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Human translators = zombies ?
Thread poster: Sebastián M
Sebastián M
Local time: 18:44
English to Spanish
Apr 25, 2013

Hello. During my short career as a professional translator I've come across more than once with Agreements that contain clauses like this:

"Consultant is performing work, including the Services, for the Company hereunder at the Company's request. Consultant hereby assigns and transfers to the Company all of Consultant's right, tittle and interest in and to all work performed by Consultant for the Company, regardless of whether all work is described in an exhibit or supplement hereto, including, but not limited to Inventions created or developed by Consultant. This section shall survive any termination of this agreement."

What is this? Are they taking away the possibility that translators can create or develop something? What is worst, he/she can't be able to create nothing for LIFE.

The problem is that independent contractors sign this type of documents almost in all the projects they engage in. So, in the near future they will have almost zero possibility to create nothing in any field because it will be somewhat related to the work they have received from companies.

What are your thoughts?

[Edited at 2013-04-25 15:19 GMT]

[Edited at 2013-04-25 15:19 GMT]


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xxxTimWindhof  Identity Verified
United States
Local time: 18:44
English to German
consultant vs translator Apr 25, 2013

I have seen this clause before. From my legal background I would say that already the term "consultant" implies that this sort of contract is not aimed at and thus should not be signed by any professional translator.

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Sheila Wilson  Identity Verified
Spain
Local time: 23:44
Member (2007)
English
+ ...
Example please Apr 25, 2013

boro wrote:
What is this? Are they taking away the possibility that translators can create or develop something? What is worst, he/she can't be able to create nothing for LIFE.

The problem is that independent contractors sign this type of documents almost in all the projects they engage in. So, in the near future they will have almost zero possibility to create nothing in any field because it will be somewhat related to the work they have received from companies.


I don't really understand what type of creations you're talking about here: would it be possible to give a hypothetical example of something that you believe you're being prevented from creating?


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Trudy Peters  Identity Verified
United States
Local time: 18:44
German to English
+ ...
Agree with Tim Apr 25, 2013

This is not a contract for freelance translators, and I would never sign such a contract.

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Sebastián M
Local time: 18:44
English to Spanish
TOPIC STARTER
An example... Apr 25, 2013

Sheila Wilson wrote:

boro wrote:
What is this? Are they taking away the possibility that translators can create or develop something? What is worst, he/she can't be able to create nothing for LIFE.

The problem is that independent contractors sign this type of documents almost in all the projects they engage in. So, in the near future they will have almost zero possibility to create nothing in any field because it will be somewhat related to the work they have received from companies.


I don't really understand what type of creations you're talking about here: would it be possible to give a hypothetical example of something that you believe you're being prevented from creating?


For instance, let's say they give you a translation about dogs and in the future you wanna create a story or a video about dogs, they will be able to prosecute you because your creation will be related to the translation you did for them.

This clause was taken from a company which is currently asking for translators...


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LEXpert  Identity Verified
United States
Local time: 17:44
Member (2008)
Croatian to English
+ ...
"Zombie" (survivability) clause Apr 25, 2013

Therein lies the rub. I've seen many contracts that are sneakily designed to essentially bind the service provider (translator) for life, wherein non-compete, liability or other clauses are stated in later text to (presumably permanently) "survive termination of the contract".

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Sheila Wilson  Identity Verified
Spain
Local time: 23:44
Member (2007)
English
+ ...
It would be plagiarism, anyway, if it was published Apr 25, 2013

boro wrote:
For instance, let's say they give you a translation about dogs and in the future you wanna create a story or a video about dogs, they will be able to prosecute you because your creation will be related to the translation you did for them.

I'm no lawyer but I don't see that it extends that far. Sure, if you were to use the same text, or a very similar text, you would be open to claims, but then you would be open to claims of plagiarism if you had copied a published text that you'd had nothing to do with professionally. I would think personally that if your text is sufficiently different to one of your translations to pass anti-plagiarism tests, then it wouldn't be covered by this clause. The aim is to stop you profiting from their work (apart from your own translation payment), and that seems reasonable to me. If I translated a patent for a machine, I wouldn't expect to have the right to go and make one and start selling it.

But I don't know if others agree. I've never had to sign a contract with this clause (in fact, I rarely sign contracts or even receive POs - I have very low-maintenance clients on the whole!).


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Nicole Schnell  Identity Verified
United States
Local time: 15:44
English to German
+ ...
It does makes sense Apr 25, 2013

In particular if the translator has developed a new slogan or a new, localized product name. Technically, the translator can register the copyrights for this kind of work/product.

