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Is Translating a Book Copyright Infringement

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Manish Jindal

February 9, 2024

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Is Translating a Book Copyright Infringement

Engaging in the translation of a book can offer a gratifying and enriching experience, providing both personal satisfaction and valuable knowledge acquisition.

It allows readers to access literature from different cultures and languages.

However, there’s a legal concern that every translator should be aware of: copyright infringement. Is translating a book copyright infringement?

This article examines the said question by examining copyright laws, fair use, and other factors that can determine if a translation is violating the original author’s copyright.

Definition of Copyright

Copyright is a legal protection granted to creators of original works, such as literary, musical, or artistic creations.

This protection gives creators exclusive rights to reproduce, distribute, perform, or create adaptations of their work.

These rights aid in guaranteeing that creators have the ability to profit from and regulate the use of their intellectual property.

Understanding the Right to Translate Literary Works under Indian Copyright Law

The Copyright Act of 1957 in India gives writers of literary works the sole authority to decide whether their works are translated into other languages.

This implies that before translating and publishing the original author’s work, people or organisations must get their consent.

Failure to obtain appropriate permissions and licenses may result in legal implications.

Obtaining permission to translate a literary work is generally the first step before undertaking or commissioning a translation.

Section 32 of the Act describes the procedure for asking for authorisation.

There may be situations where it is challenging or unfeasible to determine the original author or copyright owner.

This happens particularly in cases where the author has passed away or cannot be located.

In such scenarios, according to Section 31A of the Act 1957, individuals have the option to apply for a compulsory license through the Intellectual Property Appellate Board to translate the work and other related actions.

Overall, the right to translate a literary work is an essential part of copyright law in India, and individuals must obtain the necessary permissions and licenses to avoid legal issues.

Copyright Ownership in Translated Works under Indian Law: Insights from Court Decisions

The question of whether a translator holds copyright in a translated work is not directly addressed in the Copyright Act of India. However, Indian courts have provided some guidance on this matter.

Courts have looked at translated works from multiple angles – as literal translations of original works, derivatives of original literary works, and expressions of creativity in their own right.

Based on these perspectives, courts have concluded that a translation can indeed be considered an original literary work, therefore, can be subject to copyright protection.

In the case of Blackwood v. Parasuraman, the Madras High Court held that translations can be considered original literary works and are subject to copyright protection.

Similarly, in Hafiz P.H. Abdul v. Abdurahiman, the Kerala High Court held that the person who undertakes the translation work is considered the author of the work, and holds the copyright over the translation.

Therefore, while the Copyright Act may not explicitly address copyright ownership in translated works, Indian courts have recognised that translators may hold copyright in their translations, particularly when the translation involved creativity and skill.

The Standard of Originality Required for Copyright Protection in Derivative Works

The Supreme Court of India in the Eastern Book Company v. DB Modak case (2005 (30) PTC 253) addressed the issue of originality of derivative works in copyright law.

The court classified literary works into two categories:

  • primary or prior works, which are not based on existing subject matter, and
  • secondary or derivative works, which are based on existing subject matter.

The court analysed the standard of originality required for a derivative work to be considered an original work of an author, and thus eligible for copyright protection under the Act.

The court ruling established that establishing copyright in a derivative work requires more than just showcasing a certain level of skill, effort, and financial investment in its production.

It is also essential to demonstrate that the work exhibits a certain degree of creativity.

The Concept of Moral Rights in a Translated Work in India

The concept of moral rights in a translated work is not straightforward, and its existence is not clearly defined in the Indian Copyright Act.

Moral rights are the rights that an author or performer has to safeguard the originality and legitimacy of their work.

The 2012 amendments to the Act introduced the concept of “moral rights” of performers in Section 38B, but the concept of moral rights in literature and authorship is rooted in Section 57 of the Act.

Section 57 deals with the “special rights” conferred upon an author of a literary work, independent of their copyright.

It grants the author the right to assert authorship over the work, as well as the ability to prevent or sue for damages in the event that the literary work is distorted, mutilated, or altered before the period of the copyright expires.

Determining the entitlement of moral rights for a translator in a translated work requires initial consideration of whether the translator has ownership rights in the work.

If the exercise of translation involves skill, labor, capital, judgment, and a minimal level of creativity, the translator would have a copyright in the translated work and possess the moral rights granted under Section 57 of the Act.

However, this determination can only be made by referring to judgments passed by Indian Courts, as the Act does not specifically state whether a translator has copyright in translations.

