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Can I prevent the publication of my translation if I don't get paid?
Thread poster: Christine Tochtermann
Christine Tochtermann  Identity Verified
Local time: 18:33
Member
English to German
+ ...
Dec 9, 2003

Back in July I translated a website for a UK company, via a translation agency in the UK. I am still chasing the agency for payment and am now planning to take legal action if they don't pay by the end of this week. My translation has been on the company's website since August - does anybody know if I could prevent the translation from being used on the website, i.e. can I demand my goods (translation) back that I have not been paid for? It doesn't mention anything about copyright being transferred to the agency in their purchase order, of course I should have worked out my Terms & Conditions by now covering these issues ... As I have recently found out that the agency has a very bad reputation with regard to payment to the point of not complying with court judgments, it would be useful to have some additional leverage.

Has anybody had a similar experience in the UK, would really appreciate your comments.


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Yongmei Liu  Identity Verified
United States
Local time: 10:33
English to Chinese
+ ...
Mechanic's Lien Dec 9, 2003

It is conceivable that a mechanic's lien may be placed on your work product, namely the translated website. Consult a lawyer on this.

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Nenija Hasanic
Bosnia and Herzegovina
Local time: 19:33
English to Bosnian
+ ...
Yes you can! Dec 9, 2003

Since you didn't got the money for your work, there is no business relationship (it is still YOUR work); ergo ;o) you should inform the end client that you still hold the copyright untill fully paied by agency!

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Luca Tutino  Identity Verified
Italy
Local time: 19:33
Member (2002)
English to Italian
+ ...
Yes - According to international copyright treaties and conventions Dec 9, 2003

I am quoting just what was commonsense in my Editorial Department @ a multinational Company. We had a large legal department ready to help us, but we kwnew that, if we happened to publish a translation without the translator consent, e.g. when we could not find the translator's address,we where exposing ourselves to serious trouble.

The copyright stays with you, and nobody can use the translation without your explicit consent. In presence of a service PO or similar, a payment transaction is usually deemed as a proof of copyright transaction.

"Copyright laws grant the creator the exclusive right to reproduce, prepare derivative works, distribute, perform and display the work publicly. Exclusive means only the creator of such work, not anybody who has access to it and decides to grab it."

"Copyright protection begins when any of the above described work is actually created and fixed in a tangible form."

Copyright infringement is a serious crime in most civilized countries these days, and you should take action in order to protect your rights!


[Edited at 2003-12-09 23:34]


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sylvie malich
Germany
Local time: 19:33
German to English
Quite right, Tayfun Dec 10, 2003

Tayfun Torunoglu wrote:

It is quite different.


I asked the same question in a forum a few months ago http://www.proz.com/topic/14404 and was made to realize that the contractor owns the copyright automatically because they are the author(s) and have contracted you to translate it.
=> HOWEVER, if you presented them with a General Terms and Conditions clearly stating that you own the copyright until it's paid for only, then and only then do you have the right to bar publication.

Live and learn. The guy still hasn't paid, and his website still displays the fruits of my hard labour (done over a weekend in 40°C heat... sob).

sylvie

[Edited at 2003-12-10 09:09]


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xxxMarc P  Identity Verified
Local time: 19:33
German to English
+ ...
Copyright ownership Dec 10, 2003

I asked the same question in a forum a few months ago http://www.proz.com/topic/14404 and was made to realize that the contractor owns the copyright automatically because they are the author(s) and have contracted you to translate it.


This is from an article by Corinne Blesius published in the ITI Bulletin:

"What happens if an agency commissions you?

"Subject to contract and regardless of contract, you will be the first owner of copyright. You may then give that copyright away, but you are still the owner of the copyright in the translation."

I understand that to mean that in the absence of any contractual terms in which the translator assigns copyright to the contracting party (e.g. a translation agency), the translator automatically owns the copyright, and not the agency.

Marc


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sylvie malich
Germany
Local time: 19:33
German to English
Marc Dec 10, 2003

MarcPrior wrote:

"Subject to contract and regardless of contract, you will be the first owner of copyright. You may then give that copyright away, but you are still the owner of the copyright in the translation."

Marc


Quoting "invguy" on the previous forum:
"According to the general understanding of copyright, it arises *with the creation* of the work, and its existence bears no relevance on whether the work has been paid for, or not.

The only exceptions are when the work is created under the so-called 'work for hire' agreement where the copyright belongs to the employer by default, or when copyright ownership is explicitly dealt with in a contract signed prior to the creation."

From the WIPO:
The creator of a work (this is not the translator, but the original author) can prohibit or authorize:

+ ...its translation into other languages, or its adaptation, such as a novel into a screenplay."



The interpretation from the article you quoted is 180° from what I've read about the new copyright laws.

It would interest me very much as it would be a chance to maybe get my payment from this (censored).

Was this article by any chance written after the new copyright laws came into effect?


[Edited at 2003-12-10 15:00]


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Roomy Naqvy  Identity Verified
India
Local time: 23:03
English to Hindi
+ ...
Action possible Dec 10, 2003

Christine Tochtermann wrote:

Back in July I translated a website for a UK company, via a translation agency in the UK. I am still chasing the agency for payment and am now planning to take legal action if they don't pay by the end of this week. My translation has been on the company's website since August - does anybody know if I could prevent the translation from being used on the website, i.e. can I demand my goods (translation) back that I have not been paid for? It doesn't mention anything about copyright being transferred to the agency in their purchase order, of course I should have worked out my Terms & Conditions by now covering these issues ... As I have recently found out that the agency has a very bad reputation with regard to payment to the point of not complying with court judgments, it would be useful to have some additional leverage.

