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"It is illegal to translate without a written consent" (copyright notice)
Thread poster: Claudia Alvis

Claudia Alvis  Identity Verified
Peru
Local time: 05:50
Partial member
Spanish
+ ...
Sep 17, 2008

I'm in a conundrum here, I've never faced this situation.

I'm working on a medium-sized project with several kinds of files. They're all part of service provided through a web site and I am working with an agency, not the direct client. The first files I delivered were the tagged, technical files that are going to be uploaded. The next files I have to deliver are the legal agreements that the user has to sign with the end client, which are also tagged and will be uploaded by the way.

But on one of the legal agreements, there's a very clear clause about the copyright of a file: "It is illegal to reproduce, transmit, TRANSLATE, etc. this [type of document], without the written consent of the [name of the author of the product]".

One of the first files I delivered was exactly the file referred to on that paragraph. I don't know if my client's client is the author of the files and service or not. The service is distributed online by many companies, so there's a fair change that the direct client is not the intellectual author.

I don't know what to do now. I guess my translating the file and the copyright notice about the files, makes me liable somehow, but I've never been in a similar situation. Should I ask my client (the agency) for that written consent. What if they refuse? What should I do next. There's nothing in the Vendor Agreement I signed with the agency about an issue like this. Also, the author is American based and the translation will be distributed outside the United States.

I appreciate your time for reading this and any help you might provide me.

Claudia

[Edited at 2008-09-18 07:36]


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xxxsavaria
Hungary
Local time: 12:50
English to Hungarian
+ ...
What I would do Sep 17, 2008

I wouldn't start translating it,at least not as long as I consulted the agency/or agency informed the end client about this clause.If the agency or the end client declared in written(!),that I can disregard this clause,then I would immediately begin translating.

It is better to be cautious sometimes in order not to get yourself into a huge trouble - a legal scandal.

[Módosítva: 2008-09-17 21:29]


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Ken Cox  Identity Verified
Local time: 12:50
German to English
+ ...
maybe OK, maybe not... Sep 17, 2008

Restrictive notices of this sort are common on many commercial documents, and it is certainly possible that the client has permission to have the documents be translated. It is also possible that the client *does not* have this permission.

My suggestion (but I'm neither a legal expert nor an expert on this issue) is to ask the agency (or the client if you are dealing directly with the end client) for assurance that the translation does not violate the restriction. If you are at all nervous or unsatisfied with the answer, ask them to provide you a signed (and notarised) statement from the copyright holder authorising the (ultimate) client to have the documents be translated, or failing that, a signed statement from the agency or client saying that they assume full liability for any claims that may arise as a result of copyright violation and that they will defend you against any such claims (a 'hold harmless & indeminification declaration' - check with a lawyer for the details). If your client can't provide satisfactory assurance, you might (again) consult a lawyer to determine whether you are actually at risk in your specific case.
Personally, I refuse to translate explicitly copyrighted material unless I have good reason to believe that the ultimate client is authorised to have a translation be made. In most cases, this is a matter of trusting the agency and having reasonable grounds to believe that the document originates from the end client, who thus holds the copyright. I have occasionally been offered jobs where the source document is a scanned copy of a copyrighted document, and in such cases I always point out to the agency that the material is copyrighted and I won't touch it without proof that the client has suitable authorisation. So far this proof has never materialised, so I assume that (a) the client didn't have authorisation and (b) they probably found a different translator.

Good luck!

[Edited at 2008-09-17 22:30]

[Edited at 2008-09-17 22:31]

[Edited at 2008-09-17 22:32]

[Edited at 2008-09-17 22:32]


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xxxsavaria
Hungary
Local time: 12:50
English to Hungarian
+ ...
There will always be such people Sep 18, 2008

. So far this proof has never materialised, so I assume that (a) the client didn't have authorisation and (b) they probably found a different translator.

Good luck!

[Edited at 2008-09-17 22:30]

[Edited at 2008-09-17 22:31]

[Edited at 2008-09-17 22:32]

[Edited at 2008-09-17 22:32]


There are always some people who disregard the laws in force and go against them.
So,I mean you can always find a translator who does not take into account the legal consequences of such a break of the law,and deliberately goes against them,either because s/he does not know about them(that does not save him from the consequences),or (and that's even worse) because s/he doesn't care,becuase s/he is not interested...or whatever...


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Samuel Murray  Identity Verified
Netherlands
Local time: 12:50
Member (2006)
English to Afrikaans
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Unenforceable (at least in my country) Sep 18, 2008

Claudia Alvis wrote:
But on one of the legal agreements, there's a very clear clause about the copyright of a file: "It is illegal to reproduce, transmit, TRANSLATE, etc. this [type of document], without the written consent of the [name of the author of the product]".

Also, the author is American based and the translation will be distributed outside the United States.


I'm not an expert in American law, but it is my understanding that anyone may translate anything without prior consent if the translation is done under fair use principles. IANAL, but my country has a similar rule.

