Pages in topic:   [1 2] >
Translation Memory (TM) is the translator's Intellectual Property (IP)
Thread poster: Bernhard Sulzer

Bernhard Sulzer  Identity Verified
United States
Local time: 04:17
English to German
+ ...
Jul 8, 2015

I recently looked at a ten-year old thread entitled "Who owns the translation memory?"

but it seems new comments don't gather much interest.

I happen to believe that translators need to think more about and discuss the issue and proceed carefully when it comes to letting others use their TM (or letting anyone create a TM from their work). I and others perceive the TM as separate entity from the source and the target text, but it wouldn't exist without the target text because that's the text we create and keep confidential.

Your TM (which includes specific phrases you used/worded for a translation) is something you might use again later, just like you do with all the knowledge that is yours and resides in your brain or in other texts on your computer.

Why would you want others to use your TM, i.e. your suggestions, when they work on completely (although possibly related) different texts; but with your TM? And just because someone CAN do something without your knowledge or permission doesn't mean it’s morally right or legal.



If at all, it should be made very clear (BY YOU) who is permitted to use your TM or how this use should be limited and what such use should be based on - a contract with your client (an agency) and/or the end client (be he/she your direct client or not); a few other colleagues during a project, etc.

Why would you want anyone else to use your TM for whatever and whenever they like, just because they got their hands on it for free or created it, without your knowledge and without a contract prohibiting it, from a source and target text you worked on/submitted?

Here's an article I found that addresses some of these issues:
http://www.mt-archive.info/05/Aslib-2009-Smith.pdf

And here's that thread I mentioned from 2004 which also discusses some of the possible problems surrounding the issue.
http://www.proz.com/forum/business_issues/65838-who_owns_the_translation_memory.html

[Edited at 2015-07-08 19:56 GMT]

added comma

[Edited at 2015-07-09 01:44 GMT]


 

Chris S  Identity Verified
United Kingdom
Swedish to English
+ ...
I don't understand the issue Jul 8, 2015

We don't retain copyright to our translations in Word so why should a TM be any different?

 

Bernhard Sulzer  Identity Verified
United States
Local time: 04:17
English to German
+ ...
TOPIC STARTER
The issue(s) Jul 8, 2015

Chris S wrote:

We don't retain copyright to our translations in Word so why should a TM be any different?



Before I start explaining here what the issue is, I would ask everyone to at least read the article I linked to above and below.



In short, one issue arising from your comment Chris:

A TM is not the same as the target text that you submit to your client.
While the order in which words and sentences in the target text appear is finite and do matter to bring the points across that the author of the source text had in mind, a TM constitutes a database containing the translator's way of translating certain phrases and words and sentence parts, and the order in which they appear is of no importance.

Ask yourself: what is the purpose of having a TM besides having it as your own data bank for later?
Would you simply give away the knowledge and skill with regard to how you translate certain sentences, phrases, and words, which is contained in the TM? Would you want someone else to use your data banks without permission or work remotely on your computer, accessing any sample texts you might have there? Or would you tell an inexperienced translator how to translate many phrases and sentences of a text he/she is translating, a text which uses similar language, as contained in your TM, and expect a simple pat on your shoulder as a reward? Would you like translation agencies/clients to create a TM from your translation and the source text or ask you for your TM and then to give it away or sell it to anyone they choose in order to assist these individuals with their future projects without having asked you or having entered into an agreement of use, and without having given you any guarantees as to calling on you ever again for work?

You might say yes because you signed an NDA or contract that wasn't written by you. But should you have done that? Or you might say "hold on a second, let me think about that."

Here is the article again that I was referencing above, followed by a short excerpt.

I hope this will clarify the issue further.

http://www.mt-archive.info/05/Aslib-2009-Smith.pdf

To qualify for intellectual property protection, a written work, among other things, has to be
original and of a certain size. Commonplace expressions cannot be protected because by
definition they are not original, while any “work” which is just one sentence long (setting aside
advertising slogans and minimalist poems) will almost never be afforded copyright cover. These
are the main arguments employed to advocate, from a legal viewpoint, that the translator who
creates the TM also owns it. The kind of documents that are translated using TM systems are
not usually composed of language that can be regarded as original, or attributable to a specific
author or entity. For instance, no-one can claim intellectual property rights to phrases such as
“profits have fallen by 12%” or “insert the card in the left-hand slot”. At the same time, the TM
program dissects the source document into segments which, at most, are a sentence long and
therefore are disqualified from copyright protection due to their insignificant size. These
arguments therefore rule out the source document author as owner of the TM in favour of the
translator. The translator's claim to the intellectual property rights is further boosted by the
traditional “sweat of one's brow” argument, whereby the translation memory should be regarded
as belonging to the translator because it is the product of his or her own effort and specialised
knowledge.
This position would also be solidly supported if translation memories could be equated to
databases since in that case what would be protected would not be just the author's creative
effort, but also the investment in time and money made to compile and store the most frequently
used sentences and phrases. Most lawyers specialising in intellectual property who have
studied this issue suggest that the protection provided for databases should also cover
translation memories, since they are a kind of database. EU Directive 96/9/EC defines a
database as follows:

