Don’t Get Lost in Translation: Copyright Protection in Translated Works
December 17, 2021
By Naomi Zener & Prudence Etkin
“Writers make national literature, while translators make universal literature.” - José Saramago
In Canada, copyright arises automatically on creation of “every original literary, artistic, musical, and dramatic work”, which also includes translations of written and audiovisual works, such as books and movies. A translation is generally a derivation of an original work, and is also a copyright-protected work pursuant to Sections 2 and 13 of the Copyright Act (the “Act”), provided it is an original work meeting the skill and judgment requirements set out in CCH Canadian Ltd v Law Society of Upper Canada (LSUC), 2004 SCC 13. The process of translating from one language to another is often referred to as a subjective, artistic process. Providing that a translation is more than a reproduction of the underlying work in another language, it will be protected by copyright. While a translation may be the proper subject matter for copyright protection, there are the twin issues of ownership of the copyright in the translation: 1) whether authorized or unauthorized; and 2) the moral rights therein. In the case of both authorized and unauthorized translations, moral rights will be retained by the translator unless waived in writing, in favour of the person or party seeking the waiver.
Copyright in Translations
Pursuant to Section 3(1)(a) of the Act, the author and owner of copyright in a work owns and controls the right to translate, produce, and reproduce their work. Furthermore, they have the right to license (exclusively and non-exclusively) and/or assign any of their rights to another person or entity. Any written, audio, and audiovisual work can be translated from one language to another. Presuming a translator has copyright protection in their translation, the author and owner of the underlying work needs to know what copyright protection and rights they have when it comes to both authorized and unauthorized translations.
Authorized translations occur when the copyright owner of a work allows another person to translate their work into another language. Copyright ownership in an authorized translation of an underlying work is clear: the translator will be the first owner of the copyright in the translation. However, ss. 13(3) of the Act provides for an exception if the translation was made during the course of employment: the copyright will be owned by the employer. Where the translator is engaged as an independent contractor, the services agreement between the copyright owner of the underlying work and the translator should govern who owns the copyright in the translation. In some cases, the translator will be permitted to retain copyright ownership in the translation, and in others, the copyright will be assigned to the copyright owner of the original work.
A translator creates an unauthorized translation when they do not obtain consent of the copyright owner of the original work - such a translation infringes up the copyright in the underlying work. The law regarding the copyright protection of an unauthorized translation is unsettled: both jurisprudence and academic sources suggest that an unauthorized translation should attract its own copyright protection, even where it is an infringing work, provided that the translation meets the necessary originality requirements. In this context, the original author is likely to maintain their right to claim both equitable relief (e.g., injunction) and monetary damages for the copyright infringement of their work. This copyright ownership conundrum occurs because the translator is not the author (and likely not the copyright owner) of the underlying work. While an author and owner of copyright in the original work may request a court order to have the unauthorized work destroyed, they themselves may not reproduce and publish that work, as the translator would retain the sole right to do so. It may be reasonable to assume that an employer will be considered the first owner of an unauthorized translation that is made in the course of the translator’s employment. As the status of unauthorized translations is unsettled, this determination will likely be a factual inquiry.
It is important to note that in the case of both authorized and unauthorized translations, whether made during the course of employment or as an independent contractor, the translator will have moral rights in the translation. Pursuant to ss.14.1(2) of the Act, moral rights can only be waived in writing. In light of this, the copyright owner should always seek a moral rights waiver from the translator to ensure they can modify the work or associate it with any cause, institution, or organization. Furthermore, the waiver of moral rights will enable the copyright owner to choose whether the translator’s name is connected with the work.
Confirming Copyright Ownership of Translated Works
It’s good practice for a copyright owner of a work and the translator to enter into a written agreement that governs the services and copyright ownership of the translation. Where there is no services agreement, the copyright owner of the underlying work could negotiate with the translator for an assignment of copyright ownership in the translation. All copyright assignments must be in writing and signed by the copyright owner per ss.13(4) of the Act. The same is true of exclusive copyright licenses.
In the absence of a written agreement granting the right to translate, the translator would be both the author and copyright owner of the translation, even where the translation was not authorized. In the case of a verbal agreement, moral rights would not be waived by either the author of the underlying work or the translator (ss.14.1(2)).This limits the translator’s ability to make any changes to the original work, so as to prejudice the author of the underlying work, and requires the translator to give attribution to said author. In the Supreme Court of Canada’s decision in Apple Computer, Inc. v. Mackintosh Computers Ltd.; Apple Computer, Inc. v. 115778 Canada Inc.,  2 S.C.R. 209 (“Apple”), the Court made clear that the translator’s ability to exploit their rights in the translation is subject to the rights of the author and copyright owner in the underlying work. For example, the translator would be able to put their name on the translation but could not prevent the author of the original work from receiving acknowledgment as the author thereof. Therefore, disputes over the quality of the translation will be resolved in light of the original owner’s prevailing copyrights. While fortune favours the bold, a translation services agreement favours certainty for the parties and their copyright ownership in the translation.
We recommend that the author and copyright owner in an original work always enter into a translation services agreement with the translator to ensure both parties’ interests are spelled out. This may not always be the practice in a given industry, so it is important to speak with a competent lawyer to determine what makes sense in each case. For example, it is publishing industry practice for translators of literary works (whether fiction or non-fiction) to: (a) retain copyright ownership of the translation; (b) be paid a flat fee; and (c) receive royalty payments for the sale of the translation, rather than simply receiving a flat fee only for the services rendered.
The following is a non-exhaustive list of issues to consider when drafting an agreement for translation services:
- Non-exclusive vs. exclusive license in the underlying work: With a non-exclusive license, the copyright owner of the underlying work is free to grant an unlimited number of non-exclusive licenses to third parties to translate the work. Whereas an exclusive license limits the copyright owner’s ability to grant the same rights to someone else – including to the owner itself. The license grant must be carefully drafted with consideration of the underlying work’s copyright owner’s interests.
- Look and feel of the translation: This concept relates to the amount of control that the author/copyright owner of the underlying work can expect to maintain with respect to the look and feel of the translations. For example, a “look and feel” provision may address changes to the overall format, images, drawings, graphs, or approval rights over the translation.
- Copyright assignment: Inclusion of an assignment grant from the translator to the author and copyright owner of the original work addresses the latter party’s interest in owning copyrights in the translation.
- Waiver of moral rights: A translator retains moral rights in their translation unless such rights are formally waived in writing. If not waived, the translator retains the following rights:
- the right to attribution (to be named as the author of the translation);
- the right of integrity (to not have it be edited, mutilated, or destroyed); and
- the right of association (to not have their work associated with a cause, organization, or institution).
- Remuneration: You need to determine if the translator is being paid a flat fee and/or royalties from sales of the translation. Be aware that standards will vary based on the nature (e.g., fiction, non-fiction) and genre of work.
- Credit: The nature of the credit given to the translator is negotiated by the parties in the context of industry norms. Issues of size, font, and placement of the credit on the physical work should be considered.
- Translator in the business of translations — trained, insured, and bonded: The translator should be an expert in providing translation services, licensed (if applicable), insured, and bonded, or have professional liability coverage. This can determine the nature of the policy, and the extent of the translator’s coverage. The author may require evidence of the translator’s insurance obligations in addition to a waiver of any claims against the authors own insurance policies.
The substance and form of a translation services agreement will vary based on the specific context. Establishing the scope of the parties’ copyright ownership in advance will help ensure that intentions are not “lost in translation”. While fortune favours the bold, a translation services agreement favours certainty for the parties and their copyright ownership in the translation.
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