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Your TMs - how do you dispose of them?
Thread poster: ViktoriaG

ViktoriaG  Identity Verified
Canada
Local time: 15:55
English to French
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Sep 1, 2008

Recently, there's been discussions about possibly sharing client TMs you either created yourself or simply added to. Of course, posts discussing copyright issues came in from all directions. I started thinking - and instead of gaining a better understading on TM copyright, I just ended up with a bunch of questions. Here is what I would like to ask you:

- Do you use client A's TMs on jobs given to you by client B?
- Have you ever added a copyright statement to a TM/TDB (that is, you reserve your copyright indefinitely and grant permission to the client to use it)?
- Have you ever created a TM for client B that contained TUs from client A's TM (whether those TUs were copied as is or modified to suit client B's needs)?
- Do you believe you have the right to indefinitely use the TM you created for a client, even on jobs that have nothing to do with that client?
- How much of the TM do you believe to be your intellectual property? This is a tough question to me. I consider that the target segments are mine - I researched and wrote them. But the source segments are the client's property. And my target segments without the client's source segments are worthless. Where would you draw the line? If I convened that the TM is ultimately the client's intellectual property, I would be giving away my intellectual property by the same token. But then, that would mean that I am not allowed to keep that TM and use it on subsequent jobs, whether they be from that particular client or any other. Surely, this isn't what the majority does... So, let's say the client and I share the copyright 50/50. Does that mean that I should aks for the client's permission each time I want to use/share the TM? Does that mean the client has to ask for my permission each time they want to use/share the TM?

I believe that, of all material that can exist with copyright protection, TMs are a whole different breed. I believe it is tough to figure out how TMs should be handled. To me, since I created the TM, it is my intellectual property, and I am only granting the client the permission to use it. Of course, if I signed an NDA, that also means that, when reusing such TMs for another client, I should remove any references to the former client to keep their information confidential. So, in my use and/or sharing of such a TM, I would have to act in a way that will comply with the NDA. Is it possible to use/share a TM and still comply with the NDA? If not, is it possible to do things differently from the start to make it feasible?


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Andrea Riffo  Identity Verified
Chile
Local time: 16:55
English to Spanish
Interesting questions, Viktoria Sep 1, 2008

- Do you use client A's TMs on jobs given to you by client B?
No, never.

- Have you ever added a copyright statement to a TM/TDB (that is, you reserve your copyright indefinitely and grant permission to the client to use it)?
Nope; to be honest, I had never even thought of this possibility

- Have you ever created a TM for client B that contained TUs from client A's TM (whether those TUs were copied as is or modified to suit client B's needs)?
No, never. (a) I consider it unethical, and (b) since I work mostly in one specific field, most of my clients are each others' competitors.

- Do you believe you have the right to indefinitely use the TM you created for a client, even on jobs that have nothing to do with that client?
Tricky question. If I created the TM (meaning, the client didn't sent it to me), I believe I can use it for a different client if the source text isn't confidential. For example, if the source text is a medical paper from a medical journal and thus semi-public property (available to anyone with a subscrption), I think I am entitled to use it as aid for other similar papers that are also semi-public.

I have 2 kinds of TMs: confidential and general. The confidential TMs are named after the company I translate for, such as ABC pharmaceuticals INC. (made-up name), and I only use it for texts sent to me by that company.

The other TMs have a generic name: "medicine", "journalism", etc., and are the ones I use for non-propietary and non-confidential material.

EDIT:
I wish to add that I believe it is ok to merge my general TMs (the ones I've used for non-confidential documents) with confidential TMs. On the other hand, I would never merge a confidential (propietary) TM with a general TM.

For example, if I am translating a confidential document for ABC pharmaceuticals and remember that my general "medicine" TM has something on the specific subject, I will probably import the "medicine" TM into the "ABC parmaceuticals" TM, because I have already researched the terminology and it might be of help.

BUT if I am translating a published and thus public paper on vitamins (for example) and remember that I translated a similar (confidential) document for ABC pharmaceuticals, I wouldn't import the "ABC pharma" TM into the "medicine" TM, no matter how usefull it might be.


