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This article is written by Abhishek Sharma, pursuing Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.

This article has been published by Abanti Bose.

Introduction

Nobel laureate in literature José Saramago said: “Writers make national literature while translators make popular literature.”

The importance of the interpreter is always diminished, some of the greatest works would never have come to us without translators. Literary works such as Anna Karenina, One Hundred Years of Solitude, Rumi’s poems, to mention a few, have never been appreciated by the public as they are now. Translating a literary work involves the complex task of trying to express literature from one language to another, sometimes an almost impossible task due to some non-equivalent expressions in the literature of other languages. Although the translation is based on the existing original, the translator’s skill level deserves some degree of protection.
Even if the Berne Convention for the Protection of Literary and Artistic Works identifies translations as original works, capable of such protection, the degree of protection provided to Translators will vary between jurisdictions and only some countries like France grant author status to translators. In most jurisdictions, including India, translators do not have statutory copyrights to the works they create. Even the TRIPS Agreement does not reserve any copyright for the translator. 

Are translations similar to an original work?

The copyright of a work depends on its “originality”. The construction of originality under copyright law has a relatively lower threshold, and the traditional test of originality is that the work, skill, and judgment were incorporated into the creation of this work. For copyright, the originality of a translation depends on the translator’s perceived effort to convert a text from one language to another. This test is easily satisfied by micro textual decisions made by translators during the translation of the work. Even for very simple translations, it is likely that creative decisions will be made about which terms to use. He may have to create new devices for lack of equivalent devices, perhaps even trying to portray the true intention of work. In addition, it is a fact that the boundaries between different languages ​​are not absolute, but sacred links between languages, and in order to realize these links the author must have a good knowledge of two languages. Participate in the translation process. If the author is comfortable with both languages, then only then can he mold the original into a reality that must correspond perfectly to the two cultural contexts.
Despite the removal of the originality check, a translation is not “completely original” as the Berne Convention attempts to convey.
Article 2(3) of the Convention provides that “translations …… of a literary or artistic work are protected as original works without prejudice to the copyright of the original work”.
The use of the word “original” twice in this regulation creates a situation of contradiction. On the one hand, it says that translations must be protected as original works, and on the other hand, translations must not infringe the copyright of the original work from which they were created. This seems to suggest that the translation is an original work, a spin-off and derivative of earlier original work. Thus, the Berne Convention recognizes the right of uniformity for both the author of the source work and the author of the translation.
A fundamental principle of copyright law is that copyright exists only in the expression of a work, not in the idea behind it. The original author’s literary work is the expression of his idea, and the translation implies another expression of that idea. The translator does not build on the author’s work but conveys the author’s ideas in a new form of expression. The author believes that a literary translation that meets the criteria of originality is eligible for copyright protection.

Rights of translators in India

Section 13 of the Copyright Act 1957 (Act) provides that copyright shall exist throughout India for an original literary work. But what does this right authorize the right holder to do? So we turn to the Law, which stipulates that, in relation to literary works, copyright means the exclusive right to perform or permit certain acts such as the distribution of copies, works, adaptations of works, performing translations of the work, etc.
Thus, a translated literary work must seek permission from the original author before translating and publishing the work. Translations made without proper permission and license may be considered illegal by law and may have legal implications.
It is generally, therefore, important before undertaking or delivering a translation to obtain permission from the original author. The procedure to be followed is specified in Section 32 of the Act. There are cases where this may not be possible. For example, it may not be possible to contact the original author if the author is deceased or unknown or untraceable, or if the copyright owner of the work cannot be found. In such cases, under Section 31A, the law allows people to apply to the Intellectual Property Appeals Board (IPAB) for a required license to translate the work, among other things.

Judicial precedents in India vis-à-vis translated works

The law does not state whether the translator owns the copyright in the translation. This can only be determined on the basis of Indian court judgments.
In addition to treating a translated work as a literal translation of an original work, it can also be viewed as a derivative of an original literary work or an expression of the creation itself. . The Indian courts have considered works translated in all these ways and have reached some useful conclusions.
In Blackwood v. Parasuraman, Madras High Court ruled that the translation is copyrighted and that the translation is an original literary work. Furthermore, in Hafiz P.H. Abdul v. Abdurahiman the translation of the author is equally copyrighted. “
In Eastern Book Company v. DB Modak, the Supreme Court of India classified the literary works into: 

1. Major or earlier works that are not based on an existing theme.

2. A minor or derivative work that is a literary work based on an existing theme. The Supreme Court is considering the question of what should be considered the original standard of a derivative work and would be required in a derivative work to treat it like an original work of one author, thereby granting the author of derivative work copyright under the Act.
In its decision, the Supreme Court ruled that whether copyright was created in a derivative work would depend not only on the skill, labour and capital of the derivative work but depends on the minimum level of creativity available.

A combined reading of Section 2(d) and Section 13 of the Indian Copyright Act, at first glance, clearly states that copyright is conferred only on creators of “original literary works”. There is no provision for authorship of the translator of the original work. Furthermore, as it is clear that, the copyright owner may authorize translations of such a work. In addition, the act grants the author of the original work an additional right to perform all acts related to the translation created with his permission, as you could have done with our original work. This clause completely removes any rights the translator may have enjoyed and grants them to the author. The translator has no right to copy the work, sell it, and authorize the adaptation of the work, motion pictures and any other rights mentioned in the act. He has been reduced to a simple contract worker of the author, who received a sum for his efforts then forgotten. In many cases, even the name of the translator is not mentioned anywhere in the books he has translated.

French model of safeguarding translator’s rights

The French Intellectual Property Code provides a prime example of a translator’s copyright, in which the translator has become a full author, eligible for protection under the French copyright regime. . However, this right is subject to the originality of the work and does not affect the copyrights of the authors in the original work. The rule states as follows: “Authors of translations, adaptations, adaptations or arrangements of intellectual works benefit from the protection provided by this rule, without affecting the rights of the author of the original work.

Currently, under Indian copyright law, translations can be protected as derivative works, only if they meet the criteria set forth in the above-mentioned rulings. However, this is not an adequate protection mechanism and involves changing the law to protect the interests of translators.

Conclusion

The Copyright Act of India should be amended in line with the French Code, by making translators ‘authors’ in their work. A translator should be given the absolute moral rights of attribution and prevention of distortion of his work. With respect to economic rights, owing to the fact that the translation derives from existing original work, without which it could not have existed, reserving the absolute economic rights of exploitation of the translated work to the translator would be unfair to the author of the original literary work.

References

  1. https://www.wipo.int/treaties/en/ip/berne/summary_berne.html
  2. https://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm
  3. https://h2o.law.harvard.edu/text_blocks/27048
  4. https://www.lawyerservices.in/Copyright-Act-1957-SECTION-32A-Licence-toreproduce-and-publish-works-for-certain-purposes
  5. https://copyright.gov.in/frmIPAB.aspx
  6. https://www.lawyerservices.in/BLACKWOOD-AND-SONS-LTD-VERSUS-AN-PARASURAMAN-1958-02-28
  7. https://www.casemine.com/judgement/in/56b49641607dba348f017751
  8. https://www.wipo.int/edocs/lexdocs/laws/en/fr/fr467en.pdf

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