[Edited at 2015-07-08 22:44 GMT]

fixed typo

[Edited at 2015-07-09 02:21 GMT]


 

DanieleH  Identity Verified
Canada
Local time: 04:17
Member (2006)
English to French
+ ...
Much ado about nothing Jul 8, 2015

You deliver a translated text whether to an agency or a direct Client; it takes a few seconds to create an alignment and export it as a .tmx or .xml file. End of story.

Now if you create a TM for a Client that sends regular work by incorporating in it alignments of texts you yourself found on the Net (e.g I do that with prior annual reports of direct Clients) that is a different story that is your own work.

Again the Client can only align from the translations you sent and the originals they provided you.


 

Bernhard Sulzer  Identity Verified
United States
Local time: 04:17
English to German
+ ...
TOPIC STARTER
Would you be willing ...? Jul 8, 2015

DanieleH wrote:

You deliver a translated text whether to an agency or a direct Client; it takes a few seconds to create an alignment and export it as a .tmx or .xml file. End of story.


End of story? Excuse me, did you ask me or the end client if that was okay? (if you're the agency for example)
Or - if it's your work, why would you just give it away to anyone to use later?

DanieleH wrote:
Now if you create a TM for a Client that sends regular work by incorporating in it alignments of texts you yourself found on the Net (e.g I do that with prior annual reports of direct Clients) that is a different story that is your own work.

Again the Client can only align from the translations you sent and the originals they provided you.


Your own work is what you do when you translate whatever it is you translate.

Would you be willing to read more about this issue?

[Edited at 2015-07-08 23:47 GMT]


 

Michael Beijer  Identity Verified
United Kingdom
Local time: 09:17
Member (2009)
Dutch to English
+ ...
Thanks! Jul 8, 2015

Bernhard Sulzer wrote:

I recently looked at a ten-year old thread entitled "Who owns the translation memory?"

but it seems new comments don't gather much interest.

I happen to believe that translators need to think more about and discuss the issue and proceed carefully when it comes to letting others use their TM (or letting anyone create a TM from their work). I and others perceive the TM as separate entity from the source and the target text, but it wouldn't exist without the target text because that's the text we create and keep confidential.

Your TM (which includes specific phrases you used/worded for a translation) is something you might use again later, just like you do with all the knowledge that is yours and resides in your brain or in other texts on your computer.

Why would you want others to use your TM, i.e. your suggestions, when they work on completely (although possibly related) different texts; but with your TM? And just because someone CAN do something without your knowledge or permission doesn't mean it’s morally right or legal.



If at all, it should be made very clear (BY YOU) who is permitted to use your TM or how this use should be limited and what such use should be based on - a contract with your client (an agency) and/or the end client (be he/she your direct client or not); a few other colleagues during a project, etc.

Why would you want anyone else to use your TM for whatever and whenever they like, just because they got their hands on it for free or created it, without your knowledge and without a contract prohibiting it from a source and target text you worked on/submitted?

Here's an article I found that addresses some of these issues:
http://www.mt-archive.info/05/Aslib-2009-Smith.pdf

And here's that thread I mentioned from 2004 which also discusses some of the possible problems surrounding the issue.
http://www.proz.com/forum/business_issues/65838-who_owns_the_translation_memory.html

[Edited at 2015-07-08 19:56 GMT]


Very interesting topic indeed, Bernhard, and thanks for bringing it up again and the link to the PDF by Ross Smith. Am translating at the moment (looks like it's going to be another late night for me!), but will definitely read it carefully and respond tomorrow!




