consent for the translation of the original work. The provisions of Article 8 of the Berne Convention are quite strict and unambiguous in this regard. The author of an original work enjoys the exclusive right under this article of the Convention to translate or to give their consent to the translation.
A similar principle was in force in the first Polish Copyright Act of 1926. It served as the grounds for the Judgment of the Supreme Court of 21 November 1932 (II K 1010/32, OSN 1933, no. 1, item 16), in the substantiation of which it was stated: ‘Since the said provision (Article 2) makes the exercise of copyright in translations of other persons’ works conditional on the consent of the creator of the original work (derivative copyright) or on the expiry of copyright over the original work, it should be assumed that the determination of the features of the offence consisting in the unlawful use of a translation that is somebody else’s property depends first of all on whether the person who claims the copyright over the translation has the aforementioned consent or whether the person proves the expiry of the copyright mentioned hereinabove. The findings of fact in the judgment under appeal do not support such an interpretation, since they do not show that the private prosecutor had such consent or that the copyright in question had expired at the time when the translation was being made’.
This shows that a court ruling under the first Polish Copyright Act allowed claims for using a translation only if [the translation] was done based on the consent of the creator of the translated work. The wording of Article 2 of both the Copyright Act of 1926 and the contemporary one of 1994 is significant: according to the first of these Acts, the author’s consent was required to exercise the right arising from the produced translation, whereas according to the second, current one, it was required to dispose of and use the translation. Thus, the modern legislator has considered the copyright protection of a derivative work created for private purposes: a translation does not have to be an official translation authorised by the creator of the original work in order to be protected as a work within the meaning of copyright law. Such consent will only be needed for dissemination (making it available to the public) and (economic) use. In other words, translation for private purposes does not require such consent, and such translation is still protected by law.
According to the terminology of the contemporary Polish Act on Copyright and Related Rights, a translation is a special form of a work expressed in words, namely a derivation of someone else’s work. Consequently, the provisions of the Act on Copyright and Related Rights referring to the work apply to the translation, with the proviso that – as mentioned above – the dissemination of the translation, as well as other types of work, respectively, requires the consent of the creator of the translated work and reference to this work when disseminating the translation.
Article 2 of the Copyright Act, in terms of the need to obtain the consent of the author of the original work for its translation, refers to the disposition and use. Simply put, if you want to sell your translation, you need to obtain the consent of the person who produced the original text. This does not apply to works whose economic rights have expired and which are in the public domain. However, it is also important to remember that the authorship marking belongs to the translator as well as to the author of the original work. Therefore, when you derive someone else’s work by translating it, you have to name the author of the original work (Article 2 (5) of the Copyright Act).
Authors of translations enjoy all the rights inherent in the status of authors. In addition to economic rights, they are also entitled to moral rights. The scope of these rights includes, among others: marking a work with the author’s name or a pseudonym, the right to inviolability of the content and form of a work and its reliable use or supervision over the way the work is used. It should be remembered that these are non-transferable rights – any contractual provisions cannot exclude them. Therefore, if the contract the translator signs with a publishing house contains such exclusions, it is necessary to react, as such a reservation may be considered invalid and lead to problems with the existence of the whole contract. However, one should distinguish the transfer of moral rights from the contractual waiver of the right to exercise them (the obligation not to exercise them under the principle of freedom of contract) – the latter solution is acceptable in the legal transactions practice.
A translation service contract that includes a simultaneous transfer of economic rights shall clearly specify the fields of exploitation concerned by such transfer. For example, suppose the contract with the publishing house for the translation of a book does not include the subsequent use of passages from the translation for film, television or electronic productions (e.g. games and applications). In that case, the translator may be entitled to additional compensation. It is also worth remembering that the transfer of economic rights does not implicitly include a waiver of the exercise of moral rights, including the authorship marking. In each case, however, individual analysis is required in the context of the parties’ specific arrangements. However, it is also worth stressing that in order to transfer economic rights effectively, it is necessary to conclude a contract in writing (Article 53 of the Copyright Act).