What is the Proper Way to Acknowledge a Translator in a Published Work?

Crediting a translator in a publication is not only a matter of acknowledging their work but also of respecting their legal and moral rights.

Determining the proper credit for a translator is contingent upon the ownership of the copyright in the translated material, which is determined by the degree of creativity and originality applied during the translation procedure.

If the translator holds the copyright, they are entitled to be recognised as the originator of the translated material and receive appropriate recognition that acknowledges their ownership.

In this case, the credit should include a statement such as “Translation copyright © Translator year of publication,” which not only acknowledges the translator’s contribution but also protects their rights as a copyright holder.

In cases where the translator does not possess a copyright, it is still important to acknowledge their contribution as the individual responsible for the translation.

It is considered appropriate professional behavior to recognise the translator of a piece of work and respect their moral rights, which include the right to be credited as the translator.

In such cases, the credit should include a simple statement such as “Translated by [Name of Translator].”

Translating a Book: A Copyright Dilemma?

Understanding Infringement

Copyright infringement is the act of violating the exclusive rights granted to the content creator without obtaining permission.

This encompasses actions that are not authorised, including copying, sharing, publicly displaying, or creating new works based on the original, such as translations.

When Is Translation an Infringement?

The act of translating copyrighted material without permission is typically viewed as a violation of the exclusive rights of creators.

The translation is considered a derivative work because it entails altering or adjusting the source material.

Unauthorised translations may deprive the original creator of control over their work and its distribution in other languages.

Exceptions and Limitations

There are some exceptions and limitations to copyright law that may allow for translations in specific circumstances.

For example, the concept of fair use permits limited use of copyrighted material under certain conditions.

Additionally, there are situations in which copyrighted works may be in the public domain, meaning they are no longer protected by copyright law and can be freely translated.

The Role of Fair Use in Translation

The legal doctrine of fair use allows for limited use of copyrighted material without obtaining permission from the rights holder.

To determine if a translation falls under fair use, courts consider four factors:

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Purpose and Character of the Use

This factor examines the purpose of the translation, such as whether it’s for commercial or educational purposes.

Non-commercial, educational, or transformative uses are more likely to be considered fair use.

A transformative use is one that adds new meaning or value to the original work, such as a parody or a critical analysis.

Nature of the Copyrighted Work

Courts consider various factors when analysing a copyrighted work, including its nature, which encompasses elements such as creativity and factualness.

Works that present factual information, like non-fiction books and news articles, may have a greater chance of being considered fair use because of the public benefit they offer.

Amount and Substantiality of the Portion Used

This factor looks at the amount of the original work used in the translation.

When determining fair use, translations that only use a small portion of the original work or omit significant parts are more likely to be considered acceptable.

Effect of the Use on the Potential Market

Lastly, courts examine the impact of the translation on the potential market for the original work. If a translation harms the market for the original work or its derivatives, it’s less likely to be considered fair use.

How to Avoid Copyright Infringement in Translation?

To avoid copyright infringement in translation, the translator should follow these best practices:

  • Obtain permission: Seek permission from the copyright owner of the original work before beginning the translation process. This is especially important if the translator intends to publish or distribute the translation commercially.
  • Verify public domain status: Check if the original work is in the public domain before translating it. Public domain works are not protected by copyright and can be translated without permission.
  • Use authorised translations: If an authorised translation of the original work is available, use it instead of creating a new translation. Authorised translations are often produced by the copyright owner or with their permission and can be used without infringing on the copyright.
  • Use fair use: In some cases, it may be possible to use a limited portion of the original work under the doctrine of fair use. However, the use must be for a transformative purpose such as criticism, commentary, or research.
  • Give credit: Properly credit the original author and copyright owner in the translated work. This includes providing a citation for the original work and the translator’s name.
  • Be original: Ensure that the translation is not a mere reproduction of the original work but contains some originality, creativity, and interpretation. The translator must avoid copying the original work word for word and instead create a new work that is based on the original.
  • Consult legal experts: When in doubt, consult legal experts to ensure that the translation does not infringe on the copyright of the original work.

The Importance of Translation for Cultural Exchange

Translation plays a vital role in promoting cultural exchange and understanding between different nations and language communities.

By translating books, ideas can be shared across borders, enriching the global literary landscape.

Balancing the protection of creators’ rights with the need for cultural exchange is an ongoing challenge in copyright law.

Penalties for Copyright Infringement

Penalties for copyright infringement can be severe, including fines, damages, and even imprisonment in some cases.

