The Copyright Act provides that copyright subsists in any original work of authorship that is fixed in a tangible medium of expression. Originality means that the work was not copied from some-one else and possesses at least a small amount of creativity.
Does the work of translators and indexers meet the requirements for copyright? The matter has been debated among indexers and translators for years, and the answer may not be the same for translations as for indexes and may differ for various types of either. The Copyright Act actually mentions both translations and indexes. This column focuses on translations; next month's will address the copyrightability of indexes.
A translation is a derivative work, and only the copyright owner can authorize a translation that will be distributed. This envisions a work that is translated into another language and distributed in parts of the world where that language is spoken. Derivative works are infringing if they are not created with the permission of the copyright holder. Thus, a work of fiction or a best-selling biography cannot be translated into French and distributed without the original author's or copyright holder's permission. If the author authorizes a French translation, the author owns the copyright in the translation since it is a work for hire. According to the statute, for a work for hire, the employing party is the author. In fact, the translator's name may not even be revealed in the work.
In 1976 UNESCO recommended that member states ensure through legislative action that translators be given copyright protection because of the importance of translations in culture and development, including translations of scientific and technical literature. It defined translations broadly, whether the initial work or the translation is intended to be published. (1)
The United States has not generally followed this recommendation.
There are translations that definitely would meet the originality requirement--for example, a new translation of an ancient Greek play or epic poem. The underlying work is in the public domain; thus, the translator may claim copyright if she is working from the original or an early version. Although it is a derivative of a public domain work, there is likely enough originality to make the translation eligible for copyright since these original works often exist only in fragments and different versions.
There is a second type of work for hire where there is no formal employment situation but when the translation nevertheless may be considered a work for hire. According to section 101 of the Act, a work specially ordered or commissioned for use as a contribution to a collective work is also a work for hire. The statute then includes a list of the nine types of works to which this may apply, and one of these is a translation; but the parties must agree in writing that the work will be a work for hire if it falls into one of these, categories in which case the employer is the author and owns the copyright. Thus, there are three requirements to make the non-employment, situation work a work for hire:
1. The work must be specially ordered or commissioned.
2. The work must fall into one of the nine listed categories (which translations do).
3. There must be a writing specifying that the work is a work for hire.
A more common situation faced by libraries, especially those in the for-profit sector, is when the library engages the services of a translator or translation service to translate a scientific or technical article for use within that company. This activity does not usually generate copyright concerns, but it certainly could. An article is translated and a single copy is delivered to the translator's customer (a company). Traditionally, that copy is passed around to the researchers who need to see it. The translator is paid for his services, but in no way claims copyright in the translations he produces; the copyright is in the underlying article. What happens when a company decides that it wants to digitize these works and make them available over the Internet? Over the corporate intranet?
The answer is clear for distribution over the Internet: the company has caused an unauthorized derivative work to be created and has infringed the copyright in the original article by distributing the translation. Posting something on the Internet is the equivalent of publishing the work. Absent permission from the owner of the copyright in the article, posting is infringement.
The answer is less clear for internal use of the translation. Few copyright holders have complained when a translation service produces a translation for a single corporate client. Whether it has been considered fair use or not by copyright holders is not known. Even when applying the four fair use factors, it is not clear whether this type of translation is a fair use.
Purpose and character of the use is for research, scholarship, etc., but the Texaco decision held that companies in the for-profit sector are less likely than nonprofit users to be able to claim fair use under this factor.
Nature of the copyrighted work might favor such a translation since the underlying work is a scientific or technical article, factual in nature.
The amount and substantiality factor does not favor a finding of fair use in this situation since the entire work is reproduced by the translation.
Market effect is more difficult to calculate. The article is not available in English; thus, in order to use the information in the article, it must be translated. The company has paid for one copy of the article in its original language, either through a subscription or because it has acquired the copy from an authorized document delivery service. Further, only a single copy of the translation is produced to permit its use within the company.
Most translations of scientific and technical literature are works for hire in a sense, but not in the copyright sense. Typically, in copyright law, a work for hire relates to the underlying copyrighted work. Here, the company hires a translator, but the company has no ownership rights in the copyright of the underlying article. Thus, it is not a work for hire under the copyright law.
Corporate and government agency libraries have routinely retained copies of these translations produced for their staff. Recently, these libraries have considered scanning the translations and putting them on an intranet so that they are accessible by all of the employees of that organization. Clearly, this amounts to mass reproduction and distribution of the translation; further, the translation is an unauthorized derivative work. While having the article translated and one copy maintained in the library may be fair use, wide distribution via an intranet is unlikely to be fair use. It is possible that the publisher would grant permission for posting the translation on the intranet, but permission should be requested before undertaking such distribution.
So some translations may qualify for copyright protection by possessing sufficient originality, but generally they are works for hire. Whether an unauthorized translation of an article produced for a particular company is a fair use is not clear. Distribution of these unauthorized translations, whether internally on an intranet or on the Internet, likely is infringement. Moreover, in this situation, the company is the infringer, not the translator who produced a single copy for use within the company.