Greetings

[Edited at 2008-09-01 18:45]


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Samuel Murray  Identity Verified
Netherlands
Local time: 21:55
Member (2006)
English to Afrikaans
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My answers Sep 1, 2008

Viktoria Gimbe wrote:
- Do you use client A's TMs on jobs given to you by client B?


Very rarely. When I do do that, I add "!!!" in front of all source and target texts of the TM from the other client. This ensures that I get no 100% matches from it and it serves as a visual warning to me that the match comes from a different assignment.

- Have you ever added a copyright statement to a TM/TDB (that is, you reserve your copyright indefinitely and grant permission to the client to use it)?


No, but (a) I rarely share TMs with clients and (b) I don't add copyright notices to my translations either, so why add it to the TM? The fact that you share the TM with the client is an agreement by action (not sure what the legal term is) that the client can use the TM for what a reasonable person would presume he's going to use it for.

- Have you ever created a TM for client B that contained TUs from client A's TM (whether those TUs were copied as is or modified to suit client B's needs)?


Only in cases where both the source and target texts in that TM were appropriately licensed (in my particular case, GPL'ed software strings). But I wouldn't do it in other contexts.

- Do you believe you have the right to indefinitely use the TM you created for a client, even on jobs that have nothing to do with that client?


Yes. A TM is a reference work and nothing prevents you from using a reference work that was created while doing translation for someone else. This is, of course, in the absence of an agreement that materials pertaining to the job would be "returned".

- How much of the TM do you believe to be your intellectual property?


This is a difficult legal question that I have not received a satisfactory answer for.

If one regards a TM like a type of dictionary, then in terms of my country's copyright legislation the content itself can't be copyrighted, and the presentation and/or arrangement of the content is copyrighted to the creator (me, in other words).

I believe that I am the copyright holder of any translation I create, regardless of the licence of the source text, and what clients get from me when they pay me is not copyright but a licence to use it commercially and royalty-free.

But then, that would mean that I am not allowed to keep that TM and use it on subsequent jobs, whether they be from that particular client or any other.


The fact that you do not own the copyright to a reference work does not mean that you're not allowed to use that reference work in the course of your translation work.

So, let's say the client and I share the copyright 50/50. Does that mean that I should aks for the client's permission each time I want to use/share the TM?


It is my understanding that if co-authors are all copyright holders, they all have the right to relicense the work without consulting any of the the other copyright holders.

But even if you had no right to use the client's text in a translation, it wouldn't matter because you would not be using it "in the translation". You would be consulting the client's text, comparing it to the current job's source text, but you wouldn't be including the client's text in the translation.

Is it possible to use/share a TM and still comply with the NDA?


I don't think so (if I understand you correctly). If you have an NDA with client X, you can use client X's TM when doing work for client Y, but you can't give client's X's TM to client Y, even if you think you've removed identifying information. It is just too risky -- client Y might be able to deduce information from the TM, even if you think you've removed all identifying information.

[Edited at 2008-09-01 18:31]


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Samuel Murray  Identity Verified
Netherlands
Local time: 21:55
Member (2006)
English to Afrikaans
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A good point Sep 1, 2008

Andrea Riffo wrote:
Tricky question. If I created the TM (meaning, the client didn't sent it to me), I believe I can use it for a different client if the source text isn't confidential.


The thing I'd like to comment on is whether the translator receives a TM from the client or creates one himself. I must confess that my other post was written entirely from the perspective and assumption that I create TM and that clients do not provide TMs.

I rarely get client supplied TMs, but when I do, I keep them strictly separate from my own TMs, and when the job is done and I create a final TM for the job, I keep the client's TM separate and I don't use it for other jobs.

To me, a client supplied TM is like a borrowed book. It is not a gift from the client, and it is not a perk either. It belongs to the client, but I may consult it and use some of its contents when creating my own TM which is based on the source text that I translated for the client.


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RNAtranslator  Identity Verified
Local time: 21:55
English to Spanish
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You are the owner of the alignment; nothing more and nothing less Sep 1, 2008

The client is the owner of the source text; you can not use it without its permission. The source text is part of the TM so, you can not use it without its permission.

If you sign a contract transferring to the client the copyright of the translation, then, since the day they pay you, the translated text is not yours anymore; it belongs to the client. And it is part of the TM. So, the same as before.

Yes, you made the TM, but the source, and sometimes the target text does not belong to you; you can not use it without permission.

