Copyright Query -- English to Russian

Fri Jun 1 02:18:32 UTC 2001

A writer asked whether I "would be so kind as to point out . . . the
language in US copyright law that unequivocally refers to the making of
translations as pertaining to acts other than publication?"

In response, I promised this morning to quote the relevant statutory
language, i.e., the language supporting my assertion that if anyone makes
in the U.S. a translation into Russian (or any other language, for that
matter) of an English-language work protected by U.S. copyright, without
having received permission from the owner of the copyright in the
English-language work, and without some other defense, the translator has
violated U.S. copyright law, whether his or her translation is ever later
published or not, or where.

So here's the path through the Copyright Act.  It's straightforward.

Begin with 17 U.S.C. §501(a): "Anyone who violates any of the exclusive
rights of the copyright owner as provided by sections 106 through 121 . . .
is an infringer of the copyright . . .." (So that no one is forced to go
find a copy of U.S. Code, here's a web site cite :-) :
http://www.bitlaw.com/source/17usc/501.html.)

Next, we can look to see what the "exclusive rights" are.  Under 17 U.S.C.
§106, "the owner of a copyright under this title has the exclusive rights
to do and to authorize any of the following: (1) to reproduce the
copyrighted work in copies or phonorecords; (2) to prepare derivative works
based upon the copyrighted work; [and] (3) to distribute copies . . . of
the copyrighted work to the public by sale or other [means] . . .."
(Again, a cite to the same source:
http://www.bitlaw.com/source/17usc/106.html)

Certainly, any publication would call into play subparts 1 and 3:
publication entails both reproduction and distribution.  But the exclusive
rights of reproduction and distribution in subparts 1 and 3 are not the
only exclusive rights.  One of the others is the one in the middle, between
subparts 1 and 3: the exclusive right "to prepare derivative works."  Not
"publish derivative works," not "reproduce," and not "distribute," but
"_prepare_ derivative works."

So the third step is to see what's a "derivative work."  17 U.S.C. §101
defines it.  "A 'derivative work' is a work . . . such as a translation . .
.."  http://www.bitlaw.com/source/17usc/101.html

With that, we've found what we needed to.  Preparation of a translation is
preparation of a derivative work, and preparation of a derivative work is a
violation of the exclusive right of the copyright owner to make or
authorize the making of a derivative work, absent the copyright owner's
permission (or fair use, or a couple of other situations that are part of
the details, not the general picture).  The fact that a suit in Russia
about an eventual publication there might not succeed would not bar a U.S.
plaintiff from suing about the previous preparation of the translation in
the U.S.

Obviously, as a practical matter potential plaintiffs (i.e., copyright
owners) don't tend to know about unauthorized translations unless the
translation is published somewhere (or its existence publicized).  Unless
Microsoft puts into XP version 3 a software version of the purse owned by
the troll that Bilbo tried to pinch in The Hobbit ("'Ere now, 'oo are you?"
or something like that -- I haven't verified that quote as I have the
U.S.C. ones), plaintiffs don't tend to know what's being typed in someone's
home or office.  But this "What they don't know, they can't sue about"
limitation is merely "I won't get caught," not "It's legal."

If sections 501, 106, and 101 aren't clear enough, there's history, ample
caselaw both in the U.S. and in many other countries, and easily found
secondary authority in the form of hornbooks, treatises, etc.

Thus as to the history, for example, Robert Oakley notes that "[t]he right
to control the making of derivative works was originally designed to permit
an author to take advantage of foreign translations of his or her written
work."
http://www.ilt.columbia.edu/text_version/projects/copyright/papers/oakley.ht
ml.  (Stowes's works abroad, and Dickens's works in the U.S. are well-known
examples of the situations that motivated adding this right, back when the
U.S. was the world's largest "copyright piracy" haven.)

As for caselaw, I've cited some of the more interesting U.S. cases in
Trittipo, M., A Primer on Translations and Copyright, Global Vision,
Proceedings of the 37th Annual Conference of the American Translators
Association, Colorado Springs, October 3, 1996: 367-371.  Among treatises,
anyone interested might try William Patry's.

For whatever it may be worth, U.S. law is not alone in this.  To the
contrary.  The Berne convention also provides that the making of a
translation, even without publication, may infringe:  "Authors of literary
and artistic works protected by this Convention shall enjoy 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."
Berne Convention Section 8 (emphasis by ** added).  Likewise, Article V. 1.
of the Universal Copyright Convention provides that "The rights referred to
in article I shall include the exclusive right of the author to make,
publish and authorize the making and publication of translations . . .."
Notice again that *making*, not just publishing, the translation was one of
the acts specified.  Of course, there are various mandatory translation
licensing provisions in various national legislation.  But that's not the
present issue.

Beyond history and caselaw, you can find a good primer at
http://www.loc.gov/copyright/circs/circ1.html; it includes some of the date
information about what works get protection in the U.S., based on their
dates and places of creation, and links to circulars with more detailed
information.  Another website covering many of the basics is at
http://www.library.pitt.edu/research/copyright/.  I'd also recommend the
"10 myths of copyright" page, but I don't have the URL handy.

One final comment about the dates noted in the Copyright Office's
circulars.  It is important also to consider GATT and the Uruguay Round
Agreements Act.  The May 27, 1973 date that has been mentioned here, the
date of the Soviet Union's accession to the Universal Copyright Convention,
is not the only relevant date.  The fact that March 13, 1995 (the date of
Russia's accession to Berne) is also relevant.  Effective January 1, 1996,
the U.S. renewed (or created for the first time) copyright protection for a
number of works originally published in foreign countries.  Thus, a variety
of Soviet works were for years not protected by copyright in the United
States because the Soviet Union had not at the time been a member of any of
international copyright treaty and had no copyright relations with the U.S.
 But copyright in many pre-1973 works, including some from the then Soviet
Union, has been restored under GATT.  More information about the revival
(or in some cases retroactive creation) of protection for various foreign
works in the U.S. under GATT/URAA can be found at
http://lcweb.loc.gov/copyright/gatt.html.

To the extent the question was meant to be about Russian law only, my
apologies for having let myself be drawn into an extended discussion about
irrelevant U.S. law by merely reading the question's words and not
discerning its intended context and limitation.  My apologies also for any
offense given.  By way of reason and not excuse, it is part of the
déformation professionelle to focus on the abstract issue and the exact
wording.  I just wanted to provide a caution, in case it might protect
anyone against subjecting themselves to unanticipated problems.

The bottom line, I suppose, is that it is always a good idea to ask for
permission.  If permission is refused, or seems conditioned on overly
onerous terms, then one may want to seek counsel and explore one's risk
thresholds.  But it never hurts to ask for permission, and it could
sometimes potentially hurt not to.

HTH.

Michael Trittipo
Minneapolis, Minnesota, USA
mailto:tritt002 at tc.umn.edu

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