[Edited at 2015-07-08 23:57 GMT]


 

Bernhard Sulzer  Identity Verified
United States
Local time: 04:17
English to German
+ ...
TOPIC STARTER
Scenarios for TM ownership Jul 9, 2015

Some more info here on

different scenarios for document ownership (1 -4 ) and who owns what in these scenarios, as discussed farther down in the paper. It's by the same author as above but goes much more into practical details.
I especially recommend reading scenario 3.

http://www.fit-europe.org/vault/barcelone/Smith.pdf


 

Radian Yazynin  Identity Verified
Local time: 12:17
Member (2004)
English to Russian
+ ...
Just a simple thought Jul 9, 2015

If you buy a book you own it, right? But should you decide to write your own story borrowing parts of that book, for instance the author's specific stylistic devices, separate phrases and even whole paragraphs, this would no doubt be called plagiarism.

 

Chris S  Identity Verified
United Kingdom
Swedish to English
+ ...
They've paid you for the text Jul 9, 2015

And now it's theirs to do with what they please. Makes no difference if it's in a TM. They've paid for it, it's theirs.

 

Samuel Murray  Identity Verified
Netherlands
Local time: 10:17
Member (2006)
English to Afrikaans
+ ...
Some digging Jul 9, 2015

Bernhard Sulzer wrote:
Here's an article I found that addresses some of these issues:
http://www.mt-archive.info/05/Aslib-2009-Smith.pdf


I've done some digging, and there appears to be a history behind Ross Smith's short burst of articles and papers on this issue in the late 2000s.

In October 2007, FIT hosted a conference on intellectual property in the translation world, called the "Technical Seminar on Copyright, Intellextual Property and Translation Tools". At this conference, Ross Smith presented a short paper called "Intellectual Property and CAT: the PwC Experience". In January 2008 he published an article in the Linguist journal, called "Your own memory? As TMs begin to be bought and sold on the open market, Ross Smith asks who actually owns them", saying essentially the same things. The paper mentioned by Bernhard above was presented at the Aslib Translating and the Computer 31 Conference in October 2009, but it says essentially the same things again.

The "bought and sold on the open market" relates to the creation of a TM selling service called TM Marketplace that started at around 2005. Initially, TM Marketplace seems to have focused on licensing TMs that were provided by companies' translation departments (i.e. TMs whose ownership were unambiguous, since both source and target text in their original formats would belong to the same company, and the translator would be an employee at the same company), but by around 2007 they shifted their focus to licensing "aligned TMs", i.e. TMs whose creation involved more than one party, leading to the question "who owns the TM [that is created by the aligner from translations by others]".

TM Marketplace published some white papers to justify their activities, and some of those ideas were taken over by Ross Smith. Essentially, their position is that (a) intellectual property applies only to unified, sizeable works and (b) TMs consist of fragmented (atomised) works and therefore (c) the intellectual property of the original work does not apply to TM, and therefore (d) the TM is a new creation, whose copyright belongs to the person or party who created it.

It is important to note that they don't say that the translator owns the TM "because the translator is the translator", but rather "because the translator created the TM". By their logic (and that is the whole purpose of their logic), anyone who creates a TM from existing content is the "creator" of the TM and therefore the intellectual property holder of it, regardless of whether the owners of the content from which the TM was created gave their consent for its creation.

Should we understand that this is your view also, Bernhard?

One problem with the TM Marketplace/Ross Smith reasoning:

I see some problems with TM Marketplace/Ross Smith's view, and one problem is the fact that created TMs are not created by entering segment content into the TM individually (manually) but by using a copy of [an extensive portion of] the original work. If you create a TM for non-commercial use (and by "non-commercial" I mean that you won't try to sell the TM), then your use of a copy of the original work is fair usage, but if you want to sell that TM, then your use of the original work is not fair usage, but commercial use, and that means that you would have to have had permission from its owner.

So, while I concede that the intellectual property of the TM may belong to the creator of the TM (and not to the owners of the original works), the problem is that you can't exploit that TM commercially unless you have had permission from the owners of the original works, or unless you extracted the individual segments from the original works manually and individually. The fact that you enter the translation one segment at a time, does not make your TM creation "manual", if you use a program (a CAT tool) that automatically segments the original work (or works on a format that is presegmented).

Remember, copyright is not a right to sell/distribute, but a right to prevent selling/distribution. If you create a new work that is based extensively on an existing work for which you did not acquire copyright, then you own the copyright of your new work, and your copyright gives you the right to prevent (or expect the law to help prevent) anyone from selling your work without your permission, but that does not automatically mean that you yourself have a right to sell that work, if during the creation of that work you have infringed upon the copyright of others.

