Translation copyright

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  • Would the creator of a Japanese translation of Thomas Wolfe's "Look Homeward, Angel" enjoy copyright to his/her work independent of the original novel?
  • The short answer here is yes, the translator does enjoy copyright in her original expression embodied in the translation. But whether that copyright is independent of the original novel depends on what you mean by independent. Since the copyright in "Look Homeward, Angel" was renewed in 1956, it seems that the novel is still protected (until 2014, I think, barring further legislative extensions). Therefore a derivative work like a translation must either be licensed by the rights holder in the original or it will be infringing. Enforcement of the copyright in the translation would necessarily involve the rights holder in the original, as well. In that sense, the translator's copyright is not independent. On the other, if the translation is prepared relatively recently, its copyright will persist well past the expiration of the copyright in the original. In that sense, it is independent.
  • Thanks very much for this lucid answer! To complicate things a bit, if the translation were published in a country that followed the Berne convention presumably there would be no issue of the rights holder to the original, since copyright duration only extends to 50 years after the author's death, and for Wolfe that would be 1988. In such a country then Look Homeward, Angel is in the public domain, even though its copyright is still in effect in the US?
  • The Berne Convention sets life of the author plus 50 years as a minimum standard of protection, not a uniform requirement. Most countries, like the US, have adopted longer terms; in Japan the current term is life of the author plus 75 years.

    To determine if "Look Homeward, Angel" is in the public domain in Japan involves a complex set of circumstances including provisions of Japanese law (when the longer term was adopted and how previously published works were treated), a determination of what is the country of origin for the novel (was it published simultaneously in multiple countries and which of those locations were members of which international agreements) and the provisions and dates of adherence (by Japan and the country of origin) to the relevant international agreements (including Berne, the Universal Copyright Convention and TRIPSs, as well as, possibly, bilateral agreements).

    All of which is to indicate that, before you decide to publish a translation in another country in reliance on the belief that the original text is in the public domain in that country, you should get expert legal advice.
  • Your lesson in the finer points of copyright law are much appreciated!
  • Actually, I have a question following this point a bit further if you don't mind.

    Assuming that "Look Homeward, Angel" is NOT in the public domain of Japan, it is protected by copyright law, and the rights to translate are presumably held by the author. If someone were to prepare a translation of the book into Japanese, that translation would be the translator's copyright, even though it infringes on the original author's copyright.

    However, once this hypothetical Japanese translation is prepared (even though it infringes on copyright), it obviously cannot be sold since this would totally violate the original author's copyright protection. However, if the translator were to instead post his translation online for free, what are the ramifications of doing so?

    I can imagine that as a sort of "fan translation," it would be tolerated/ignored if the original right holders have no plans for a formal Japanese translation of the novel, and if they do have plans (or feel that it is a source of lost revenue), they would probably ask for the translator to remove his work. If the translator (after posting his translation to the internet) is totally compliant with the original author's/right holder's wishes, could it still lead to legal ramifications?

    I ask because I am walking through similar territory in preparing the translation of a work which I have no copyright to. This work, however, is a scholarly text and deals with information esoteric enough that next-to-nothing exists written in the language I wish to translate it to. (Nor are any books on the topic available for translation due to being in the public domain.) My translation would be simply for purposes of education of people who cannot read the primary source material, and if I were asked to remove the translations, I would be totally compliant to do so. I just don't want to put myself in legal jeopardy over offering such information.
  • Fan translations, such as you describe, clockwork butterfly, are often tolerated and sometimes even appreciated by rightsholders. Translation is a transformative use that falls within the rightsholder's purview, though. Your description of how things would go is quite plausible. However, especially since we're dealing with international law here, I would personally be more comfortable in this situation either getting permission from the copyright holder or speaking with an international intellectual property lawyer about it.

    This all assumes that the work being translated is creative in nature. Since facts are not copyrightable, this analysis might be quite different were you talking about translating scientific research or computer manuals.
  • This all assumes that the work being translated is creative in nature. Since facts are not copyrightable, this analysis might be quite different were you talking about translating scientific research or computer manuals.
    Some facts DO seem to be copyright protected nowadays, or at least, patentable. DNA sequences come to mind. My guess is the analysis wouldn't be much different for scientific research or computer manuals, either. Copyrights cast a wide net.
  • Facts aren't specifically protected by copyright. Patents aren't the same thing, and have issues all of their own.

    Of course, the presentation of the facts might be protected by copyright if sufficiently creative (although the fact itself would still not be copyrightable), or a compilation of facts may be protected if "selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship..." (Feist Publications, Inc. v. Rural Telephone Service Company, Inc.).
  • The owner of a copyright work has the exclusive right to adapt that work - and a translation is an adaptation. Outside of fair-dealing considerations, a translation will therefore require permission.

    The translation in itself will only attract further copyright in so far as the translator's skill and effort has gone into it - this means that the translation work, but only that, is an original work in which exclusive rights subsist. A further translation of the translation relies on the earlier skill and effort and is thus an adaptation of the first translator's work (and the original author's naturally).

    Of course, we need to consider is who the actual owners are and this depends on the jurisdiction. The owner is normally the creator but in the case of employment it is often the employer that owns the work. In the case of commissioning an adaptation/translation, it would be the height of stupidity not to get the copyright assigned back to the commissioner via the contract. Is this not common in translation work or are royalties typical?

    So assuming you own the copyright of the translation you certainly have rights in principle in regards to the publication of adaptations of this translation. It does not matter about the form of publication, be it as a collected work or not. However, you are basically under the thumb of the original copyright owner and your rights will be limited by the nature of the permission given to you.

    The Berne Convention says nothing about fees - just rights. I would recommend reading any contracts you have signed to see which rights you retain and those which you have assigned away.

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