But, and this is very important, you are the author and the owner of the alignment of source and target segments. Thus, it is your right to refuse providing the client your alignment of source and target segments, that is, the TM.

The source and sometimes the target text belongs to the client. The alignment belongs to you. This means that an agreement must exist to do anything but to destroy the TM after the work is finished.

But I can't see how the client could prove in a law court that you are using that TM to translate other texts. A very different case would be if you share that TM with other people; you could be sued for sure, and in my opinion, in this case it would be an unethical behaviour.


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Katalin Horváth McClure  Identity Verified
United States
Local time: 15:55
Member (2002)
English to Hungarian
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Work for hire vs. copyright and other rights Sep 1, 2008

Most freelance or in-house translators do their job as WFH (work for hire), unless specified otherwise in their contract.
This means they have no copyright, no ownership, no intellectual property rights whatsoever regarding the translation they have done. Let it be the cleaned translation, or the translation sentence by sentence in a database (TM).

See Wikipedia, for example:
A work made for hire (sometimes abbreviated as work for hire and WFH) is an exception to the general rule that the person who actually creates a work is the legally-recognized author of that work. According to copyright law in the United States and certain other copyright jurisdictions, if a work is "made for hire", the employer—not the employee—is considered the legal author. In some countries, this is known as corporate authorship. The incorporated entity serving as an employer may be a corporation, an organization, or an individual.

http://en.wikipedia.org/wiki/Work_for_hire

Another good explanation, that is specific to translations can be found here. I picked out the parts that concern us, you can read the whole thing here:
http://www.copylaw.com/new_articles/wfh.html

What is a Work for Hire?
...
With a work for hire, the hiring party steps into the shoes of the creator and becomes the author of the work for copyright purposes. With a work for hire, all of the attributes of copyright ownership -- including credit and control -- vest in the hiring party, not the creator.

Important! There are only two situations in which a work for hire can exist. They are: (1) a work created by an "independent contractor," and a (2) "work prepared by an employee" within the scope of her employment.

A. Works Created by Independent Contractors

For a work created by an independent contractor (or freelancer) to qualify as a work for hire, three specific conditions found in the Copyright Act must be meet:
...

3. the work must fall within at least one of the following nine narrow statutory categories of commissioned works list in the Copyright Act:

(1) a translation, ... (9)...


[Edited at 2008-09-01 19:59]


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Charlie Bavington  Identity Verified
Local time: 20:55
French to English
I'm not sure there is an answer Sep 1, 2008

It seems that opinion may differ about the status of TMs, and it undoubtedly also depends what country you're in.

I am starting from the assumption that a TM is a database.

This article from the UK says quite simply - databases are not protected by copyright:
http://www.iti.org.uk/uploadedFiles/articles/Copyright.pdf

It's a pretty good article, thought-provoking anyway, especially if you're in the UK. I guess the broader principles are more or less universal

More generally on the subject of databases, not TMs specifically:
http://www.esa.int/esaMI/Intellectual_Property_Rights/SEM2M2M26WD_0.html
which makes the distinction between creative and non-creative, as does
http://www.bitlaw.com/copyright/database.html
which also mentions compilations, with specific reference to the US.
Might be worth pointing out that "creative" refers to the structure or organisation of the database, not the content. The software developers have IP of course, but all we do is populate it....

As a TM is just a bunch of columns.....

The ITI article would suggest to me that while an entire text has copyright, little bits of it may not. I think it's fair to say that Viktoria is not the only one wondering where that leaves the copyright/IP status of TMs

Moving on, let us not forget that the M in TM = memory.
And let us also not forget that many people do not use TMs at all.
Some of those people, and indeed those of us who does use CAT, may be able to remember previous translations without the computer's help.
Or indeed just quite naturally come up with the same translation again for a given segment - after all, how many ways are there to say "Press 'OK' to continue"?

So, I wonder, with regard to those questions, what if I could just "remember" a previous translation, or there's only really one sensible/conventional way to phrase something - why should I not use those "segments" with various clients, intentionally or unintentionally? Why is there any difference between my using a TM, or my own memory in my own brain, or Google desktop to find a previous translation not in a TM. They are all just my resources, aren't they?
So:
- Do you use client A's TMs on jobs given to you by client B?
I've done work on ITIL for various clients. These procedures have standard names, and the descriptions are pretty standard. It seems pretty pointless to do the research over again from scratch when I'm gonna end up with the same result. So yeah, I've re-used my work for different customers, same as I would have done if I had a photographic memory of every job I ever did. This is at the segment level, rather than for entire TMs.

