Intellectual Property or Commodity? Understanding the Copyright of Translated Works

Updated January 19, 2024
5 min read
Intellectual Property or Commodity? Understanding the Copyright of Translated Works

The realm of copyright law, a branch of intellectual property law, primarily aims to safeguard original works. These works encompass literature, music, and other artistic creations. However, the question of copyright becomes complex when dealing with translations. So, who owns the copyright of a German novel translated into English? Or of a French poem translated into Italian? This article delves into the intersection of translation and copyright, an intriguing subject for translators, legal experts, and artists alike.

Types of Translation in Which Copyrights Matter

Understanding the types of translation where copyright comes into play is crucial to appreciating the complexities of translating intellectual property. To delve into this, we must first grasp two foundational aspects of copyright law: original works and fixed works.

  • Original works signify creations exhibiting creativity at the most basic level. However, not all documented processes are tagged as creative. Crucially, copyright law aims to protect the expression of an idea and its output, not the idea itself.

  • Fixed works are required to exist on a relatively permanent medium. For example, a written poem is considered resolved. However, a recited but unrecorded poem does not meet this criterion as there's no access point following its declaration.

The copyright of any work is owned by its creator — the poet, in the case of the written poem. It affords the owner vital exclusive rights, such as the right to reproduce the work, to create derivative works based on the original, and to distribute copies.

Note

For example, an author could authorize the translation of their work. 

The Act of Translation and Its Implications

The intricacies of translations often make the question of copyright complex. A translated work is the same content recrafted in a different language. To illustrate, consider H.G. Wells’ novel 'The Time Machine'. When translated from English to Thai, the narrative stays the same, yet the creative act of translation introduces unique elements to the work.

Note

The translator bears the responsibility of carefully localizing the work and, in doing so, ensuring the content is both relevant and relatable to the readers in the target language. This introduces a layer of creativity to the translated work, which may be eligible for its copyright.

An individual, such as a freelance translator or a company, can administer translations. In the context of a company, the actual translation is typically performed by an employee or an associated service provider.

Now, let's examine the legalities within the context of US law. According to the Copyright Act of 1976, translations fall into the "derivative works." This means the translator can claim copyright over the new material added to the work via translation, granted the original copyright owner authorized the translation. 

Note

However, this copyright does not extend to the rights over the original work. It's essential, then, that translation agreements indicate who owns the rights to the translation to avoid confusion or legal disputes.

What Are the Rights of a Translator and IP Translation Services?

Navigating the intricacies of copyright laws in translation can often be challenging, as these laws intersect with elements of art, language, and creative expression. Therefore, understanding the rights of translators and IP translation services becomes crucial for those venturing into this area. 

  • Derivative works: Translations are considered "derivative works". Therefore, the copyright holder of the original work must authorize any translation.

  • Contractual agreements: Data about who holds copyright over translated works should be stipulated in the agreement between the translation company and the copyright owner. This agreement also goes with a consent form granting the translation company authorization. 

  • Translator's status: The status of a translator, such as whether they are an independent contractor or a company employee, can significantly impact who owns the copyright to the translated work. 

  • Company-employed translators: Translators employed by a company may not have any rights over the works they translate, and their names are not required to appear on the translated works.

  • Country-specific laws: Each country has its intellectual property laws, which can influence the determination of copyright ownership for translations. 

  • Preemptive clarity: Determining the copyright owner and stipulating these details in contracts beforehand can help avoid disputes and misunderstandings.

  • Legal expertise of translation services: Companies with substantial legal knowledge among their translators offer clear guidance for copyright holders about their translation and intellectual property rights. 

Beyond understanding these essential aspects, it's always beneficial for translators and copyright holders to seek professional legal advice to mitigate potential conflicts and issues. Continuous education and up-to-date knowledge of international copyright laws will allow them to navigate the multifaceted landscape of translation copyrights with enhanced confidence and precision.

Consulting legal practitioners or availing of translator services might be the best course of action to gain a comprehensive understanding of intellectual property laws, secure an IP Assignment Agreement Template, or clarify the legal intricacies around translations. By doing so, you'll ensure the proper entities get their due credit and a fair understanding of their rights.

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Essentially, the translation of intellectual property is no mere commodity — it's a fascinating arena where art, language, and law converge.

Article by
William Mamane
Tomedes

William Mamane is the Chief Marketing Officer of Tomedes, a translation company, and he has expertise in all types of international or digital marketing he has written about different topics, including legal translation.