If you’re found guilty of infringing on a copyright, you may be required to pay damages to the copyright holder, cease distribution of the infringing work, or even destroy copies of the work.

It’s crucial to understand the risks and take appropriate steps to avoid infringement when translating a book.

Is Translation Considered a Process That Involves Creativity?

Yes, translation can be considered a creative process.

While the translator is working with the existing source material, they are also making a series of creative decisions in order to accurately convey the meaning of the original text in the target language.

These decisions may include choices related to word choice, sentence structure, and the overall tone and style of the translated work.

A translator may also need to adapt cultural references and idioms to make them understandable for the target audience, which requires a high degree of creativity and linguistic skill.

Furthermore, different translators may make different creative choices when working with the same source material, resulting in different translations of the same text. This highlights the subjective and creative nature of the translation process.

Overall, while translation involves working with pre-existing material, it is not a purely mechanical process and requires significant creativity and linguistic expertise to produce a high-quality translation.

Various Forms of Translation Necessitate Varying Degrees of Creativity.

Translation is not just a matter of converting words from one language to another.

Depending on the type of text being translated, different levels of creativity are required to ensure that the meaning and tone of the original text are conveyed effectively in the target language.

For example, translating a literary work such as a novel or poem requires a high level of creativity to capture the nuances of the original language, style, and cultural references.

The translator must not only be fluent in both languages but also possess an understanding of the literary devices used by the author.

On the other hand, technical translation such as a manual or scientific paper requires a more literal and precise translation, with less room for creative interpretation.

In these cases, accuracy and clarity are paramount to ensure that the information is communicated effectively.

Translating marketing materials, such as advertisements or websites, requires a balance between accuracy and creative flair.

The translator must understand the target audience and culture and be able to adapt the message to appeal to them while maintaining the essence of the original text.

In summary, different types of translations require different levels of creativity, and a successful translator must possess the skills and experience to adapt to the specific needs of each project.

Conclusion

Translating a book without permission can indeed constitute copyright infringement.

To avoid legal issues, it’s essential to understand the principles of copyright law, fair use, and the importance of seeking permission from the copyright holder.

By respecting the rights of creators while promoting cultural exchange through translation, we can ensure a thriving global literary community.

FAQs

Can I translate a copyrighted book without permission for personal use?

While personal use may fall under fair use in some cases, it’s not guaranteed. It’s always best to seek permission from the copyright holder to avoid potential legal issues.

How can I find out if a book is in the public domain?

Research the publication date and the author’s death date, as well as any copyright notices, to determine if a work is in the public domain.

Can I use a machine translation tool to translate a copyrighted book?

Using machine translation for personal, non-commercial purposes is generally acceptable, but translating and distributing a copyrighted book using machine translation without permission could lead to copyright infringement.

It’s best to seek permission from the copyright holder for substantial translations.

What should I do if I want to translate a book for educational purposes?

Educational purposes may fall under fair use, but it’s not guaranteed.

It’s advisable to seek permission from the copyright holder or consult with a legal expert to ensure that your translation adheres to copyright laws.

Can I publish my translation of a copyrighted book if I don’t profit from it?

Even if you don’t profit from the translation, distributing it without permission can still be considered copyright infringement.

To avoid legal issues, always seek permission from the copyright holder before publishing a translation of a copyrighted work.

Is the translator entitled to copyright for their translated work?

Whether a translator has a copyright in a translated work would depend on the level of originality and creativity involved in the translation.

If the translation involves a significant amount of creative interpretation and original expression by the translator, then the translator may have a copyright in the translated work.

However, if the translation is merely a literal rendering of the original work with no significant creative contribution by the translator, then the translator may not have a copyright in the translated work.

What is translation copyright?

A translation copyright is a type of copyright that protects the translation of a work from its original language into a new language.

It provides the translator with exclusive rights over the translated work, including the right to reproduce, distribute, and display the work, as well as the right to create derivative works based on the translation.

The translation copyright is separate from the copyright of the original work, which is held by the author or owner of the original work.

If a translator has a copyright in the translated work, they must be credited accordingly and their permission sought before any use or reproduction of the translated work.

What is the length of time that a translated work is protected by copyright?

When it comes to the duration of copyright protection for a translation, it is generally treated in the same way as any other literary work.

In most countries, the translator enjoys the same level of copyright protection as the original author of the work.

The duration of copyright protection for a translation varies from country to country, but in general, the duration is the lifetime of the translator plus an additional period of time, which is usually around 70 years.

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