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.

Retrospective - Fair dealing in modern Canada

What are the limits to what you can do with copyrighted material that you've bought? The degree of freedom can vary quite a bit, even within the common law system itself, ranging from more restrictive (and, quite frankly, out-dated) levels of fair dealing such as in the UK, to the broad fair use of the United States. The position of fair dealing in common law countries took a huge leap in the beginning of the new millennium, in the frozen North of all places.

The land of maple syrup, lumberjacks, and apparently fair dealing

The hallmark case of the early 2000s in the development of fair dealing and its application in Canada was CCH Canadian Ltd v Law Society of Upper Canada which not only shaped subsequent legislation, but changed the approach taken to fair dealing within the judiciary. The case was one of several where the Supreme Court of Canada flexed its muscle and actively developed the interpretations of fair dealing provisions in Canada.

To provide the case with some exposition, fair dealing essentially is a set of categories through which copyrighted material can be used. In Canada, the UK and Australia fair dealing is restricted to fixed categories, such as criticism and review, study and research, and the reporting of news, with the US standing alone with a much broader, open-ended policy of fair dealing (in the US referred to as 'fair use'); leaving out set categories and opening up fair use to a much wider interpretation and application by the judiciary. One could describe the former jurisdictions as a feeding bowl approach, where the acts allowed are merely provided as exceptions as opposed to being intrinsically embedded in the copyright provisions or copyright itself as a concept. What this means is that essentially the exceptions are treated as leftovers, or in another sense inferior to that of the rights in copyright and their execution. The US legislation takes a much more lenient approach, evaluating the possibly infringing act through its nature and purpose, clearly allowing for more wiggle-room and judicial interpretation than its counterparts.

The case of CCH dealt with the copying of legal materials for practitioners and law firms within Ontario, seldom including other parts of Canada as well, where cases, legislation and other works were copied and sent to their customers for a fee. The Law Society also offered photocopying services for anyone wishing to copy the materials themselves. CCH Canadian took exception to this use of copyrighted material, some of which were owned by them, and sued the Law Society for copyright infringement. The matter went as far as the Supreme Court of Canada, where the case dealt with a number of issues, but the more influential of which considerations over fair were dealing under the Canadian legislation.

One quote in the case, albeit not directly related to the fair dealing discussed, from the case of Théberge v Galerie d'Art du Petit Champlain Inc by Justice Binnie, showcasing the Court's attitude towards copyright quite well:

"The Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator (or, more accurately, to prevent someone other than the creator from appropriating whatever benefits may be generated)... The proper balance among these and other public policy objectives lies not only in recognizing the creator’s rights but in giving due weight to their limited nature."

What this approach does differently is discuss the limited nature of the rights, whereas often the rights of authors and content creators alike is treated as absolute while fair dealing is purely annexed to those rights. The balancing of public interest and rights is imperative when considering fairness, which is an operative part of all fair dealing. If balance between people’s interests and their rights is not struck real fairness can never be attained.

In its deliberation of fair dealing the Court formulated the approach that should be taken when assessing proper fair dealing, more specifically fairness in that dealing, using both the US legislation discussed above and the English case of Hubbard v Vosper and set six factors that need to be assessed in determining the fairness in fair dealing; (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work. In their decision the Law Society had not infringed copyright and their actions fell square within fair dealing. The purpose of the dealing refers to a possible commercial or defamatory use of the works, while its nature also plays a part in the deliberation, that being whether the work is published or confidential for example. Amount refers to how much of the work was copied, be it a page from a book or the entire work; the more copied, the more likely it will not be a fair amount. Would copying the work be something that has to be done, with no alternatives, or would other ways of accessing or using the same or similar material be available, and at what cost or effort would this come at. Finally whether the copying has a detrimental effect on the work or its sales has to be considered, with a satiric work clearly not affecting a factual work’s sales in the same market. The terms themselves are left relatively open, providing space for deliberation and interpretation on a case-by-case basis.

The vigilant guardians of copyright

Without diving too deep into the specific findings of the Court, one conclusion can be drawn from the outcome and the language used; the Court changed the approach often taken in copyright from a rights holder emphasized approach to a user-centric approach. As stated before showed a change of attitude within the judiciary, placing fair dealing not merely as an allowance provision, but as a set of intrinsic user rights that existed by virtue of the public's need to use their legally purchased material in ways which were not foreseen in the drafting of earlier laws. What the Canadian Supreme Court did was bring fair dealing closer to the 21st century, and brought it back into life. 

This case and ones after it spurred the Canadian Parliament to act and a piece of legislation was introduced, the Copyright Modernization Act, which brought the old laws more in line with the Internet, clarified the position of internet service providers and permitted certain acts of copying by consumers.