Not paying for a translation, yet retaining the intellectual property rights: legally sound?
Thread poster: Akoma
Akoma
English to Russian
+ ...
Nov 25, 2006

Every now and then I come across an agreement form (between Client and Translator) whereby Client may withhold payment from Translator (for "poor quality" or such) while retaining -- these agreements spell out -- all the copyright to the translation, simply by virtue of having commissioned it. I never sign such contracts, of course, nor do I bother to approach agencies known to offer that sort of contractual crap, and yet I'm idly wondering about the legal soundness of these constructs. Can it be really upheld in court? So I would be interested to hear about legal perspectives from different countries.

[Subject edited by staff or moderator 2006-11-25 12:12]


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Hipyan Nopri  Identity Verified
Indonesia
Local time: 02:28
English to Indonesian
+ ...
Really an unfair clause Nov 25, 2006

Client may withhold payment from Translator (for "poor quality" or such) while retaining -- these agreements spell out -- all the copyright to the translation, simply by virtue of having commissioned it.

The client, rather than the translator, must be held responsible for the poor quality translation. It is he/she who decides to assign the translator to a certain job. Thus, he/she should have had clear-cut overview of the translator in terms of rates, skills (based on results of test translation of the partial segment of the document), experience, and qualifications, all of which lead to the translator's potential quality.
If it turns out that the selected translator is underqualified, it means that the client's recruitment procedure is defective. Of course, the translator will accept the job with pleasure.
It is the client that should be blamed. Thus, the clause must be omitted in any agreement.
As for myself, I have never found such clause. If I do, I would refuse it altogether.


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Akoma
English to Russian
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TOPIC STARTER
I probably didn't make myself clear enough Nov 25, 2006

Hipyan Nopri: "The client, rather than the translator, must be held responsible for the poor quality translation.--- the clause must be omitted in any agreement."

I guess I didn't make myself clear enough, probably because I'm not a lawyer but a translator. I'm not talking about who must be held responsible for the poor quality of a translation or whether one should agree to work under such provision. I'm talking about legally retaining all the property rights to a translation without having paid for it -- the trick I see some contracts theoretically allow clients to perform.

Let's put it this way: suppose -- SUPPOSE -- I sign a contract saying that Client may not pay me if (S)he finds my translation "bad"
(and as I've told I've seen such contracts, and if you look up the Proz forums archives you'll find discussions of such contracts, which some other translators apparently had been offered too); or the Client may withhold the payment for not delivering on time (regardless of the circumstances); the contract also says that any translation commissioned by the Client becomes the Client's property. So I translate a book (for instance) and the Client says it's "bad"; or I translate a book and don't deliver it on time because, say, of a strike of IP providers))) -- anyway, the Client doesn't pay me, yet publishes the translation. Or, in case with other kind of text, uses it, without paying me, which the contract allows him/ her to do.

The question is whether the legislation in different countries condones such legal arrangements. Are they legally sound and can be upheld in court?

[Редактировалось 2006-11-25 13:30]


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Heike Behl, Ph.D.  Identity Verified
United States
Local time: 11:28
Member (2003)
English to German
+ ...
US law Nov 25, 2006

AFAIK (I'm not a lawyer, so don't quote me in court ) in the US, if the contract spells out that the translation is done as commissioned work, or work to order, the copyright belongs to the company, not the translator. This is a fairly common clause in a translator's agreement.
This is parallel to the situation of an employee producing work during work hours at a company's office - any new invention, for instance, would belong to the company. And usually, employment contracts include that clause.

I also have no doubt that it's the right of the company to include provisions for the situation that the delivered work is unacceptable in order to protect themselves. They are two different issues. If it's in the contract and you sign it, why would it not be upholdable in court?

Whether you'd want to sign such a contract, is a different issue. I think it mostly depends on the formulation (and the reputation of the company, of course). Some sort of protection clause is also standard in a translator's agreement.

I generally don't object this type of protection clauses if the contract also includes that in case of a dispute, the quality (or the lack of it) of the work is established by an independent third party to which both contract parties agree. Or if the contract spells out the situations in which they are allowed to withhold payment and these are severe enough to warrant this measure.

