I'm glad to hear I'm not the only one interested in this issue. What you do on your website by translating articles from the Turkish press is exactly what I have in mind.
Actually, my idea is to start a collaborative project among translators working in different languages. That's why I want to make sure about the legal aspect, before I start asking and checking if there's an interest in participating.
Tim Drayton wrote:
Thanks for raising this issue because I have wondered about it as well.
For a long time I have posted on my websites my own translations of Turkish press articles on topical issues. This I do both to showcase my translation skills and to offer a general resource to the Internet community.
That's what I like about it, it is useful on both ends.
Now, this is some of the stuff I found while researching this issue, and some of the reasons why, although I'm 90% sure there is no problem involved, it doesn't always look so clear-cut. (I am going to post this on my personal site too, once I get it ready). To sum up:
Unlicensed use of copyrighted material can generally be considered as fair use, ie. not an infringement of copyright, if the derivative work is
b) for educational and informative purposes (teaching, news reporting, commenting, research, scolarship, etc.)
All those conditions do seem to apply to nonprofit translations of journalistic, educational and informative content.
In support of this conclusion, see (emphasis mine):
Copyright Law and the Fair Use Doctrine
The unlicensed use of a copyright is not an infringement unless it conflicts with one of the specific exclusive rights conferred by the copyright statute. ... One of the exclusive rights of a copyright holder is the right to authorize the preparation of derivative works based upon the copyrighted work. 17 U.S.C. §106(2). A derivative work is defined as one “based upon one or more preexisting works, such as translation, musical arrangement ... or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other remodifications which, as a whole, represent an original work of authorship, is a ‘derivative work’”. 17 U.S.C. §101. Section 107, the legislative endorsement of the doctrine of “fair use” is one of the various exceptions to the exclusive rights conferred by §106. Section 107 provides four factors to be considered in determining whether the use made of a work is a fair use:
1) the purpose and character of the use, including whether such use is of commercial nature or is for
nonprofit educational purposes; ...
(See also the other 3 factors).
See also: http://www.publaw.com/work.html
Although every commercial use is not presumptively an unfair use, and therefore conclusively determinative, this test indicates that a preference for fair use will be granted to works that are created for noncommercial or educational purposes rather than for commercial purposes.
... the purposes specifically contemplated by the fair use provision -- (1) criticism and comment, (2) parody and satire, (3) scholarship and research, (4) news reporting and (5) teaching.
This also seems to support the conclusion that nonprofit translations of articles are fair use and you don't need to ask permission or licensing or pay copyright fees, as the translation would be for purposes 3, 4, and most likely 5 (possibly also 1, if you add some commentary).
... The scope of fair use is greater when an "informational" work - a work of facts or information, a work of scholarship or of news reporting -- as opposed to a more "creative" work -- a work of fiction -- is involved or when a work is designed to inform or educate rather than to entertain.
Again, I think this applies too, as it's translations of informational work, not fiction - and work whose nature and purpose is to inform or educate, rather than entertain.
See also the guidelines at the bottom of this page:
Factual works receive less [copyright] protection than fictional works.
Now, here are the points where, in theory, I think there may be grey areas:
1) Does the US "fair use" doctrine apply in similar ways across different nations, via international agreements? or are there significant differences to consider?
2) Is "derivative" the same as "transformative"?
Above, translation is mentioned as an example of "derivative" work. In the passage below, "transformative" is defined as something that alters the first work with a further purpose, as opposed to mere copying. I would think a translation does fall within this definition too, but it's not 100% clear.
Again, from http://www.independentdealer.com/marketing/marketing3.asp :
There are no “bright-line rules”, rather, each case raising the question of fair use must be decided on its own facts after weighing all of the factors.
The commercial or non-commercial nature of the work must be considered but should not be a presumption of fair or unfair use. The dispositive question is whether the work is “transformative”, i.e. whether it “adds something new, with a further purpose or different character”, or “alters the first work with a new expression, meaning or message”. The purpose of the work is to be given considerable weight. For instance, a parody that comments on the original work, as opposed to copying the work merely to get attention, is more likely to be viewed as having a valid defense under the fair use doctrine.