In my own country, you don't need the copyright holder's permission to translate something. You do need permission if you intend to "distribute" the translation to a third party.

The notice that you're not allowed to translate it, is not legally enforceable, IMO.


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nordiste  Identity Verified
France
Local time: 12:50
Member (2005)
English to French
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enforceable in this case Sep 18, 2008

Samuel Murray wrote:

I'm not an expert in American law, but it is my understanding that anyone may translate anything without prior consent if the translation is done under fair use principles. IANAL, but my country has a similar rule.

In my own country, you don't need the copyright holder's permission to translate something. You do need permission if you intend to "distribute" the translation to a third party.

The notice that you're not allowed to translate it, is not legally enforceable, IMO.


Of course everybody can translate whatever documents for his own pleasure.
But as soon as the translator transfers his translation to an agency (and get paid for it) we are not in a private situation anymore.

In this case I understand that Claudia got the document from an agency. I would point the non-translation clause to them and ask them to confirm in written that they have permission to translate from the owner of the original document (or from one of his representant). If they answer yes... then the translator can proceed.

If they don't answer or make excuses... personally I would not continue the project.

Claudia could also consult her insurance adviser - I suppose she has a liability insurance for her translation business.


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Claudia Alvis  Identity Verified
Peru
Local time: 05:50
Partial member
Spanish
+ ...
TOPIC STARTER
Liability Sep 18, 2008

nordiste wrote:

But as soon as the translator transfers his translation to an agency (and get paid for it) we are not in a private situation anymore.


That was exactly my reasoning. Even though I think it's very unlikely that any legal actions could be taken, I don't want to be in that kind of position.

Ken, the problem is that the agreement was the last file of the project I translated. I had already delivered most of the files so I don't really have any leverage. Besides the deadline is in a few hours, so I don't have a lot of time to call people asking for legal advice.

Still, I wanted to request the agency some kind of 'release of liability' but I don't how or WHAT to ask for. I guess I'll call the PM and explain the situation.

Thanks.

Claudia


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Samuel Murray  Identity Verified
Netherlands
Local time: 12:50
Member (2006)
English to Afrikaans
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I disagree somewhat Sep 18, 2008

nordiste wrote:
Of course everybody can translate whatever documents for his own pleasure.
But as soon as the translator transfers his translation to an agency (and get paid for it) we are not in a private situation anymore.


Well, it depends on US legislation of course, and IANAL. But I don't think it matters if the translation is done by the person who wants it, or by someone he appoints. Nor do I think it matters if the translation work is paid for.

A private translation is one that is not distributed to third parties.

Distribute to third parties = no longer private.
Paying for the translation = irrelevant.

As for the involvement of translation agencies or translation companies doing the translation, all these entities form part of the party who commissions the translation -- the translator and the agency are not third parties to whom the translation has been distributed.

As long as the person who commissions the translation is the legal owner of the original text (and I mean the owner, not the copyright holder), then he can commission anyone to do the translation for him, for free or for a fee, without prior permission from the copyright holder, as long as the translation is not distributed to other parties.

I would point the non-translation clause to them and ask them to confirm in written that they have permission to translate from the owner of the original document (or from one of his representant).


Well, that would be the prudent thing to do, in any case.

[Edited at 2008-09-18 08:31]


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Ken Cox  Identity Verified
Local time: 12:50
German to English
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further Sep 18, 2008

Claudia Alvis wrote:

Ken, the problem is that the agreement was the last file of the project I translated. I had already delivered most of the files so I don't really have any leverage. Besides the deadline is in a few hours, so I don't have a lot of time to call people asking for legal advice.

Claudia


OK, but you are still potentially at risk for the reasons mentioned by nordiste. In your position, I would point out the restriction notice to the agency and ask them for written assurance that they or the client has permission to translate the documents. If they do not provide this assurance, I would suggest that you consult a lawyer or your insurance company if you have professional liability insurance.

Regards,
Ken

[Edited at 2008-09-18 08:41]


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Philippe Etienne  Identity Verified
Spain
Local time: 12:50
Member
English to French
Are we law enforcers? Sep 18, 2008

Common sense tells me the customer is liable to observe copyright restrictions or other requirements in what they distribute. I would be surprised if they could forward liability to the party they hired. The translator is simply instrumental in this, just like any cutlery reseller, who are not liable if one of their items injures somebody when used by a psychopath. You just assume that whatever buyer will comply with the law, even though you know that knifes and forks are sharp and potentially dangerous (spoons are alledgedly less harmful).

Assuming that the sky falls on your head for translating this, couldn't you sensibly claim in court that you assumed in good faith that the customer made arrangements to comply with the law (Well, not anymore since you opened a thread that can be held against you, hehehehe)?.