A friend of mine back in Germany invented a terrific product name and had it copyrighted, just for fun. Unfortunately a highly renowned German car manufacturer (the ones with the star as a logo) came up with the same name, just to find out that it was already taken. They invited the young man to a cool vacation on a yacht, offered him a significant amount of money and a brand new car until he finally sold the rights to them.


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Astrid Pustolla  Identity Verified
Local time: 00:44
Member (2012)
English to German
+ ...
As I see it, Apr 25, 2013

this only refers to work (i.e. translations) you do for the company that you signed this agreement with. They want to use your translation for internal purposes which might involve further publishing, so they are asking you to permanently transfer the rights. The term "consultant" is certainly unfortunate, though.
I have seen clauses like this in German employment contracts for regular employment as well, it does not seem uncommon to me.


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LingoTrust
Local time: 18:44
This isn't as bad as you may think Apr 25, 2013

I've seen similar clauses in freelancing contracts. All they mean is that any work you do for that company, they hold all the rights to it and can use it any way they want, now and in the future. You, however, cannot use the material for your own purposes. It's just a way for them to maintain all rights to their property, even if you are the one that translated it.

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Katalin Horváth McClure  Identity Verified
United States
Local time: 18:44
Member (2002)
English to Hungarian
+ ...
Work for hire Apr 26, 2013

The whole section looks to me as a long legalese description of "work for hire".
Perhaps it was written in a country where "work for hire" is not used regularly?

[Edited at 2013-04-26 01:07 GMT]


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Eleftherios Kritikakis  Identity Verified
United States
Local time: 17:44
Member (2003)
Greek to English
+ ...
Not busy? Apr 26, 2013

"...including, but not limited to Inventions created or developed by Consultant"

a) Such articles mean that the agency (couple of kids, three desks and two PCs) downloaded and printed a general agreement which also includes articles on rice picking for farmer hands on temp visas. Almost nobody pays attention to such things anymore, because experienced translators work with specific clients that they already know.
However, if you have the time to read such agreements, it means you' re not busy enough.

If a contract says "consultant must babysit the agency owner's teenagers", it doesn't mean I have to do it, if I accidentally sign it. I can throw the contract out the window anytime I want (termination) or take the contract to Court (and the Better Business Bureau) and have it cancelled because it's unreasonable. Or I can expect that a couple of used bicycle owners that run the little agency will sue me on some vague grounds.
Now, if there's a big agency involved, do you think they'll go to court when the translation is not even their own product, but it belongs to their end client, and when taking a case to court would expose the agreement, including the translator's fee, to the end client?

There is a reason agencies don't take translators to courts, and agencies do not go public (not listed in the stock market): such things would expose their markup (200-300%) to translators, who would then be furious!

b) The chances that a translator will create an invention are remote. But if you create something new while translating a new patent for a colonoscopy device, make sure you register it first. If you don't notice it, you would have never noticed it anyway. 99.9% of material that busy translators translate, is non-interesting boring material, and even the most exciting inventions are already invented before the manuals are supposed to be translated.
I would be very surprised if translators, that have been reduced by the agencies to automatons, ever express ANY creativity whatsoever in order to come up with something as simple as this: "an invention to increase my rates by 10%".


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neilmac  Identity Verified
Spain
Local time: 00:44
Spanish to English
+ ...
Caveat subscriptorem Apr 26, 2013

Contract schmontract. The few times I've signed any type of contract (including when I got married) I've been dragged into it kicking and screaming. A far as I'm concerned "there ain't no sanity clause"....

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xxxS P Willcock  Identity Verified
Local time: 01:44
German to English
+ ...
Unfortunately? Apr 26, 2013

Nicole Schnell wrote:
A friend of mine back in Germany invented a terrific product name and had it copyrighted, just for fun. Unfortunately a highly renowned German car manufacturer (the ones with the star as a logo) came up with the same name, just to find out that it was already taken. They invited the young man to a cool vacation on a yacht, offered him a significant amount of money and a brand new car until he finally sold the rights to them.
Unfortunate for the manufacturer perhaps, but for your friend I would say that sounds very fortunate indeed.


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Sebastián M
Local time: 18:44
English to Spanish
TOPIC STARTER
Not busy, what about you? Apr 26, 2013

Eleftherios Kritikakis wrote:

"However, if you have the time to read such agreements, it means you' re not busy enough.

The chances that a translator will create an invention are remote".



a) You have time to write long replies in this forum, so you aren't busy enough

b) If you aren't creative I'm very sorry but please do not generalize

[Edited at 2013-04-26 13:46 GMT]


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