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Does the translator own the copyright?
Thread poster: Jennifer Forbes

Jo Macdonald  Identity Verified
Spain
Local time: 08:41
Member (2005)
Italian to English
+ ...
Make sure they have assets Nov 7

Jennifer Forbes wrote:

Yes, it looks as if using a debt collector will be my only hope.



Jennifer if going the debt collection route, which might involve hiring a lawyer and getting a ruling from a judge with copies of mails, POs, invoices, etc. before doing that imo it's a good idea to hire someone to make sure your client has assets.

I took one of my clients to court about ten years ago and even though there were no lawyers' fees it cost about 1.5 thousand in court costs and in the end having a ruling in my favour for 4.5 thou + interest in unpaid invoices meant nothing because all the ex-client had to do was not answer the door to sign for registered mail and make sure any assets weren't in his name. In the end I was 6 thou out of pocket instead of 4.5 after paying the law to tell me "yes I had a right to be paid" but we are apparently incapable of enforcing the court order.
After ten years if you still want to be paid you have to go to court again to get another order = throw more cash down the drain. I just wrote it off.

If an assets search isn't a service the debt collector offers a PI should be able to do this for about €2/300. If the client has folded, done a runner and has no assets, having a court order saying "this paper pauper owes me cash" ain't worth the paper it's written on.

I would first try Sheila's EU Payment Order suggestion or any other less costly, less complicated and probably just as effective debt recovery attempts before going the lawyer/court route. I'm pretty sure some debt collectors work on a percentage of recovered sums basis with no fees if no sums recovered. That was the agreement I had with the lawyer in the above case.


 

Jennifer Forbes  Identity Verified
Local time: 15:41
Member (2006)
French to English
+ ...
TOPIC STARTER
Update Nov 9

The payment deadline I gave this client has now passed and I've still received no payment. She doesn't reply to emails and no-one answers the phone.

I've therefore made a negative comment for the Blue Board which is awaiting approval by Proz. I've also sent Proz a non-payment report.

I fear I may have to kiss my money goodbye as the sum concerned is probably not big enough to be worth employing a debt collector or initiating legal action. Heigh ho ...


 

Eliza Hall
United States
Local time: 10:41
Member (Aug 2018)
French to English
+ ...
Small claims? Nov 9

Is there such a thing as small claims court in Spain? In other words, a simplified court process for small debts?

If this happened in the US, you could file in small claims court, without a lawyer, for about $20-$30 (the filing fee). If the other party failed to show up to the hearing and you did show up (you or a lawyer you hired -- you can use a lawyer but don't have to), then you would automatically win. If you both showed up, you'd still win because it's such a simple case (they hired you, you did the work, they didn't pay).

Collecting the money would be another story, but at least you'd have a judgment against them, which would negatively impact their credit score (i.e. their ability to get loans, credit cards, etc.). Knowing that judgments make them look bad, people will often pay up immediately when served with notice that you've sued them in small claims court.


Chris S
Sheila Wilson
 

Tom in London
United Kingdom
Local time: 15:41
Member (2008)
Italian to English
Any help? Nov 10

https://www.milanuncios.com/servicios-en-valencia/cobro-morosos.htm

 

Jennifer Forbes  Identity Verified
Local time: 15:41
Member (2006)
French to English
+ ...
TOPIC STARTER
Update Nov 10

Tom, thank you for that link which could prove most helpful.

To my surprise, I've just received a brief email from the publisher in which she says that she'll be paying me €150 today and the balance "as soon as possible this week". She also apologises for the "molestias".
Perhaps my negative entry on the Blue Board did have an effect after all? If she does pay today - a Saturday - and the rest "this week", I'll say no more and have no further dealings with her.
If she doesn't, I may well approach one of the abogados listed in the link you sent me.


 

Tom in London
United Kingdom
Local time: 15:41
Member (2008)
Italian to English
Reading Nov 10

Jennifer Forbes wrote:

Tom, thank you for that link which could prove most helpful.

