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Is end client responsible for end translators not getting paid from agency?
Thread poster: Vladimir Konoplitsky

Vladimir Konoplitsky  Identity Verified
Belarus
Local time: 21:08
English to Russian
+ ...
Nov 20, 2017

Dear colleagues,

I would be grateful for your opinions about a sensitive situation in End Client - MLV (multilnaguage vendor) - LSP (local service provider) collaboration.

Case:
A successful global company knowingly orders localization services from a well-known notorious non-payer MLV and then publicly use the localized materials. An end supplier working with MLV is not getting paid for a significant period of time - about a year. Despite all the efforts there are no signs that the matter will be settled in near time.

The questions are more about ethical side of situation:

Does this problem should stay between the end supplier and non-payer agency?
Is it ethical or not to escalate the matter to end client asking them to remove copyrighted (unpaid) translations from use?
Does an end client company bears moral responsibility for end translators not getting paid?


What is your opinion?
What would be your approach, especially if, basically, you do not have strong feelings about end client and would really prefer - in case of direct contact - to keep good relationships with them.


Thank you in advance!


Kind regards,
Vladimir


 

Daniel Frisano
Monaco
Local time: 20:08
Member (2008)
English to Italian
+ ...
If you start like that, it never ends Nov 20, 2017

If there is something that drives me furious, it's the "I couldn't pay you because I haven't been paid yet" tactics.

Great, I'll try to find the same excuse when I have to pay the rent or buy food. I can't pay you because somebody 8 links up the supply chain is not paying somebody else.

And so on, my landlord won't be able to pay his providers, until a provider becomes the original client's client, the circle closes, and nobody pays anybody anymore because they are waiting (forever) to get paid.

[Edited at 2017-11-20 12:51 GMT]


 

Tom in London
United Kingdom
Local time: 19:08
Member (2008)
Italian to English
No. Nov 20, 2017

Q. Is end client responsible for end translators not getting paid from agency?
A. No.


 

Mervyn Henderson  Identity Verified
Spain
Local time: 20:08
Member
Spanish to English
+ ...
Painters Nov 20, 2017

I want my house painted, so I ask a contractor who has a lot of painters on his books. My arrangement is with the contractor, not the painters. The job gets done, and I pay the contractor. Am I responsible if he doesn't pay the painters? No. Why should I care if the painters get paid or don't get paid? In fact, if I find out they haven't been paid, I could even ask the contractor for a discount.

 

Mirko Mainardi  Identity Verified
Italy
Local time: 20:08
Member
English to Italian
Opinion Nov 20, 2017

Vladimir Konoplitsky wrote:

What is your opinion?


Why work for a "well-known notorious non-payer MLV" in the first place?

That said, if the translator hasn't been paid, then they probably still retain the copyright on the translated text. This could be used as leverage with the agency and/or the end client.


 

Sheila Wilson  Identity Verified
Spain
Local time: 19:08
Member (2007)
English
+ ...
Knowingly? Nov 20, 2017

Vladimir Konoplitsky wrote:
A successful global company knowingly orders localization services from a well-known notorious non-payer MLV and then publicly use the localized materials. An end supplier working with MLV is not getting paid for a significant period of time - about a year. Despite all the efforts there are no signs that the matter will be settled in near time.

When you say "knowingly" you mean that the end client knew the agency had a poor reputation for paying its suppliers? I'm not sure that the end client would necessarily know that, or if they did they might discount it when deciding which agency to go with. I imagine using such an agency could have some impact on quality, but if the end client has enough clout (as implied here) they could probably insist on quality. Price would probably be the most important criterion, and this agency was probably cheap.

On the other hand, it's in every translator's own interests to actively seek out the payment reputation of their potential clients. That's the most important part of our due diligence procedures. "Notorious" is a warning to stay away at all costs; not work with them and then blame the end client.

But the point about copyright is well made. It's a very grey area, particularly when the provider and the user are in different jurisdictions. I don't know that it has ever been challenged in any court, but most of us presume that we retain some ownership of our work until we unreservedly hand over all rights upon payment. I myself once contacted an end client and warned them I might have to sue for copyright infringement if they continued to use the (unpaid-for) text. I had already warned the agency that this would be my next step, and carrying through did work - my client paid up the very next day. However, it was a most unpleasant time and I wouldn't care to repeat it. When all's said and done, it isn't seen as professional behaviour, even without signed NDAs that explicitly forbid it. Of course there's absolutely no way you can expect an end client to pay you!


