“While a translation can be viewed as a copy, it also contains original work. So, how does one measure the amount of creativity in a translated work?”
Copyright law protects artistic works. That includes literary pieces like novels, poems and other literary pieces. The original author is the one who owns the copyright of the piece. Translation raises an interesting question when it comes to copyright. Who will own the copyright of the translated work? Does it belong to the individual translator, the translation company, or to the author of the original work?
Is Translation a Creative Process?
Because copyright laws protect original works, translations occupy a gray area. Many would consider it to be a creative process, like the translation of poetry and other literary pieces.
But then again, there are those who would contend that translation is not a creative process at all, or at least not at the same level as writing a novel. The main ideas of the work are already in place and it just has to be expressed in a different language.
More Than Just Transferring Words
But translation is more than just transferring words. The best way to prove this is to take on a piece of translation and then try to translate it back into the original, by using a word-for-word translation. Word-for-word translation means that you just take a word and use its equivalent in the target language, without minding the context and other factors in translation.
So, when you read a work that has been translated word for word, more likely than not, it won’t sound right. It wouldn’t be able to convey the messages carried in figures of speech.
Levels of Creativity
All forms of translations involve some level of creativity. But different types of translations require different levels of creativity. For example, translating the content of a website would not require the same level of creativity when compared to translating The Iliad from the original ancient Greek to modern English.
A legal document is a specialist text, and other technical documents will also fall under that category. Those who translate specialist texts must be very careful. They are required to stick more closely to the meaning of the original text.
A missed meaning can have serious consequences. A professional translator from a translation company will go through the specialist text and make sure he/she understands the text first and use his/her specialist knowledge. But who ends up owning the copyright of that translated content? Is it different from the copyright of the original content? The internet has made things even more complicated. Publishing online is now considered to be the equivalent of publishing in a more traditional sense.
For purposes of copyright protection, the most important aspect is creativity. A work has to be original and not copied from someone else’s work. The work must also contain creativity, even if just a small amount.
While a translation can be viewed as a copy, it also contains original work. So, how does one measure the amount of creativity in a translated work?
That measure of creativity is known as the threshold of originality. Unfortunately, there is no fixed way of measuring that. It is often determined on a case-to-case basis. When it comes to copyright of translated works, it is generally accepted that machine translations do not count. That’s because machine translations are not personal intellectual creations.
Authorization from the Author
A translation is what’s known as a derivative work. For a derivative work, only the copyright owner, who is usually the author, can authorize a translation to be distributed or not. A derivative work will be considered to be a copyright infringement if it was not authorized by the copyright owner.
So, creative works like biographies and bestselling novels cannot be translated and distributed without permission from the author.
But what happens to the copyright of the original work after it gets translated?
If a translator is hired to do the translation, then the copyright of the output will also be owned by the copyright owner of the original. The name of the translator is not even required to appear on any part of the translated work. If the translator is not hired to do the translation, then the translator can be considered as a co-author, but the copyright will still belong to the original author.
Sometimes, a translation will be original enough to warrant its own copyright. The example that we have cited earlier, the translation of The Iliad, can qualify to have its own copyright. The original work is in the public domain and translating it to modern English will require a great deal of creativity.
Thus, translations can be covered by copyright law. What determines whether a translation will be covered by copyright law is the translator’s original contribution to the work, which is not easy to assess. However, in the case of a translation company that gets hired to translate documents and other written pieces, any copyright will be retained by the author.
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Ofer Tirosh is the founder of Tomedes, a leading translation company. As Tomedes deals with translating written works, he has gained a unique insight into copyright and intellectual property.