Copyright Query -- English to Russian

[Michael Trittipo]

>. . . there is NO legal need to request copyright clearance
>when publishing translations in the [US] of books published in
>the Soviet Union prior to 1973 . . .
>. . . and . . . NO legal need to request copyright
>clearance when publishing translations in Russia . . . of books published in
>the United States and Britain prior to 1973.
>  [Someone else] . . . fully confirms the facts above [by saying:]
>>". . . you do need clearance unless . . .."

There seems to be some confusion here about what acts are covered by
copyright law.

The original question was very limited (indeed, too limited to provide
grounds for a succinct answer):
"Does an English-to-Russian translator need copyright clearance for books
published in the United States and Britain prior to 1973?"
By "limited" I mean in particular that the original question didn't say
anything about (a) where the translation would be made, (b) whether the
translation would be published, or (c) where the translation, once made,
would be published.  It also didn't specify whether the hypothetical
translation would be of the entire work or just a relatively small part,
but it's fair to read it as being of the entire work.

These omissions are important, because the very **making** of a translation
of an entire work protected by U.S. copyright, NOT just a possible later
publication of the translation somewhere, is a violation of copyright law
in the U.S if it is not authorized by the copyright owner.  So if a
translator is working from English into Russian in the U.S., the translator
violates U.S. copyright law by making the translation, regardless whether
the translation is ever published.  There is no "personal use" or
"non-commercial" exception for complete translations of entire written
works (although the lack of commercial purpose may be a factor in a "fair
use" analysis); and in any event an assumed purpose of later publication
would eliminate the factual predicate to the non-extant exception anyway.

Depending on various assumptions about (a) through (c) and other facts, one
could come up with various answers up or down as either a legal or an
enforcement matter.  I don't intend to catalogue them.  I hope only to
forestall any mistaken impression among those reading this thread, that
pre-publication events and their locations needn't be consdered.  I don't
know why so many non-lawyer Americans focus on publication, but it's a
mistake to do so.  The very making of the translation, quite apart from its
publication, can be a violation of U.S. copyright law.  If the translation
is made in the U.S. of a U.S.-protected work, the language is irrelevant,
because languages are not proxies for countries, and ANY such translation,
not just translations into the languages of certain countries, is a
violation if unauthorized and not fair use.

I do note that Professor Cleminson was very precise on these points.  He
wrote that "a case of copyright infringement occurs where the material is
being used [not necessarily published] and a potential breach . . . occurs
[not necessarily where publication does, if ever], not where the
[source-language] material was created.  It is therefore necessary to
consult the laws of the country in which the translation is being **made,**
published and distributed."  My only quibble would be to suggest an "or" in
place of the last "and," but the alternative rather than cumulative "and"
might be understood as well.

Michael Trittipo
J.D. 1981
(Yes, I am a lawyer, and I have litigated copyright cases on both winning
and losing sides, but no, this is not legal advice, it's only background
information, and this sig is too long already.)

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