How do Polish courts approach the issue of copyright protection of translators? Below are some judgments dealing with this subject.
Judgment of the Supreme Court of 24 July 2009 (II CSK 66/09):
‘A translation from a foreign language into Polish may be a work within the meaning of the said Act if it contains the necessary features that every work must have. Therefore, it must be a manifestation of creative activity with an individual character. In the judgment under appeal, the Court of Appeal assumed, without further examination of this circumstance, that the translation of the entries in the musical encyclopaedia done by the claimant was a work.
The diagrams of individual composers featured in the English »T« edition provide simple information about their lives and output. As such, it cannot be assumed a priori that their translation was a work within the meaning of Article 1 of the Act on Copyright and Related Rights. Failure to clarify this issue, which is fundamental for settling the case, makes it necessary to accept as correct the claim raised in the cassation appeal concerning infringement of Articles 1 and 2(1) of the Act on Copyright and Related Rights.
Judgment of the Supreme Court of 29 October 1985 (I CR 312/85):
The doctrine considers that there is a close connection between copyright over the original work and copyright over the translation of that work. The translation, being a separate product created by the translator, is at the same time a reproduction of the value of the original. Hence, the exercise of the right to translate, the exploitation of that right, is at the same time indirect exploitation of the original, i.e. and the original creator’s right to it. Therefore, it must be considered that the translator not only has the right to decide to make the translated work available to third parties but also that the translator has the right to demand respect for the form of the work given by its creator and contained in the translation of that work, that is to say, to demand respect for the integrity of the translation of that work.
In light of the above, the court of the first instance should have clarified whether the defendant, by freely selecting passages from the translation by Ziemowit F. and by making changes to the characters, did not distort the content of the Theatrical Novel by Mikhail Bulgakov in the translation by Ziemowit F. The view of the court of the first instance that this would be too far-reaching as the writer’s copyright had expired, cannot be agreed with. As this view does not consider that, according to Article 3(1) of the Copyright Act, the subject matter of protection is also the copyright of the translator of the work itself, which, according to Article 3(2) of the Copyright Act, may be exercised even if the copyright in the original work has expired. Therefore, it should be recognised that the expiry of the copyright of the creator of a work does not limit the protection of the translator’s copyright over the translated work’.
Judgment of the Court of Appeal in Poznań of 12 March 1997 (I ACa 76/97):
‘A translated work is protected by copyright because it falls into the category of derivative works (Article 2 (1) of the Copyright Act of 1994). Also under the previous Act, the creator’s ability to exercise a derivative copyright and thus, inter alia, to claim protection against misappropriation of the translation’s authorship was not questioned’.
Judgment of the Court of Appeal in Katowice of 27 May 2010 (I ACa 129/10):
‘Any translation of another person’s work, using the exclusions referred to in Article 4 of the Copyright and Related Rights Act of 1994, is subject to copyright’.
The above court judgments give rise to the following issues that should be considered:
- the copyright protection of the creator of the translation is independent of the copyright protection of the author of the original work and continues even after the expiry of the latter;
- a translation must have a creative and individual character in order to be considered a work;
- the statutory exemptions provided for in Article 4 of the Copyright Act must be taken into account.
With respect to these statutory exemptions, it should be noted that there are certain categories of texts which, under current law, are not works and are therefore not covered by copyright. These include: normative acts or official drafts thereof, official documents, published patent or protection descriptions, simple press releases. Therefore, the creation and disposal of translations of these texts does not require any consents, as their use is almost unlimited. But does this mean that translations of such texts are not works either? It depends. If the translation has also an official character, these exemptions will also apply. This will be the case for translations of international agreements published in the Official Journal, or for translations of official documents concerning relations with the European Union published by governmental bodies.