- Have you ever added a copyright statement to a TM/TDB (that is, you reserve your copyright indefinitely and grant permission to the client to use it)?
No.

- Have you ever created a TM for client B that contained TUs from client A's TM (whether those TUs were copied as is or modified to suit client B's needs)?
Not as such, altho as you could guess from my ITIL comment, I have some TMs with some pretty similar stuff in.

Do you believe you have the right to indefinitely use the TM you created for a client, even on jobs that have nothing to do with that client?
A TM is tool to help me remember stuff. It is a substitute for my own fragile brain, it has no life of its own, as far as I'm concerned. It's a resource. So yes, of course I do.


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Luis Arri Cibils  Identity Verified
Local time: 14:55
Member (2003)
English to Spanish
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The reverse is true Sep 1, 2008

Katalin Horvath McClure wrote:

Most freelance or in-house translators do their job as WFH (work for hire), unless specified otherwise in their contract.


Freelancers' work IS NOT for hire, unless it is specified so in the contract. See the following from the U.S. Copyright Office, particularly the last sentence:

Determining Whether aWork Is Made for Hire
Whether or not a particular work is made for hire is determined by the relationship between the parties. This determination may be difficult, because the statutory definition of a work made for hire is complex and not always easily applied. That definition was the focus of a 1989 Supreme Court decision (Community for Creative Non-Violence v. Reid, 490 U.S. 730 [1989]). The court held that to determine whether a work is made for hire, one must first ascertain whether the work was prepared by (1) an employee or (2) an independent contractor.
If a work is created by an employee, part 1 of the statutory definition applies, and generally the work would be considered a work made for hire. IMPORTANT: The term “employee” here is not really the same as the common understanding of the term; for copyright purposes, it means an employee under the general common law of agency. This is explained in further detail below. Please read about this at “Employer-Employee Relationship Under Agency Law.”
If a work is created by an independent contractor (that is, someone who is not an employee under the general common law of agency), then the work is a specially ordered or commissioned work, and part 2 of the statutory definition applies. Such a work can be a work made for hire only if both of the following conditions are met: (1) it comes within one of the nine categories of works listed in part 2 of the definition and (2) there is a written agreement between the parties specifying that the work is a work made for hire.
http://www.copyright.gov/circs/circ9.html#determining


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xxxJPW  Identity Verified
Local time: 20:55
Spanish to English
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ITI terms and conditions Sep 1, 2008

Clause 14 of the ITI standard T&Cs have this to say:

"Where a translation is to be incorporated into a translation memory system or any other corpus the translator shall license use of the translation for this purpose for an agreed fee..."


The accompanying notes go on to state:

"Re-use of a translation by someone else as a result of it being incoporated into a translation memory or similar system is an infringement of your copyright if it has not been assigned or this use has not been licensed. The value of any such use is again a commercial decision and the fee must be agreed between the parties in advance."


Now for the really interesting bit:

"Incorporation of a client's original source language text into a translation memory may also infringe copyright, so assignment,licence or permission should therefore also be obtained in advance."

- the emphasis was added by me, by the way.

I think it boils down to what you have stipulated in your terms of business, assuming you have a set written down. Interesting point, and it seems, still a very moot one.

And of course, will vary from jurisdiction to jurisdiction.

The article in Charlie's posting looks interesting, so I will read it later, but it got me wondering:

Has there ever been a court case involving specifically translation (or TM ownership) and disputed copyright?


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ViktoriaG  Identity Verified
Canada
Local time: 15:55
English to French
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TOPIC STARTER
Observations so far Sep 1, 2008

Other than the regional aspect of the question (i.e., laws and regulations may differ from country to country), the only thing I am able to conclude so far is that TMs as such are not generally covered by copyright law. This is a bit scary!