The definition of "transformative" also affects this factor:
The “effect of the use upon the potential market for or value of the copyrighted work” requires the court to consider the first and third factors. If the copy is a mere duplication for commercial purposes, the material is presumptively unfair, especially if the duplicate would serve as a market replacement for the original. However, if the work is non-commercial or “transformative”, the copyright holder must show some likelihood of further harm exists to the market of the original or to the market for derivative works[\b].
I very much doubt that any newspaper or magazine publisher would argue they'd be commercially hurt by a nonprofit dissemination of their copyrighted content in another language.
And that's confirmed by the fact you never got any complaints for your translations, and I never heard anyone doing something similar getting any such complaints.
But in terms of conceptual definition, "transformative" seems to be confusing - see for instance a criticism at http://www.sacbar.org/members/saclawyer/march_april2004/copyright_laws.html :
The question of whether a subsequent work is "transformative" of the original should have no place in the lexicon used to determine fair use. Indeed, the concept of transformation, and even the word "transform" itself, appears in a completely different section of the Copyright Act, which pertains to derivative works. A "derivative work," over which the original author has exclusive control, is defined under the Copyright Act as "a work based upon one or more pre- existing works, such as a translation, musical arrangement, art reproduction, abridgement, condensation, . . . or any other form in which a work may be recast, transformed or adapted." 17 U.S.C. 106(2) (emphasis added). If a subsequent work is "transformative" of a pre-existing work, then the second work is a derivative work and the second author may be held liable for copyright infringement. However, the fact that a second work is allegedly "transformative" of the pre-existing work has little or nothing to do with the question of fair use.
3) I am quite sure that citing and translating only passages and excerpts from articles is considered fair use (after all it's done in university papers and essays, too, as long as you cite the source). However, does it change if entire articles are systematically translated? This also doesn't seem 100% clear:
From http://www.independentdealer.com/marketing/marketing3.asp :
The “amount and substantiality of the portion used in relation to the copyrighted work as a whole” should be considered in relation to the purpose of the copying.
From http://www.publaw.com/work.html :
The critical determination is whether the quality and value of the materials copied are reasonable in relation to the purpose of copying. [b]This is not a pure ratio or an absolute quantity of words test since using a whole work may be fair use under some circumstances, while using a small fraction of a work may not qualify for fair use under other circumstances.
The sanctioning of the unauthorized copying of entire works as fair use is an exception and not the rule. Therefore, anyone who uses all or substantially all of a work, particularly a literary work, is asking for trouble, and will probably be found to have exceeded the bounds of fair use.
The quantity, as well as the quality and importance, of the copied material must be considered. One criterion that courts frequently evaluate is to make certain that the user of the copyrighted material has taken no more than was necessary to achieve the purpose for which the user copied the materials.
Also, again from http://www.publaw.com/fairuse.html :
[quote]If you are quoting another's work without permission, and are relying upon the fair use doctrine to protect your copying, make certain that you quote accurately, provide proper credit to the source of the copied work, and if possible add value to the quoted material by comparing, criticizing or commenting upon such material.[\quote]
Now, my interpretation is:
- translation is not mere copying; it could be argued to add value, even without the presence of additional comments
- the kind of translation we're talking about here would not be of literary works (for which permission needs to be asked and rights expressly granted by the copyright holder - see http://www.pen.org/translation/responsi.html )
- it would be as accurate as possible and would give proper credit to the source
- translating an entire article can be considered necessary to achieve the purpose for which the translation is done in the first place - ie. divulge its content in a different language while maintaining faithfulness to the original. (Of course using an excerpt may be enough in some cases, especially for the kind of activity weblogs do, they quote a passage and comment on it - but when the intent is not simply to comment on one part, but make the article available in another language, then I would argue it becomes necessary - and fairer to the original - to translate it in full).
In conclusion, if my interpretations are correct, and most of all judging from practice (instances of personal sites and weblogs, and even no-profit organisations), I would think there should be no legal problem.
However... that's just an interpretation, and I am not a lawyer.
Maybe I'm being overly scrupulous, but I just want to be as sure as can be also on the theory aspect, in terms of legal principles. I understand there's no fixed rules and it depends from case to case, but an expert in law should be able to give a more authoritative opinion. I would really appreciate getting that kind of feedback.
[Edited at 2004-12-02 11:05]