The exemption of normative acts from copyright protection does not include their translations. This does not mean parallel language versions of international and EU legal acts and official translations into Polish, but translations created outside the process of adopting or enacting these acts and which do not fulfil the role of binding texts. Such a translation of a normative act constitutes a work if it meets the material requirements for protection (cf. judgment of the Court of Appeal in Katowice of 27 May 2010, I ACa 129/2010). However, such translation is not a translation of someone else’s work and therefore does not qualify as a derivative work. For example, suppose a Polish creative translation of an English law is created. In that case, its author acquires full moral and economic rights from that point on, and the legality of use does not require anyone’s consent. Such a translation will have the character of the original work.
As a result, the difference between the copyright approach to the translation of official legal acts and working documents, which is not subject to subjective copyright, and the non-official translation of such documents, which is protected by Polish copyright law, becomes clear.
It is also worth noting that, as a rule, also certified translations are not devoid of the creative element and may be subject to copyright protection.
I have devoted a separate article to these latter issues https://tlumaczenia-prawnicze.eu/tlumaczenia-uwierzytelnione-specjalistyczne-oraz-prawnicze-jako-utwory-w-rozumieniu-prawa-autorskiego/
While discussing intellectual property rights, the issue of machine translation cannot be ignored. This issue is still fairly new in legal doctrine, and no case law exists on the subject. However, some legal scholars have commented on this issue. In the opinion of D. Flisak, in principle, authorship of works generated by a computer program cannot be attributed to the software user. At the same time, the cited author rejects the concept of indirect authorship of the software developer, considering that a different view would give rise to rather insoluble difficulties concerning the practical implementation of the software developer’s rights. Finally, D. Flisak formulates an accurate thesis that no copyrightable material will be created if a machine actually replaces a human. The author provides here the example of the use of translation software, noting that the final result in the form of translation of the text is not derived from the effort of the human intellect, but automated logic (P. P. Juściński, Prawo autorskie w obliczu rozwoju sztucznej inteligencji [Copyright in light of the development of artificial intelligence], ZNUJ. PPWI 2019, no. 1, pp. 5-44). A similar view was expressed by Jan Błeszyński in his publication Tłumaczenie jako utwór chroniony prawem autorskim [Translation as a copyrighted work].
The above approach to machine translation, or more generally to the outcomes of the (automatic) operation of computer software, which prevails in Polish doctrine, would not find acceptance among representatives of English law doctrine.
Copyright, Designs and Patents Act 1988 grants rights in computer-generated works to be the person by whom the arrangements necessary for the creation of the work are undertaken. Moreover, it should be noted that this solution creates a legal fiction consisting in assuming, in such a case, authorship by a person who, in fact (in accordance with the concept of the author under the Act itself, Section 9(1) which states that the author of a work is the person who created it), is not the creator of the object created, which, moreover, explicitly results from the definition of such works adopted in the said Act (Section 178, according to which a computer-generated work means the work is generated by computer in circumstances such that there is no human author of the work).
Putting this into practice – under Polish law a ‘raw’ machine translation is not a work and does not have an author, while under English law, the copyright in such a translation belongs to the person ‘pushing the button’. The situation becomes slightly more complicated when the raw machine translation is post-edited. As such, the end outcome of such a process will be assessed for an individual and creative character.
With regard to machine translation, attention should also be drawn to the need to obtain the consent of the author of the original work if the user intends to use widely available and free cloud-based MT systems for translation. This need arises from the fact that the introduction of any content into such tools may implicitly grant a licence for further use by the solution provider. Such a situation may constitute an infringement of the copyright of the creator of the original work, even if the translation is intended to be made for personal use. More about these issues I have written HERE and HERE.
The last thread I want to address is intellectual property rights to translation memories. This subject is terra incognita even for the translation market participants themselves.
A translation memory (TM) is a type of database composed of records (segments) containing at least two language versions of a given text extract, usually in the form of a sentence. A translation memory is usually a file or several files whose format is supported by CAT software. Translation memories are a relatively new type of database, with its own specific format (segmentation, alignment process, tags), properties and functionalities, and constitute a new type of ‘work’ created from text extracts and their derivations by third parties, which have intellectual property rights separate from those of the author of the source text and the translator.