To sum up: a TM can be created in a number of ways, among them (A) by capturing individual segments and their translations individually into a database and (B) by taking an existing copyrighted work and using an automated process to segment it and add those segments (along with their translations) into a database. In both cases, let's assume that the creator of the TM is the intellectual property rights owner of the TM. However, in case #B, if the TM creator did not get permission to exploit the original works commercially, then the TM creator's use of those resources is no longer "fair usage" if he attempts to exploit his created TM commercially.

The next question is, then, whether the agency/client has the right to use the translator's TM or sell it without the permission of the translator (assuming for clarity that the translator assigned copyright of his translation to the client).


[Edited at 2015-07-09 09:08 GMT]


 

Samuel Murray  Identity Verified
Netherlands
Local time: 10:17
Member (2006)
English to Afrikaans
+ ...
@Radian Jul 9, 2015

Radian Yazynin wrote:
If you buy a book you own it, right?


No, I believe we use the word "own" in this discussion specifically in the sense of owning the copyright. If you buy a book, then you own the book itself (i.e the ink and paper), but not the story in the book. This discussion is about who owns the story.


 

Radian Yazynin  Identity Verified
Local time: 12:17
Member (2004)
English to Russian
+ ...
@Samuel Jul 9, 2015

Of course, this is a figurative comparison. I understand counterparts may come to an agreement on such a copyright, and refer themselves to particular laws and regulations. The question is, how to protect the "story" (a TM) from further use by "unauthorized persons" if anybody can easily extract your aligned pairs, split segments, extract phrases, use them in Autosuggest or the like, etc. Those are just words, parts of speech! If so, the only way out would simply be not to share your TMs or to share them without special provisions. N'est-ce pas?

 

Balasubramaniam L.  Identity Verified
India
Local time: 14:47
English to Hindi
+ ...
What the translator adds to a TM Jul 9, 2015

The value that a translator adds to a TM is the order between source and target segments, and it is this order that is of value to others. By juxtaposing a source phrase alongside its translation, the translator makes this pair of use to others. This usefulness for others has been exclusively added by the translator - the author of the source, the agency or the end client has not contributed to it. In this sense, the translator can demand some right over the overall usefulness or value of the TM.

The client might have bought the translation, but has he also bought this order that the translator has introduced into the TM? I wonder if copyright and IP laws cover this aspect - of bringing orderliness in a set of unconnected data - to use physics terminology, the translator is decreasing the entropy of the TM, or put another way, he reduces the chaos within the TM, and for this he should be given credit.


 

Bernhard Sulzer  Identity Verified
United States
Local time: 04:17
English to German
+ ...
TOPIC STARTER
I believe translators need to protect the TMs they create during translation of a comprehensive text Jul 10, 2015

Samuel Murray wrote:

TM Marketplace published some white papers to justify their activities, and some of those ideas were taken over by Ross Smith. Essentially, their position is that (a) intellectual property applies only to unified, sizeable works and (b) TMs consist of fragmented (atomised) works and therefore (c) the intellectual property of the original work does not apply to TM, and therefore (d) the TM is a new creation, whose copyright belongs to the person or party who created it.

It is important to note that they don't say that the translator owns the TM "because the translator is the translator", but rather "because the translator created the TM". By their logic (and that is the whole purpose of their logic), anyone who creates a TM from existing content is the "creator" of the TM and therefore the intellectual property holder of it, regardless of whether the owners of the content from which the TM was created gave their consent for its creation.

Should we understand that this is your view also, Bernhard?


No, of course not. You have pointed to the big problem of ownership and user rights. Why would anyone want to claim ownership and property or user rghts to a TM derived (as in aligned and put through a CAT tool) if they weren't the original translator?
To try to argue that the aligning process by itself would qualify as creation of intellectual property and ownership of the TM seems ludicrous. And nevertheless, they do it.

I am also aware that Smith argues that as long as there is a contract exists defining who owns what, there won't be any problem for an agency for example to claim ownership, no matter who the original translator of the source text, the comprehensive source text, was.
Of course, I can write a contract that will give me and/or the end client ownership and that will define permission of use.

Samuel Murray wrote:
One problem with the TM Marketplace/Ross Smith reasoning:

I see some problems with TM Marketplace/Ross Smith's view, and one problem is the fact that created TMs are not created by entering segment content into the TM individually (manually) but by using a copy of [an extensive portion of] the original work. If you create a TM for non-commercial use (and by "non-commercial" I mean that you won't try to sell the TM), then your use of a copy of the original work is fair usage, but if you want to sell that TM, then your use of the original work is not fair usage, but commercial use, and that means that you would have to have had permission from its owner.


