How does the International Law protect literary works and their translations?

A translation should be considered a standalone literary work and it should be protected by the copyright if it fulfils the criteria of protection. The translator should be regarded as a separate author. However, any translation constitutes a reproduction of the pre-existing source work, which is usually created by a different author, and as such might also be protected by the copyright. Moreover, a translation is hardly ever created by both the author of the pre-existing work and the translator. In general, the author of a translation works independently of the author of the pre-existing work. In this sense, a translation does not fall within the category of works of collaboration or collective works but rather under the category of derivative works or composite works created on the basis of a pre-existing work. Hence, while the copyright of the translation belongs solely to the translator as its creator, the right to the translation may not be exploited without the consent of the owner of the copyright to the pre-existing source work. As a result, even multiple authorisations may be needed in order to exploit an original work and its translation(s).

There is no uniform international copyright instrument that automatically confers universal protection of literary and artistic works worldwide.

The Berne Convention for the Protection of Literary and Artistic Works

The Berne Convention for the Protection of Literary and Artistic Works dated 9 September 1886 is the first instrument of the international copyright law. According to the Berne Convention, the states that have adopted the Convention form a Union for the protection of the rights of authors to their literary and artistic works . In addition, the Berne Convention requires its signatories to grant the copyright to works to authors from other signatory states in the same way as they grant the copyright protection to their own nationals under the principle of “national treatment” . The Berne Convention is to protect “literary and artistic works”, which refers to “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression”. The catalogue contains but is not limited to books, pamphlets and other writings, in addition to lectures, addresses, sermons and other work of the same nature. What is more, the list is not exhaustive. As a result, translations, adaptations, and other alterations of a literary or artistic work are protected as original works without prejudice to the copyright in the original work.

The Berne Convention provides for that the author maintains the right in their “original work”. It does not, however, define the term “original work”. The copyright protection has a broad scope. However, it requires intellectual human intervention and awareness of achieving a result. Therefore, raw data is excluded from the protection. The term “literary works” covers both written and oral forms, as long as intellectual effort has been made. This means that literary productions in their traditional sense are protected, but protection can also apply to shorter works, such as slogans, brochures, catalogues, nomenclatures, forms, etc. In fact, it is a matter for the legislation in the countries of the Union to determine whether the protection is granted to official texts of legislative, administrative and legal nature, and to official translations of such texts. Similarly, it is a matter for the national legislation to exclude from the copyright protection, wholly or partially, political speeches or speeches delivered in the course of legal proceedings. The parties to the Berne Convention are required to provide minimum standards of the copyright law, prohibiting any requirement of formal registration, and independent of the existence of protection in the country of origin of the work. The right holder is the person who created the work and expressed its personality in this work. The term of protection granted is the life of the author and fifty years after their death .

Moreover, the Berne Convention recognizes a protection of databases stipulating that collections of literary or artistic works, which by reason of the selection and arrangement of their contents constitute intellectual creations, are protected as such, without prejudice to the copyright to each of the works being part of such collections .

The Universal Copyright Convention

The Universal Copyright Convention (1952, revised 1971) was adopted after certain international meetings held under UNESCO auspices. Its basic purpose is to secure multilateral relations of the members of the Berne Union, and to include the United States and other countries in a general system of the international copyright. In contrary to the Berne Convention, the Universal Copyright Convention entitles the contracting states to impose formalities as a condition of the copyright protection . Similarly to the Berne Convention, the Universal Copyright Convention introduces the national treatment principle. The copyright covers the exclusive right of the author to make, publish, and authorize translations of works and publication of such translations. The contracting states must ensure adequate and effective protection of works. The exclusive right of the author to translate their work is explicitly confirmed in the Universal Copyright Convention. However, the right to translate writings may, under several conditions, be restricted by a contracting state . The Universal Copyright Convention is independent of the Berne Convention but shall not, in any way, affect the Berne Convention’s provisions. In consequence, in the event of conflict between the two conventions, the terms of the Berne Convention shall govern . In order to prevent the states of the Berne Union to abandon the Berne membership, the 1971 Paris Act (revising the initial text) provides that the Universal Copyright Convention is not applicable to the relationships among countries of the Berne Union insofar as it relates to the protection of works having a country of the Berne Union as their country of origin.

The Agreement on Trade-Related Aspects of Intellectual Property Rights

The Agreement on Trade-Related Aspects of Intellectual Property Rights (hereafter TRIPS Agreement) was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) and adopted 1994 in Marrakech. It is administrated by the World Trade Organization (WTO). The European Union (EU) is also a part to the TRIPS Agreement. The TRIPS Agreement introduced intellectual property rights establishing minimum standards and extended the copyright protection and its enforcement. Article 9 of the TRIPS Agreement explicitly provides that its member states are required to comply with Articles 1 through 21 of the Berne Convention and the Appendix thereto, except for of Article 6bis that refers to moral rights. The TRIPS Agreement explicitly includes computer programs and compilations of data, whether in machine readable or other forms, which by reason of the selection or arrangement of their contents constitute intellectual creations to be protected as literary works. Such protection shall therefore be without prejudice to any copyright subsisting in the data or material itself.

The World Intellectual Property Organization Copyright Treaty

The World Intellectual Property Organization Copyright Treaty (WCT) of 1996 is administrated by the World Intellectual Property Organization. The EU is also a part to the WCT . The WCT provides for additional protection that proved necessary due to the technological revolution that has taken place since the adoption of the previous international treaties, including provisions related to computer programs, databases, and technological measures. Compilations of data (databases) that by reason of the selection or arrangement of their contents constitute intellectual creations are protected by the copyright . However, any contracting party must comply with the substantive provisions of the 1971 (Paris) Act of the Berne Convention, even if it is not bound by it. The WCT is, thus, a special agreement under the Berne Convention, which deals with the protection of works and the rights of their authors in the digital environment. It obliges its contracting parties to ensure adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors who exercise their rights covered by the treaty, including remedies to prevent further infringements. The WCT does not provide guidance to the originality of the work. It merely indicates that the term “original” refers exclusively to fixed copies that can be put into circulation as tangible objects.

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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.

©2018 by joannaosiejewicz.