I don't think it is our role to make sure that whatever material we translate meets whatever legal requirements (as long as the whole subject matter is not illegal and/or against our moral/whatever grounds, and even then, the translator is instrumental).
For instance, if I translate that such diagram was reviewed by whatever official body or that such device complies with whatever standard according to procedure so-and-so, I don't ask any compliance certificate from the customer.

Without any clue about the actual legal stand on such issue, I would nevertheless point out this sentence to them, but with no further action from me unless they tell me to stop translating.

Philippe


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FarkasAndras
Local time: 12:50
English to Hungarian
+ ...
shrug Sep 18, 2008

I wouldn't give a damn.
As I see it, it's your clients liability to ensure that everything is fine and dandy legally speaking. It's just not your job to seek out the copyright holder and get their permission, or to check that such permission has been given. They take responsibility, not you.

But then I live in a country where starting frivolous lawsuits isn't a national sport so I can do this safely.


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Can Altinbay  Identity Verified
Local time: 06:50
Japanese to English
+ ...
Which country might that be? Sep 18, 2008

FarkasAndras wrote:

I wouldn't give a damn.
As I see it, it's your clients liability to ensure that everything is fine and dandy legally speaking. It's just not your job to seek out the copyright holder and get their permission, or to check that such permission has been given. They take responsibility, not you.

But then I live in a country where starting frivolous lawsuits isn't a national sport so I can do this safely.


I'd like to know which country you are referring to. If you're talking the U.S., you are completely wrong. In any case, this sort of country bashing doesn't belong here.


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Victor Dewsbery  Identity Verified
Germany
Local time: 12:50
German to English
+ ...
What I would do Sep 18, 2008

I would write a note to the agency with the following points:

1. You sent me all those technical files, which I translated in good faith.

2. Now, in the very last file(s) you sent me, I see that translation of certain texts is prohibited unless written permission has been given. These restricted texts are part of the work that I have already done; I was not aware of this limitation.

3. I assume that you (the agency) or your client have clarified the legal position of this work, otherwise you would not have commissioned me to do the translation.

Depending on the time scale, either:
4a. Please confirm that you have clarified the legal position, so that I can continue to work on the remaining files without any misgivings.
or:
4b. In order to meet the deadline, I will continue working on the remaining files unless and until you tell me to stop doing so. This is on the assumption that you have clarified or will clarify the legal position.

5. Once I have delivered the files, I cannot tell you what to do with them. But I felt it important to inform you of the limitation expressed in the texts, so that you can take any necessary steps to avoid legal complications.


I am not a lawyer and cannot offer legal advice, but my feeling is that if any points of law have been violated, the agency and/or its client are responsible, not you.


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Lawyer-Linguist  Identity Verified
Portugal
Local time: 11:50
Dutch to English
+ ...
Good advice Sep 18, 2008

Victor Dewsbery wrote:

I would write a note to the agency with the following points:

1. You sent me all those technical files, which I translated in good faith.

2. Now, in the very last file(s) you sent me, I see that translation of certain texts is prohibited unless written permission has been given. These restricted texts are part of the work that I have already done; I was not aware of this limitation.

3. I assume that you (the agency) or your client have clarified the legal position of this work, otherwise you would not have commissioned me to do the translation.

Depending on the time scale, either:
4a. Please confirm that you have clarified the legal position, so that I can continue to work on the remaining files without any misgivings.
or:
4b. In order to meet the deadline, I will continue working on the remaining files unless and until you tell me to stop doing so. This is on the assumption that you have clarified or will clarify the legal position.

5. Once I have delivered the files, I cannot tell you what to do with them. But I felt it important to inform you of the limitation expressed in the texts, so that you can take any necessary steps to avoid legal complications.



Don't necessarily agree with you last comment Victor about who is (or can be held) responsible - it turns in law on a number of things, beyond the scope of this discussion - but otherwise give a thumbs up to your good advice here. This is along the lines of how I'd handle it at this late stage of the proceedings Claudia.

Best of luck
Debs





[Edited at 2008-09-18 14:39]


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Claudia Alvis  Identity Verified
Peru
Local time: 05:50
Partial member
Spanish
+ ...
TOPIC STARTER
Thanks Sep 18, 2008

Can Altinbay wrote:

I'd like to know which country you are referring to. If you're talking the U.S., you are completely wrong. In any case, this sort of country bashing doesn't belong here.


It's always the US. The only country in the world that can be bashed in a politically correct way, not only in these forums--and very often, but everywhere else. I'm not pleased, but I'm not shocked either.

Victor, actually I had all the files from the beginning but I chose to translate the technical ones first, and left the legal text to the very end. Needless to say, from now on I'll always translate the legal stuff first.

I called my client and expressed my concerns. I used some of the points I read here; it seems that he wasn't aware of that particular clause (in his defense it's somehow hidden on the document), but I've always assumed that agencies have provisions related to copyrights on the contract they and their clients sign. Another lesson learned: never assume anything. Anyway, he's going to talk to his client and let me know.

Thanks everyone for your good advice and suggestion. I really appreciate it.

Claudia


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