Translations constitute a type of derivative works protected under Article 2(3) of the Berne Convention, without prejudice to the copyright in the pre-existing works. In certain cases, derivative works also include compilations and collections of works, which are protected under Article 2(5) of the Berne Convention, Article 10(2) of the TRIPS Agreement and Article 5 of the WCT.
Under the Berne Convention, copyright owners have the exclusive right to authorize, or not, the translation of their works . Any use of a source document for the purposes of its translation or inclusion in a database (e.g. a translation memory) takes the economic rights into account . In order to exploit any translation, authorization must be obtained from the original owner of the rights on and to the source document in the source language and from the owner of the rights on and to the translation in the other language. At the EU level, Directive 2006/115 harmonizes the rental and lending rights, while Directive 2001/29 harmonizes, to a certain extent, three (above-mentioned) economic rights .
The authorization from the right owner or right holder is required in order to reproduce, communicate, or make available to the public, distribute, rent, lend, adapt, alter, or translate a work that is protected by the copyright. However, the copyright laws include several exceptions to this rule. The Berne Convention provides for that lectures, addresses, and other works of the same nature which are delivered in public may be reproduced by the press, broadcast, and communicated to the public by wire and made subject of public communication, when such use is justified by the ‘information’ purpose . The possibility to use works freely, under certain conditions, such as making quotations from a work and using works by way of illustration in publications, broadcasts, or sound or visual recordings for teaching purposes is not excluded . Furthermore, the contracting countries may permit the reproduction of works under specific circumstances, provided that this reproduction does not infringe normal exploitation of the work and does not unreasonably harm the legitimate interests of the author.
At the EU level, the exhaustive list of exceptions and limitations to the rights of reproduction, communication to the public, and distribution is enshrined in Directive 2001/29. A mandatory exception to the right of reproduction is introduced with respect to temporary acts of reproduction that are integral and essential parts of a technological process. Their purpose is to allow for a transmission of a work in a network between third parties by an intermediary, or a lawful use of a work or other subject matter to be made, without any independent economic significance . Directive 2001/29 also includes an exhaustive list of non-mandatory exceptions , which, however, do not refer to contemporary translation tools, including translation memories and machine translation. Relying on any of the exceptions is further limited by a general “three-step test” that is recognized by the Berne Convention (Article 9(2)), the TRIPS Agreement (Article 13) and the WCT (Article 10). Also the EU Law refers to this test providing that the exceptions and limitations are to be applied (1) in certain special cases, (2) which do not conflict with the normal exploitation of the work or other subject matter, and (3) which do not unreasonably prejudice the legitimate interests of the right holder .
According to Article 2(3) of the Berne Convention, which is in fact the principal provision with regard to the respective subject matter, “translations (...) shall be protected as original works without prejudice to the copyright in the original work”. However, this formulation is not fully precise. Firstly, the expression “protected as original works” does not refer to the concept of originality as a condition for the copyright protection of a translation. Its wording presupposes that a translation is original, although it is by nature a derivative work. Derivative works are derived from “pre-existing works in a way that certain elements of those works are present in them” . These productions must, however, also contain some extra elements that constitute intellectual creations to be regarded as original. Consequently, if they add some new original elements to those contained in the pre-existing works, they must be protected in the same way as the pre-existing works from which they have been derived. Therefore, the adjective “original” is to be understood as a synonym of “pre-existing” or “non-derivative”. That means that translations are protected without prejudice to the copyright in the original work from which they derive. This construction establishes a sort of combined work, where an identical right is conferred to both the author of the source work and the author of the derivative work.
The question is, therefore, what the ratio is of recognizing the originality of a translation merely by its creation. The answer to this question may be that translation is not a purely linguistic act. The professional knowledge required of the translator is not confined to linguistics and extends to several aspects that result from professional and conventional experience or purely from life occurrences . For translations, and thus for the formation of a text in a target language it is indispensable to know not only how to use appropriate terms , but also how to edit the target text in an understandable and appropriate way by using structures which, while in general not considered to be terms, are appropriate in a given communication situation.
Although the terms are the most important components of texts, a translation of a text is not in any way limited solely to terms . The texts as “products” cannot be reduced only to the aspects of terminology because the intentions of their producers are not only contained in terms, but in all the words, structures, and even in the way of expression used by them. Knowledge needed for a translator to perform their profession is, therefore, not only the knowledge of the language, but it also includes knowledge in many other fields, such as the expertise of the subject matter, the knowledge of language rules, and even some life experience . This “human touch” in translation work can be referred to the personality expressed by the translator and implies that a translation should be regarded as a creative work in itself and considered original, even regardless of its quality, and, consequently, copyright protected .
Computer-aided translations use human-made translations to train a computer program to translate a text either by using the translations that are more frequent (statistical approach) or applying grammar rules (rule-based approach). In both cases, this is the computer program that first does a translation, taking elements from previous human-made translations and turning them into a segment. A computer-aided translation, whether completely or only partly automated, is based on the existing work, i.e. the source document. However, it is also based on previous translation works that have been aligned in a specific way and organized in a database. They are generated through the application of computer programs that could also be protected under the copyright. Therefore, the question whether computer-aided translations are protected under the copyright is complex with regard to their authorship and originality.
In order to meet the general conditions for the copyright protection , a computer-generated translation must be original, and express the author’s personality. The copyright implicitly refers to an author as a human creator of the work. However, even if generated by a machine, a machine translation always requires operations involving humans. This is because a translation does not occur through the mechanical use of equivalent expressions and formulations. The translator must first decipher and understand the sense of the text, and it is this sense that must form the basis of the target text, containing equivalent terminology . The translator must have special translational properties (translational competence) which enables them to replace equivalently the initial text with the output text . All hidden meanings and values expressed in the output text should be reconstructed. The initial text is to be similar and equivalent to the output text with regard to its content, form, style, function, etc. This means that in the output text, on the one hand, its relationship with the initial text must be confirmed, and, on the other hand, the specific language convention of the output text must be followed . There are certain degrees of equivalence to be distinguished from only maintaining the communication purpose to the use of similar lexical and semantic structures . No doubt it is thus possible to obtain multiple versions of translation of varying equivalence. In addition, the translator does not always have equivalent expressions at hand, because sometimes defined concepts exist only in the original language while they are completely alien to the target language. Therefore, a computer-aided translation should be regarded as a creative work in itself and also considered original, and consequently, copyright protected .
You may also like:
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, p. 127–135.