Words Reinterpreted - Copyright and Translations

As has been well-established for years, copyright protects the expression of ideas rather than the ideas themselves (more on which can be found here), no matter what your expression for that idea may be. Words especially are a very nuanced, often unique way of conveying similar ideas or stories, making them the most malleable out of all forms of more direct expression (when images can be much more subjective, at least in this writer's opinion). Although similar stories have been told for centuries, basing themselves on old folk lore or mythologies, their specific expression has always varied drastically, tacking onto the societal make-up of their time and their respective overarching themes. Translations take those works and make them available to people who otherwise would not be able to access them. With this in mind, can you translate a story and not infringe its copyright, and can a translation be a new form of expression of the same story, potentially being protected by copyright itself?

Under the Copyright, Designs and Patents Act 1988 in the United Kingdom, copyright holders have a specific set of rights in their protected works, which includes literary works. Under section 16 of the Act only the copyright holder is able to make an 'adaptation' of the work, which specifically includes translations. Should you choose to make a translation of a work, without seeking a proper license to do so from the copyright holder, you would be infringing their copyright (specifically section 21 of the CDPA). This follows Article 8 of the Berne Convention for the Protection of Literary and Artistic Works that gives authors "...the exclusive right of making and of authorizing the translation of their works throughout the term of protection of their rights in the original works".

Is there any way for an individual to translate a work without infringing copyright then? Under the CDPA there are certain exceptions for the use of copyright protected materials that translations could potentially fall under, specifically criticism, review and news reporting and research and private study. Both exceptions provide avenues for a legitimate use of materials so far as the use is for that specific purpose and not merely done under the façade of the exception in order to create an infringing copy. Arguably, translating a copy for criticism, review or news reporting provides a sufficient reason to do so, as the understanding of the underlying material and using it in that task can be said to be fair and a proper use of copyright protected material for that purpose. The same goes for research and private study, especially when no officially translated source material is not available to be used and thus the materials could not be used to advance your own personal education or research. Arguably none of these do allow for the distribution and/or sale of a translated work, but do offer an avenue for legitimate uses of translated works should you require to do so.

Albert was a master linguist (Source: Farmers Weekly)

Other common law countries have very similar provisions dealing with the translation of copyrighted works. In the United States copyright similarly does not allow for the creation of translations of works, as under 17 USC section 106 the copyright holder has the sole right to create 'derivative works', which does include translations. Canada, much like its cousin in the South and across the pond, gives the right to translate works only to the copyright holder under the Canadian Copyright Act. Finally, Australia, much like the previous three, protects translations as a right only bestowed to the copyright holder under the Copyright Act 1968, as they are considered an adaptation of the original. Clearly the ability to translate a work is seen as an important right of the original author, and rightfully so, as the spreading of a work to new territories, often through linguistic barriers that require the translation of your work, and an opportunistic infringer could easily pounce on the popularity of a title only released in a select few countries.

This still poses the question that can a translation be a new work unto its own, and possibly be protected under copyright outside of the original work? In the US the protection in any derivative works (and in turn, translations) only extends to the newly created parts of the work that did not exist in the original. This may seem very vague, which it is, but arguably this would be any changes in expression or artistic flourishes the translator adds to his or her take on the story, either through necessity, linguistic differences or just through their own initiative. This does not create a work in itself, but does show that the translation can incur protection, even if partially so. Canadian legislation takes this a step further as it has been seen in Pasickniak v Dojacek by the Canadian Court of Appeal that a translated work is a copyright protected work in itself, wholly separate from the original work it derives from. This still does not mean the translator attains any copyright title in his/her translation as the copyright automatically vests in the copyright holder, albeit still separately.

Even so, translations can have even vast differences to the original works, and as seen above, potentially should carry more weight as separate literary works themselves without skirting the copyright of the source than you'd think. Great examples of where translations deviate onto a path of their own, at least in some terms, are works by Umberto Eco. His works often contain specific references to regional artists, works and anecdotes; material that has been noted to be changed or even omitted in his works when translated. Mr. Eco is by no means the only writer who has 'suffered' from the changes through translation, and arguably that is a part of the nature of the beast (there are instances where works have been altered for censorship as well). One could argue that when a translations steps beyond the bounds of the original drastically it could be said to be a work in itself; a reinterpretation of a story created prior. Regardless, copyright will probably not allow for the free translation and 'reimagination' of said works any time soon, as its main function is to reward the original author, not subsequent users of said material, arguably using very little imagination of their own (this writer does not, however, want to diminish their work by any means). Any aspiring translators will therefore have to keep their wits about themselves, and apply for relevant licences or approval before starting on their reinterpretation of their favorite foreign book.