 

Chris S  Identity Verified
United Kingdom
Swedish to English
+ ...
Paint it black Nov 20, 2017

If you buy a stolen car in good faith, and the police put their doughnuts down long enough to trace the car to you, you have to return the car to its original owner and almost certainly forfeit what you paid the thief.

Logically, then, you can assert your copyright. But you still won't get paid!

Though you might then get some work off the end-client in the future.


 

Jennifer Forbes  Identity Verified
Local time: 19:08
Member (2006)
French to English
+ ...
My short answer to your question is "No". Nov 20, 2017

As others have already said here, the end client is NOT responsible for paying you if the agency which hired you to do the translation does not pay you.

We don't know whether you signed a non-compete or non-disclosure agreement with the agency. If you did, you almost certainly undertook not to contact the end client.

Your agreement was with the agency, however dodgy it may be. You have no contract or agreement with the end client.

I wouldn't recommend contacting the end client. They certainly won't be prepared to pay you although, if you explain the situation to them, it's possible that they MIGHT be prepared to bring some pressure to bear on the defaulting agency.

The law on copyright varies considerably from one country to another. You'd need to do substantial research on this aspect of the situation and might need professional legal advice, which could be expensive.

Wishing you more satisfactory clients in future.


 

Nikki Scott-Despaigne  Identity Verified
Local time: 20:08
French to English
No Nov 20, 2017

The freelance translator (FT) has a contract with the agency (A).
The agency had a contract with the end client (EC).
There is no contractual linke between the freelance translator and the end client.

FT < contractual relationship > A < contractual relationship > EC.

You will see there is no contractual relationship between FT and EC.

If A does not pay FT, then A is in breach of contract. In many jurisdictions this is a breach of a fundamental term of a contract. In other words, if the FT does the work, it is fundamental that he/she be paid for it. If EC has not paid A, that is not a valid excuse for not paying FT. In fact, there is no valid excuse, except bankruptcy. If anyone has to absorb the loss from non-payment, it is A, not FT.

The agent creams off its percentage for finding an FT to do the job for his EC. When it all works smoothly, that is fine; that is how the agent makes a living. The downside of this is that the agent runs the risk of not being paid by EC. Nothing in the contractual arrangement permits A to use non-payment (or late payment) by EC as an excuse to pay FT late, or not at all.

If a bill has not been paid for over a year, then it is time to take legal action, if the amount is sufficiently high. For a small amount, recovery may be too expensive.

Any discussion of morals is unhelpful. This is basic contractual stuff and, unfortunately as we see on these pages, actually quite a common excuse with the less scrupulous agencies.

[Edited at 2017-11-20 14:42 GMT]


 

Thomas T. Frost  Identity Verified
Member (2014)
Danish to English
+ ...
Copyright infringement Nov 20, 2017

Alleged copyright infringement can be reported to Google, starting at support.google.com/legal/answer/3110420?hl=en.

Although handling the report can take a while, Google does deal with such requests. It could lead to one or more pages being de-indexed.

A faster way to get content taken down can be to look up which company is hosting the website, for example at whois.domaintools.com, then report the alleged violation to that company. Some hosting companies will act very quickly and take the offending page or domain down.

These are my experiences from reporting copyright violations when content was stolen from my websites.

Such action can have dramatic effect, and it would seem fair to issue warnings in advance.

I'm not stating whether or not it's a good idea to do this in relation to unpaid translations, as the legal questions are complex.


 

Vladimir Konoplitsky  Identity Verified
Belarus
Local time: 21:08
English to Russian
+ ...
TOPIC STARTER
Ethical side Nov 20, 2017

Thank you for all replies!

Few clarifications:

It is clear that the end client does not have legal obligations to pay to end contractor. This is why I asked only for your personal opinion about their "moral responsibility", if any, when they know that their MLV has significant problems with payments (they have been sent a BlueBoard link before).

As for copyrights, our translators are "lucky" enough to have a contract stating that their translations remain their intellectual property until fully paid. So legally they have a right to contact an end client. However, as I originally stated, my questions are more about ethical side of the question.


 

Daryo
United Kingdom
Local time: 19:08
Serbian to English
+ ...
wait a second, not quite ... Nov 20, 2017

"the end client is not responsible for the behaviour of the outsourcers /subcontractors"

or as Nikki Scott-Despaigne said:

The freelance translator (FT) has a contract with the agency (A).
The agency had a contract with the end client (EC).
There is no contractual linke between the freelance translator and the end client.

