Translation memories are typically used in conjunction with a dedicated computer-aided translation tool, or another computer program. Translation Memory is a repository where segments of translations are stored and, especially when an update or a new version of a translation is needed, it is used to provide consistent terminology in all versions that are made on its basis. Translation memories contain data arranged systematically and methodically; therefore they could be qualified as a “collection” or a “database”.
The Berne Convention provides for protected works that “collections of literary or artistic works (…) which, by reason of the selection and arrangement of their contents, constitute intellectual creations, shall be protected as such, without prejudice to the copyright in each of the works forming part of such collections” .
The TRIPS Agreement and the World Copyright Treaty extend the protection of databases to compilations of data or other material which by reason of the selection or arrangement of their contents constitute intellectual creations . Therefore, in order to meet the general conditions for the copyright protection under the International Law, the translation memory must be original, and it must express the author’s personality. The copyright implicitly refers to an author as a human creator of the work .
The EU law provides for a specific protection of databases, which is broader than the protection provided under the International Law. The objective of Directive 96/9/EC is to harmonize the protection of databases in all the Member States. A database is defined as “a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means” . The term “database” refers to any collection of works, data or other materials, separable from one another without the value of their content being affected, including a method or a system of some sort for the retrieval of each of its constituent materials . It therefore encompasses databases that include copyrighted and non-copyrighted elements, regardless of their form .
According to the position of the CJEU in Football Dataco I, “as regards the setting up of a database, that criterion of originality is satisfied when, through the selection or arrangement of the data which it contains, its author expresses his creative ability in an original manner by making free and creative choices and thus stamps his ‘personal touch’” . The CJEU stated that the intellectual effort and skill to create such data are not relevant in order to assess the eligibility of a database for the copyright protection . Furthermore, the significant labor and skill required to produce the given database could not as such justify protection if they do not express any originality in the selection or arrangement of the data, which this database contains . The object of the copyright on a database is thus its structure, independently of the copyright that may exist or not on the elements contained in it. Consequently, it is the structure of a translation memory that is decisive in this respect. If it is original within the constraints of the above-mentioned provisions (choice of terms, segmenting and aligning of the data), it may enjoy the copyright protection. By contrast, if the choices are determined by a technique, there is no copyright protection because of the lack of originality .
Databases, within the meaning of Directive 96/9/EC , are protected in the EU by the copyright in a similar way that is the case of the protection upon the International Law. Besides, they enjoy a Sui Generis right . Both rights are to be applied separately or cumulatively, if the conditions for both regimes are met. The Sui Generis right aims at protecting the result of the substantial investment made by the database author. This right has the potential to provide a protection for translation memories that do not qualify to fall under the copyright protection. According to the Directive, the Member States shall provide for a right for the author of a database that shows that “there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or reutilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database” . The formulation stresses that the beneficiary of the protection is the author of the respective database, who excluded any protection given to their subcontractors .
Apart from that, the contribution of the author must be qualitatively and/or quantitatively “substantial” relying on obtaining or verifying the content of the database. This contribution “may consist in the deployment of financial resources and/or the expending of time, effort and energy” . The Sui Generis protection is shorter than the copyright protection and lasts 15 years from the first of January of the year following the date of completion of the database. However, Article 10(3) of the Database Directive stipulates that “any substantial change, evaluated qualitatively or quantitatively, to the contents of a database, including any substantial change resulting from the accumulation of successive additions, deletions or alterations, which would result in the database being considered to be a substantial new investment, evaluated qualitatively or quantitatively, shall qualify the database resulting from that investment for its own term of protection”. Accordingly, taking into consideration that translation memories are usually continuously updated with new data, the protection term may actually be continuously extended.
The CJEU limited the concept of “investment in the obtaining of the contents of the database” to the resources applied to search through the existing materials and collect them in the database, in contrast with the resources applied for the creation of materials that established the contents of a database . Because the investment made in producing database resources (translations) is usually higher than the investment made in segmenting and aligning that pre-existing raw material, the Sui Generis right can offer protection only when the creation of a database is linked to the exercise of a principal activity (translation), in which the person creating the database is also the creator of the materials which are processed in the database (translations). The burden of proof of respective substantial investment, independent of the investment in resources used to create these translations, lasts on that person .
As the translation memory author is granted an exclusive right of extraction and an exclusive right of reutilization, they can consequently prohibit non-authorized extraction and reutilization made by third parties. Directive 96/9/EC proposes three exceptions which the Member States may transpose under their national laws. These exceptions cover the extraction for private purposes and for the purposes of illustration for teaching or scientific research, in addition to the reutilization for the purposes of public security or an administrative or judicial procedure .
Joanna Osiejewicz (2017), The Right of Translation in International and European Union Law: a Case of New Technologies, W: A. Guskos, J. Rybicki, I. Gawłowicz (red.), MEDEA 2016 Summa Technologiae : Fourth International Symposium on Art/Science/Technology, Odesa : Feniks Publishing, s. 127–135.