To my surprise, I've just received a brief email from the publisher in which she says that she'll be paying me €150 today and the balance "as soon as possible this week". She also apologises for the "molestias".
Perhaps my negative entry on the Blue Board did have an effect after all? If she does pay today - a Saturday - and the rest "this week", I'll say no more and have no further dealings with her.
If she doesn't, I may well approach one of the abogados listed in the link you sent me.


She's probably following this thread and has visited the link. Don't let her off the hook. And don't make any deals with her about changing/removing your BlueBoard rating in exchange for payment.

[Edited at 2018-11-10 12:32 GMT]


 

paula13  Identity Verified
Argentina
Local time: 12:41
Member (2005)
Misunderstanding Berne? Nov 10

Eliza Hall wrote:

paula13 wrote:

In addition to what fellow lawyer/translator Eliza Hall already clarified above, with which I wholeheartedly agree, I would add a couple of further clarifications.

1. Work-for-hire applies mostly to Common Law countries, particularly the U.S. It's not the international standard.


True, but in practice there's not as big a difference as one might think.


I agree, however, one difference I've noticed in practice (at least in Latin America which is where I'm based) is that you can't retain ownership until you get paid. Please correct me if I'm wrong, but I believe you can do that in the U.S.

Eliza Hall wrote:

paula13 wrote:

Under Berne, translation is a derivative work and copyright is licensed not sold. You need permission from the copyright holder, not the necessarily the author to translate something. And you have moral rights over your work.


Translation is a derivative work by definition (it's a new work derived from an older work).


Agreed. I didn't mean to imply that translation is only derivative under Berne, but I can see how my phrasing gave you that impression.

M

Eliza Hall wrote:
Berne doesn't provide that copyrights are licensed and not sold. Here's a summary of Berne -- this sets forth the rules that member countries have to implement in their own domestic copyright laws: http://www.wipo.int/treaties/en/ip/berne/summary_berne.html


Also agreed, but what I've seen in contracts I receive from European publishers is always a license never a sale. In fact, when I talked about this to other lawyers in the EU, they claimed that, because of how moral rights are conceived under Berne, copyright can only be licensed not sold in the EU. That's not the case where I am (Argentina, by the way), even though Argentina is also a signatory to the Berne Convention. What's your take on that?

Eliza Hall wrote:

paula13 wrote:
3. Most Civil Law countries have standards that go beyond Berne when recognizing moral rights, even to derivative work.


True. The US sucks at moral rights.


So I've heard.

In case anyone's interested, here's a detailed overview of US copyright law (including its adoption of Berne): https://www.finnegan.com/en/insights/copyright-law-for-business-people-a-handy-guide.html


Great resource. Thank you!


 

Tom in London
United Kingdom
Local time: 15:41
Member (2008)
Italian to English
£ Nov 12

Jennifer Forbes wrote:

......she says that she'll be paying me €150 today and the balance "as soon as possible this week".....


Please keep us informed.


 

Eliza Hall
United States
Local time: 10:41
Member (Aug 2018)
French to English
+ ...
Licensing/assigning; moral rights Nov 13

paula13 wrote:
one difference I've noticed in practice (at least in Latin America which is where I'm based) is that you can't retain ownership until you get paid. Please correct me if I'm wrong, but I believe you can do that in the U.S.


How odd! Yes, you can do that in the US if you are not under a work-for-hire agreement. In other words, if you're neither of the following: (1) an employee (as opposed to freelancer) hired to do translations, or (2) a freelancer who signed a work-for-hire contract. If you ARE under a work-for-hire agreement, then you never own the copyright in the first place; it belongs to your employer (or the commissioning client) from the beginning, so there is no way for you to retain it.