FT < contractual relationship > A < contractual relationship > EC.

You will see there is no contractual relationship between FT and EC.


Yeah sure, with a big fat "BUT": like "no contractual relationship between FT and EC"? not so sure ...

namely, depending on the specifics, presented the right way, that kind of arguments wouldn't wash in a litigation

this kind of logic was used for years by "reputable companies" to subcontract to all sorts of exploitative businesses,
preferably way out of sight, far away abroad if possible (employing child labour, making people work in buildings that could at an moment collapse and bury them, without any protection from poisonous chemicals, etc etc ...)

until there was a public pressure (just one many possible methods) sending them a message "stop pretending you don't know"

but even from the purely legal point of view in many cases there are options available to get your money or if nothing else to repay the favour to the non payer but "improving" their reputation - unfortunately too long to go into details.

As a general rule: don't expect those in the pay of crooks to explain to you how to beat them .... they will only ever tell you only the parts of the law that suits them.


 

Sheila Wilson  Identity Verified
Spain
Local time: 19:08
Member (2007)
English
+ ...
No contractual relationship between FT and EC Nov 20, 2017

Daryo wrote:
"no contractual relationship between FT and EC"? not so sure ...

namely, depending on the specifics, presented the right way, that kind of arguments wouldn't wash in a litigation

this kind of logic was used for years by "reputable companies" to subcontract to all sorts of exploitative businesses,
preferably way out of sight, far away abroad if possible (employing child labour, making people work in buildings that could at an moment collapse and bury them, without any protection from poisonous chemicals, etc etc ...)

until there was a public pressure (just one many possible methods) sending them a message "stop pretending you don't know"

Those are entirely different types of contractual arrangements that cover construction and/or long-term contracts. Ours are more "work for hire" contracts covering simply the one text we've been commissioned to translate. There really is no link between the two ends of the chain in such contracts.

but even from the purely legal point of view in many cases there are options available to get your money or if nothing else to repay the favour to the non payer but "improving" their reputation - unfortunately too long to go into details.

Well, that's a shame because that's probably what the OP wanted to know icon_smile.gif.


 

Tomás Cano Binder, BA, CT  Identity Verified
Spain
Local time: 20:08
Member (2005)
English to Spanish
+ ...
Only with the agency... unfortunately Nov 20, 2017

Vladimir Konoplitsky wrote:
Should this problem stay between the end supplier and non-payer agency?

Exactly. Your business relationship is with the agency (unfortunately in this case).

Vladimir Konoplitsky wrote:
Is it ethical or not to escalate the matter to end client asking them to remove copyrighted (unpaid) translations from use?

It is not ethical. You have no business relationship with the end customer.

Vladimir Konoplitsky wrote:
Does an end client company bears moral responsibility for end translators not getting paid?

Well, if the end customer is aware that the agency is not paying their suppliers, then they have a moral responsibility in the sense that they should always subcontract with sensible providers, if only because, ultimately, the number (and skill) of the translators working for the agency will decrease, and the end client will have severe quality issues.

While I entirely sympathise with you on this matter, unfortunately our relationship in these cases is with the agency and not the end customer. This is why it is all important that we do out work researching agencies before agreeing to work for them. I wish there was some way to let the end customer know that they are hiring a non-payer, but this is not really for us to reveal and more for them to discover, I guess.


 

Lingua 5B  Identity Verified
Bosnia and Herzegovina
Local time: 20:08
German to Serbian
+ ...
Small scale and large scale. Nov 20, 2017

Mervyn Henderson wrote:

I want my house painted, so I ask a contractor who has a lot of painters on his books. My arrangement is with the contractor, not the painters. The job gets done, and I pay the contractor. Am I responsible if he doesn't pay the painters? No. Why should I care if the painters get paid or don't get paid? In fact, if I find out they haven't been paid, I could even ask the contractor for a discount.




I would investigate in such a case, this is a small individual project.

However bear in mind that large corporations (it seems the case in the OP's scenario) do not have the time to handle all this and they will entrust everything to the provider (an agency) without checking anything much. Their management structure is so complicated and there are many layers in the organization, they won't bother investigating such a thing as a subcontractor of a subcontractor having failed to be paid (a small individual), they won't care really.


 
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