Translation memories as databases are protected under Polish law in two ways:
1) Copyright protection as works under the Act of 4 February 1994 on Copyright and Related Rights:
Article 3 [Collections of Works]
Collections, anthologies, selections and databases which have the characteristics of a work are subject to copyright even if they contain unprotected material, provided that their selection, arrangement or composition is of a creative nature, without prejudice to the rights in each of the works used.
2) Sui generis protection under the Act of 27 July 2001 on the Protection of Databases, which implements an EU Directive:
Article 1 Databases are subject to protection specified in the Act regardless of the protection granted pursuant to the Act of 4 February 1994 on Copyright and Related Rights (Journal of Laws of 2006 no. 90, item 631, no. 94, item 658, no. 121, item 843 and of 2007 no. 99, item 662) to databases fulfilling the features of a work.
The European Union has developed a unique model of database protection in the form of protection of its own kind (sui generis rights). Recognising that ‘the making of databases requires the investment of considerable human, technical and financial resources’, while at the same time recognising that ‘such databases can be copied or accessed at a fraction of the cost needed to design them independently’, the EU legislator decided to create mechanisms of protection that apply irrespective of whether or not the database in question has the characteristics of a work (in the sense of copyright). In the latter case, we speak of sui generis protection of the database (and therefore of protection of its own kind).
For further reading on the issue of intellectual property rights in translation memories, see the following publications:
- So is the translator the creator and subject of copyright? Definitely yes. This issue does not raise any doubts on the grounds of legal regulations, case law and statements of representatives of copyright doctrine. This issue has been evident from the very beginnings of international copyright law and has been unequivocally regulated by the Berne Convention. However, this issue is not obvious at all in the general perception of the public.
- In order to obtain copyright protection, a work such as a translation must fulfil the same conditions as the original work – that is, be creative and individual in character and be ‘established’.
- Contrary to popular opinion, specialist and general translations (including certified ones) may also be subject to copyright protection under the principles and subject to the exemptions described above.
- Literary translations will unquestionably, and in principle without any exemptions, be subject to copyright.
- A translator is fully entitled to claim authorship of the translation and may exercise other economic and personal rights, but should also respect the rights of the author of the original work.
- Interpretation is also subject to copyright protection even if it has not been fixed.
- The translation is also protected if it has not been completed.
- ‘Raw’ machine translations are not subject to copyright. For post-edited translations, the degree and creative nature of human intervention in the final outcome of the translation will be relevant to its eligibility as a work.
- Translation memories as databases are subject to two types of legal protection – as the subject of copyright and as protection ‘of its own kind’, independent of the status of a work, developed by the European Union.
To conclude, I highly recommend reading an article by Olga Byndiu, the section on comparing different translations of Hamlet’s monologue. The same original – four completely different interpretations. Such evidence requires no further discussion.
Recommended further reading and materials I have used to prepare this article:
Kotarska Anna, Wołoszyk Wojciech, Wykorzystanie nowoczesnych technologii języka w praktyce kancelarii prawniczej oraz wyzwania w zakresie poufności danych, praw własności intelektualnej i przetwarzania danych osobowych z tym związanych [The Use of Modern Language Technologies in Law Firm Practice and the Challenges of Data Confidentiality, Intellectual Property Rights and the Processing of Related Personal Data]
Wołoszyk Wojciech, Odpowiedzialność biura tłumaczeń za przebieg procesu tłumaczenia i zasady stosowania tłumaczenia maszynowego [Responsibility of the Translation Agency for the Translation Process and Rules on the Use of Machine Translation]
Wołoszyk Wojciech, Historia pewnego sporu sądowego z tłumaczeniem maszynowym w tle… (Systran c/a Komisja) [A Story of Some Court Litigation with Machine Translation in the Background… (Systran and the Commission)