In every other case -- freelancers without written contracts, freelancers whose contracts do not include copyright provisions, freelancers whose contracts state that they are assigning the copyright to the client -- you own the copyright. In that third example, if there's a written contract that says you're assigning (transferring/giving/selling) the copyright to the client, you have to check whether it indicates when the assignment happens. Some contracts effectively assign the copyright upon creation of the work (i.e. the translation).

So you would want to make sure that if the contract says you are assigning copyright, that it also says you will assign upon receipt of payment in full.

paula13 wrote:
what I've seen in contracts I receive from European publishers is always a license never a sale. In fact, when I talked about this to other lawyers in the EU, they claimed that, because of how moral rights are conceived under Berne, copyright can only be licensed not sold in the EU. That's not the case where I am (Argentina, by the way), even though Argentina is also a signatory to the Berne Convention. What's your take on that?


In the US too, publishers usually license copyrights rather than seeking an assignment. It may just be a convention among publishers of how to operate. The only exception I've noticed in the US is university publishers (i.e., the University of XX Press -- these publishers put out scholarly tomes by academics and sometimes literary works whose likely readership is too small for a mainstream publisher to publisher them).

Moral rights are inalienable, or some of them are. In other words even if the author signs a contract that says "I give up my moral rights in this work," they don't actually give those rights up; they can't. I say "some of them" because there are a range of different rights that are considered "moral rights" -- they don't all exist in every Berne country, and which ones -- if any -- are alienable depends on which country's law we're talking about. The biggest and almost universal one is the right of attribution: the right to have your name associated with the work. I'm pretty sure that one is inalienable everywhere that it exists.

I can imagine that in a country with strong moral rights, of which some are inalienable, it might make sense for commercial practice to evolve such that copyrights were always licensed rather than assigned. Copyright is a single word that covers a range of different rights: the right to copy, the right to publish, the right to broadcast, the right to make derivative works, etc. (and also the moral rights, in those countries). As a practical matter, assigning a copyright when you actually are not allowed to assign all of the rights could create some tricky situations, so perhaps it just makes more sense to license them.

[Edited at 2018-11-13 14:10 GMT]


 

Faustine Roux  Identity Verified
United Kingdom
Local time: 15:41
English to French
If no-one answers the phone... Nov 14

...try hiding your phone number.
They probably don't answer because they can tell it's you on the other end of the line. Wait a few days after your last call, hide your number (or call with someone else's phone) and call them again. Chances are they're going to answer. Worked for me a couple of times with some dodgy clients.

Good luck!


 

Jennifer Forbes  Identity Verified
Local time: 15:41
Member (2006)
French to English
+ ...
TOPIC STARTER
Thank you - and update Nov 14

Thank you, Faustine. Yes, I had those telephone manoeuvres in mind, although, in my case at any rate, I can identify "last caller's number" when the call comes from the UK (where I am), but not when the call comes from abroad, so I'm not sure that the publisher knew it was me on the line - possibly she did - and possibly she was avoiding other creditors too.
However, she has today transferred €150 to my bank account as part of the sum she owes me and I have acknowledged receiving it and reminded her of the balance still due. So it drags on. We'll see ...
And thank you everyone who has contributed to this thread.

[Edited at 2018-11-14 13:08 GMT]


 

LEXpert  Identity Verified
United States
Local time: 09:41
Member (2008)
Croatian to English
+ ...
Try calling from a different number Nov 14

Jennifer Forbes wrote:

I have three telephone numbers for this client, two for the publishing house and one the lady's home number. I have rung her home number. No reply. I have rung the business numbers several times during Spanish opening hours. No reply. Perhaps they have done a flit?


Or they are screening their calls and refusing to answer when they see your number (happened to me with a deadbeat client a while back). Try calling from a different number, one they haven't associated with you. It worked for me to finally get the deadbeat on the line after many attempts, though I never did get paid, sadly.

Edit: Just saw after I posted that Faustine had the same suggestion. Unfortunately, screening for calls they want to avoid seems to be a common tactic.

[Edited at 2018-11-14 18:02 GMT]


 
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