Yes, one big problem is the use of extensive portions of the original work and the translation, or the entire OT and TT. Any use of such documents and their use to create a TM might be subject to national and international copyright laws. You would need certain permissions that grant you such use.

Samuel Murray wrote:
So, while I concede that the intellectual property of the TM may belong to the creator of the TM (and not to the owners of the original works), the problem is that you can't exploit that TM commercially unless you have had permission from the owners of the original works, or unless you extracted the individual segments from the original works manually and individually. The fact that you enter the translation one segment at a time, does not make your TM creation "manual", if you use a program (a CAT tool) that automatically segments the original work (or works on a format that is presegmented).


I won't concede that the intellectual property or ownership of a TM rests with anyone else but the original translator of the entire source and target text work if the TM was indeed created by simply putting OT and TT (or large parts of OT and TT) through a CAT tool without having received permission for that and the subsequent use of said TM by the owners of source and target text (end client) and the translator of the target text.

Samuel Murray wrote:
Remember, copyright is not a right to sell/distribute, but a right to prevent selling/distribution. If you create a new work that is based extensively on an existing work for which you did not acquire copyright, then you own the copyright of your new work, and your copyright gives you the right to prevent (or expect the law to help prevent) anyone from selling your work without your permission, but that does not automatically mean that you yourself have a right to sell that work, if during the creation of that work you have infringed upon the copyright of others.


Yes, true. But I want to focus on TMs in particular. Is it wrong for certain parties to create TMs from whole works (OT and TT) and use and/or sell them? I believe it is if there isn't a contract permitting that use.

Samuel Murray wrote:
To sum up: a TM can be created in a number of ways, among them (A) by capturing individual segments and their translations individually into a database and (B) by taking an existing copyrighted work and using an automated process to segment it and add those segments (along with their translations) into a database. In both cases, let's assume that the creator of the TM is the intellectual property rights owner of the TM. However, in case #B, if the TM creator did not get permission to exploit the original works commercially, then the TM creator's use of those resources is no longer "fair usage" if he attempts to exploit his created TM commercially.


Agree.

Samuel Murray wrote:
The next question is, then, whether the agency/client has the right to use the translator's TM or sell it without the permission of the translator (assuming for clarity that the translator assigned copyright of his translation to the client).


I don't believe so. The translation and the TM are separate entities but they were both created at the same time and are connected, and once created, the original translator's rights as well as the end client's rights to the TM should be defined to clarify the issue. If there's no contract defining ownership and right to use the TM, the right to use the TM should rest with the original translator because it is his/her knowledge that would be exploited by using that TM in other projects and by being used by other translators.


[Edited at 2015-07-10 01:26 GMT]


 

John Fossey  Identity Verified
Canada
Local time: 04:17
Member (2008)
French to English
Isn't the TM a derivative work? Jul 10, 2015

My understanding is that both a translation and the TM are derivative works of the source text and the translator's copyright derives from the source author's copyright.

In most jurisdictions, the creator of a derivative work (the translator) owns the copyright to it, but it's not an absolute copyright. As explained above, the copyright is a preventive copyright, not an enabling copyright. The translator cannot create the derivative work without the permission of the original copyright holder (the source text author) but likewise the original copyright holder cannot use the derivative work without the translator's permission (i.e., when the translator is paid). And the translator's copyright, being derived from the source copyright, does not allow the translator to do anything (reproduce, sell, give away, etc.) with the derivative translation or TM, unless with the original copyright holder's permission.

In some jurisdictions these rules apply by law, so override contract clauses that say differently.

[Edited at 2015-07-10 01:52 GMT]


 
Pages in topic:   [1 2] >


To report site rules violations or get help, contact a site moderator:


You can also contact site staff by submitting a support request »

Translation Memory (TM) is the translator's Intellectual Property (IP)

Advanced search







BaccS – Business Accounting Software
Modern desktop project management for freelance translators

BaccS makes it easy for translators to manage their projects, schedule tasks, create invoices, and view highly customizable reports. User-friendly, ProZ.com integration, community-driven development – a few reasons BaccS is trusted by translators!

More info »
WordFinder Unlimited
For clarity and excellence

WordFinder is the leading dictionary service that gives you the words you want anywhere, anytime. Access 260+ dictionaries from the world's leading dictionary publishers in virtually any device. Find the right word anywhere, anytime - online or offline.

More info »



Forums
  • All of ProZ.com
  • Term search
  • Jobs
  • Forums
  • Multiple search