There are discussions going on at the moment on this site about creating a huge TM database that would be available to all who are willing to pay for its use. The proponent of the idea seems to suggest that translators contribute their TMs (whether he expects them to obtain permission from their clients is unclear and irrelevant to this thread). This means that people are thinking of putting TMs online, and there are already some companies who sell similar online resources (e.g., Logoport). The subject of this thread preoccupies me for several reasons, one of which is the following. If I do not hold the copyright of the TM I created for a client and that client decides to put it online and let people use that content for a fee, am I not cheated out of my intellectual property in a way? If there are more and more people looking to make money from TMs, isn't it likely that most of those TMs will come from translators who have worked their butts off to create them? In other words, wouldn't those companies be selling my work and gain a constant stream of revenue from it while I don't make a penny off of it anymore? In this case, wouldn't it be more fair if I held the copyright, which would mean that I would get to reuse such TMs myself and, if possible, even make money with it? I mean, if one of my clients shared my TM for a fee, it would come down to them being paid for my effort. This doesn't comfort me.

The other issue I have is that most TMs wouldn't exist if they weren't based on somebody else's copyright-protected material. So, I cannot create a TM that is entirely mine.

Another issue: if you read copyright acts, you will see that the TM and the content of the TM are two separate copyrightable materials. For example, if you buy a Madonna CD, you are buying the right to use not one but several copyrighted materials, which usually belong to different copyright holders. When you buy that CD, you are buying the right to use Madonna's music, but you are also buying the right to use and own the physical CD. So, we are really clueless at this stage, because we haven't even defined what a TM is. According to some, it is a database. According to others, it is text. Then, it may also be a file. To some, it is a bilingual dictionary. These are all different types of copyrighted material.

I tend to disagree with what RNAtranslator says. To me, a TM is not simply an alignment. I, as a translator, didn't simply take a source text and an existing target text and then aligned them. I created the translation, without which the TM could not have possibly existed. Therefore, the TM as a whole is my own creation, not just its formatting as a TM. The fact that half of it is material the copyright of which doesn't belong to me is a different matter.

Another issue I am having touches upon some of what Charlie says. Can a sentence be copyrighted? Also, if a TM is published as a database, surely nobody can say that the copyrighted material itself is published. If you have to search for segments, there is no way you can display the source or the target text in its entirety, or even chunks of it, which means that the copyrighted material itself is not being published. I don't think separate sentences can be copyrighted - I just read somewhere that even according to the Berne convention, catchphrases and such cannot be copyright-protected. Or am I wrong? Also, as Charlie says, if I remember having translated something weeks ago and I come across a similar sentence in another job for a different client, and even perhaps without realizing it, I use the translation I used weeks ago on the first client's job, can anybody at all challenge that in a court of law? Is it even unethical? I mean, if a have the segment "10 oranges" to translate, and I have a TM from a different client which contains the segment "9 oranges", and I reuse that segment in my current translation, do you really think that I could be sued for that? My client doesn't own a copyright to the segment "10 oranges" - or does he? If yes, then that would mean that it is barely legal to use any CAT tool, or at least, that you hardly gain any productivity from the use of a CAT tool, because you are not legally allowed to reuse older content from a different TM, which is the main sales argument of all CAT tools.

Thanks for all the links some of you provided. I am searching on my own as well, and will post if I find anything interesting.

Keep them coming!

[Edited at 2008-09-01 22:17]


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Heinrich Pesch  Identity Verified
Finland
Local time: 22:55
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Finnish to German
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Never mind Sep 1, 2008

You can keep all your tms in one big tm but you will not come across such a case that any significant information would pass across different assignments when applying this tm. No-one has any property rights on a language, and those translation units are only language. This discussion is highly theoretical.
If a translation unit from client A fits into an assignment of client B, would that mean that client B has used information that is property of client A? Of course not. They have never had any contact, only use the same language.
Regards
Heinrich


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KSL Berlin  Identity Verified
Portugal
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Not quite true.... Sep 1, 2008

Heinrich Pesch wrote:
If a translation unit from client A fits into an assignment of client B, would that mean that client B has used information that is property of client A? Of course not. They have never had any contact, only use the same language.