Has anybody had a similar experience in the UK, would really appreciate your comments.





Christine, I'll write you in private.


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xxxMarc P  Identity Verified
Local time: 19:33
German to English
+ ...
Copyright ownership Dec 10, 2003

Sylvie,

I'm by no means an expert on this and I have to admit that it has never really been an issue for me. The author of this article, though, appears to know what she's talking about. It's in the very latest issue (November-December 2003) of the Bulletin, the ITI's journal.

My "gut feeling", if you like, is that copyright automatically belongs to the translator, and also remains with him or her, but the contract (explicit or implied) licenses the customer to use the text. Unless, of course, copyright has explicitly been given away by contract.

By analogy, photographers do the same; you can commission a photographer to shoot your wedding, for example, but he or she will normally retain the negatives, and you will not normally be allowed to make copies of the prints you decide to buy. At least, those are the arrangements I'm familiar with. This analogy is just for illustration: I'm not suggesting that the two situations are legally comparable.

Also, I'm talking about a typical translator/agency relationship here, not an employee-employer relationship. That's quite different. An employer normally automatically acquires any rights to any invention of an employee; I know that to be a basic principle of UK employment law and I presume it's similar in other jurisdictions.

Copyright is a very complex area, and there are other rights such as authorship and moral rights which are related but quite distinct. I can see no mention in the article of using copyright to enforce payment; the emphasis is upon such things as the right to be mentioned as author.

I've never heard of the "work to hire" arrangement under UK or German law, only in relation to American law.

Do you have any more information on these new copyright laws? What jurisdiction are they in?

Marc


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Diana Gould  Identity Verified
Australia
Local time: 04:33
French to English
web site copyright Dec 10, 2003

Hi

Unless your contract with the company says the contrary, you will be the owner of copyright in the material you have translated. Therefore, they need your permission to use it, While the right to publish might be implicit in the contract, if they haven't paid for it, they couldn't rely on that argument.

Get a laywer in the UK to do a letter of demand for you.
Good luck
Diana


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ttagir  Identity Verified
Local time: 20:33
Member (2002)
English to Russian
+ ...
Sometimes it helps Dec 11, 2003

if you place your copyright mark at the bottom of the code of web-pages, after the string denoting the end of a document. Of course, they can delete such a mark when forward the result to their client, but you thus preserve your rights to your result, since, formally, such a deleting cannot be realized without a prior written consent of a person who placed this mark:).
In word documents, the same can be done by placing copyright mark in either doc's info, or at the footer of pages (you can choose "paper" or write color for copyright marks).
Note also that Transator Charter says that a translator possesses author rights to the result of his/her work.
Yours,
Tagir.


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Samuel Murray  Identity Verified
Netherlands
Local time: 19:33
Member (2006)
English to Afrikaans
+ ...
No pay doesn't mean no contract Dec 12, 2003

Nenija Hasanic wrote:
Since you didn't got the money for your work, there is no business relationship...


I disagree, but I'd love to hear the opinions of other translators from different countries. IMHO the stipulations of the contract between you and the client remains valid regardless of whether there has been breach of contract.

This is an ethical dilemma, I know, but the fact that the other party doesn't hold up to his side of the agreement doesn't give you the right to neglect your side at your whimsey.

I do agree with the principle of "no pay, no right to publish", though.


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sylver  Identity Verified
Local time: 01:33
English to French
No money, no .... Dec 12, 2003

Samuel Murray-Smit wrote:

Nenija Hasanic wrote:
Since you didn't got the money for your work, there is no business relationship...


I disagree, but I'd love to hear the opinions of other translators from different countries. IMHO the stipulations of the contract between you and the client remains valid regardless of whether there has been breach of contract.

This is an ethical dilemma, I know, but the fact that the other party doesn't hold up to his side of the agreement doesn't give you the right to neglect your side at your whimsey.

I do agree with the principle of "no pay, no right to publish", though.


IMHO, all clauses and securities granted to a customer are part of the service you deliver. Unless payement is made, he does not hold any valid claim to that service or any part thereof.

Take the following example. You get on a bus and do not to pay your ticket. Now, the bus has an accident and you are injuried. Will you get compensation? Me think not.


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Hilary Davies Shelby
United States
Local time: 12:33
German to English
Disagree with the bus analogy Dec 13, 2003

Unfortunately, whether or not you paid to be on the bus has nothing to do with your right to compensation in case of an accident.

Yes, you can go after this company for non-payment (and you should!), but I dont think that you can proactively prevent them from publishing something they already have in their possession...

I could be wrong tho...good luck!!!


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sylver  Identity Verified
Local time: 01:33
English to French
I must have gotten the wrong bus ;-) Dec 13, 2003

Hilary Davies wrote:

Unfortunately, whether or not you paid to be on the bus has nothing to do with your right to compensation in case of an accident.

Yes, you can go after this company for non-payment (and you should!), but I dont think that you can proactively prevent them from publishing something they already have in their possession...

I could be wrong tho...good luck!!!


It was an attempt to a "demonstration par l'absurde", but maybe I didn't blow it up enough.

Let's say that you want to send a box from Le Havre to New York, and that you somehow manage to load it on board without paying. (for argument's sake )

Unfortunately the boat sinks. Would you be able to get compensation ???

I don't know what the law says about that, but I know that logically, it's nonsense. Unless the service is paid for, you have no obligation to deliver any part of that service, and if you did, you should be entitled to get it back, with compensation for the time spent, to cap it.


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