I've noticed that contract boilerplate gets recycled a lot, and I've also noticed that suppliers of a certain large German company noted for the magnitude of its bribery scandal have a tendency to swipe huge portions of that big company's rather idiomatic contract language. But other than such rare exceptions, you are right. I keep eight years worth of translation work in one TM and use it as a massive personal concordance. Since the tool I prefer (DVX) allows me to tag these segments, terminology, etc. with customer and subject area codes to avoid unfortunate mixups (using Microsoft terms for an Apple job, for example), there's no problem here.


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Textklick  Identity Verified
Local time: 20:55
German to English
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Can a sentence be copyrighted? Sep 1, 2008

Charlie wrote:

As a TM is just a bunch of columns.....

It is a substitute for my own fragile brain, it has no life of its own, as far as I'm concerned. It's a resource. So yes, of course I do.


Concur, old chap!

Viktoria wrote:

There are discussions going on at the moment on this site about creating a huge TM database that would be available to all who are willing to pay for its use.



Thanks.

I missed that. Could you be so kind as to give the the URL please?

Heinrich wrote:

If a translation unit from client A fits into an assignment of client B, would that mean that client B has used information that is property of client A? Of course not. They have never had any contact, only use the same language.



Agree.

And there is the question of style - I enjoy being able to rewrite what the computer has found for me. It is also a question of 'cricket', as we say.

Cheers





[Edited at 2008-09-01 23:35]


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xxxNMR
France
Local time: 21:55
French to Dutch
+ ...
My opinion Sep 1, 2008

Under French law, the translator has no copyright on technical translations. The case has been brought into court in the seventies by one of my teachers and concerned technical manuals and delivery of a floppy disk. If I remember well, the translator didn't want to give the IT support to the client because next time the files could be re-used in a cheaper way, so she claimed the copyright and a huge pack of money to sell the disk to the client, and the client stated that the source text and the translation belonged to him whatever the magnetic support. The court stated that technical translation was only a transposition of a text in another language, just as printing was a multiplication of a text by a photocopy or printing machine, a service with no creative added value (so no copyright) on the contrary of an "artistic" litterature translation. [I suppose that it can be discussed if creation of a TM is a supplementary service. I don't think so, but one can state that it takes some time, or that special software is needed].

There is also the proprietary right, but from the moment the translator has been paid, the client "bought" the translation and is the owner of what he bought.

So if the rights of the source texts and of the translation belong to the client, it seems to me that the TM also belongs to the client, as it is a simple re-arrangement of the client's sentences (don't know how this is in Trados, but in Wordfast it is even plain text!). In most cases however the client isn't interested in the TM, and giving the TM to an agency or not is just a convenience. But for reasons stated above, the TM you will be giving should only contain segments which are coming from translations for the same client.

The copyright/proprietary right issue depends on national laws, of course. But there is something more general, worldwidely accepted: the source material and the translated texts should be kept confidential. This is another and very important reason why you can only give to your agency a TM which contains the segments you used for the same client. And why you cannot publish the TMs.

For me this was the main reason to create TMs on an end-client basis. This has another advantage: in some job sectors terminology is highly client-dependent (in the automotive industry, the different brands have different words for the same thing, in cosmetics too), and thus the context search gives you in the first place the terminology of this particular end client.

However there is a problem if I receive the source texts for the same end client but from different agencies (or, in one case, directly from the end client and also from an agency). It happens all the time: clients go shopping and I work in a "small" language, so I often receive the same kind of texts from different sources. And in two source languages! Therefore, for the sake of convenience, I mix up the different source clients and the two source languages in one end-client TM. The TM is my extended memory, I simply cannot manage four or five TMs for each end client, I would have hundreds of them. So if necessary I change the text a bit, and in each case I always try to make better translations and I like rewriting, so I don't have the impression to re-use old material which belongs to someone else. And besides, we could have been inspired by somthing published on Internet.

As for delivery of the TM, my clients generally don't ask for them (end clients even don't know what it is). And if they do, I can always create an ad hoc TM only for the files they gave me this time.

Hope this helps, I am not a lawyer


[Modifié le 2008-09-02 00:27]


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ViktoriaG  Identity Verified
Canada
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Of course, here you go Sep 2, 2008

Textklick wrote:

I missed that. Could you be so kind as to give the the URL please?



http://www.proz.com/forum/cat_tools_technical_help/113560-the_global_tm_i_want.html

There are now at least three offsprings of that thread - it seems that despite some of the nitpicking, the thread got a few people thinking.


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