The main issue (from a translator's point of view) is the process of establishing bad quality. If this is a ridiculus process, let's say they reserve the right not to pay if they need to make any changes to your delivered translation (as in a contract once offered to me), and they really refuse to pay you because they had to change the format somewhere or add a comma, I doubt that a court would rule in their favor as this would go beyond a reasonable interpretation of the clause.

However, in my (legally unqualified) opinion, any quality/payment issue would not affect the copyright of the produced work. If you want to link these two issues, you'd probably have to insist on a clause that states that the copyright belongs to you until payment is received.

Ultimately, it depends of course on the copyright laws of each country.


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Astrid Elke Witte  Identity Verified
Germany
Local time: 20:28
Member (2002)
German to English
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The copyright originally belongs to the translator Nov 25, 2006

However, once a commissioned translation is sold, the copyright belongs to the purchaser. It stands to reason that, if the purchaser does not pay for the translation, i.e. refrains from purchasing it, it may also not use the translation and has no copyright to it.

One possible use for translations that have not been paid for is to assert your copyright by pasting them up on the "sample translations" page of your profile. However, doing this would depend upon whether they are the right translations to supplement your profile to its advantage.

I would assume that any clause of the type you describe would be deemed to be ineffective by a court.

Astrid


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Hipyan Nopri  Identity Verified
Indonesia
Local time: 02:28
English to Indonesian
+ ...
I am very sorry for missing the point. Nov 26, 2006

In fact, my post was made at night where I usually have slept. Thus, I was very sleepy then.

In this case, there are four major issues that I can conclude:
a. Copyright
b. Payment
c. Quality
d. Legal power

With reference to the Indonesian Copyright Act 2002, a translation is protected as a separate work. The translator is the holder of the copyright, but when the translation is sold to the agency, then the possession of copyright is transferred to the agency.

On the contrary, if the agency does not pay the translator for quality reasons, it means that the translation has not been sold yet. Then, the translator still holds the copyright.

With respect to quality, it should be determined by strictly open, impartial, and logical examination. In my experience, at best a translation job involves six steps - translation, editing, proofreading, reviewing, discussion, and final revision (the editor serves as the coordinator during the whole process); at worst, it involves four steps - translation, editing, discussion, and final revision. Claiming that a translation is bad without this process does not make sense altogether.

Finally, anything as part of a contract, whether it is favourable or unfavourable to a certain party or to both parties, consciously and willingly signed by both parties has legal power. Consequently, it can be upheld in a court.

Thanks so much for reminding me of my unintentional mistake.





[Edited at 2006-11-26 03:45]


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Akoma
English to Russian
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TOPIC STARTER
Replies Nov 26, 2006

Thanks to everyone for their input. This is not at all to say that the discussion is over, but just to thank everyone for sharing their opinions. Actually, I've brought it up because I think that "contractual equity" (let's name it thus) is something that translators organizations should concern themselves with along with fair pricing.
To Heike Behl:
"This is parallel to the situation of an employee producing work during work hours at a company's office - any new invention, for instance, would belong to the company."
There is a certain parallel here, of course, but there are differences as well: to the best of my knowledge, in most, and maybe all, developed countries the established labour practices (and probably legislation too) do not allow to "punish" staffers monetarily. I do not hear about the employers imposing fines on the workers or, God forbid, non-paying them by way of "punishment" (at least, the first-world employers vis-a-vis the first-world workers; the first-world employers vis-a-vis the third-world workers may be different though)))) )
Or am I wrong here?

"If it's in the contract and you sign it, why would it not be upholdable in court?"
Do courts really uphold everything that have been signed?

"I generally don't object this type of protection clauses if the contract also includes that in case of a dispute, the quality (or the lack of it) of the work is established by an independent third party to which both contract parties agree."
In all contract forms with a "punishment clause" that I've seen (and by far not all contracts that I've seen have clauses of this kind), only one provided for a review "by an independent third party to which both contract parties agree." The rest put the evaluation at the sole discretion of the Client.

"The main issue (from a translator's point of view) is the process of establishing bad quality." Absolutely.

"any quality/payment issue would not affect the copyright of the produced work." Why not? If we see the copyright as a property right, then it should. If you buy something in a store and it's faulty, to get a reimbursement, you have to return it to the store, don't you? You cannot keep it AND get a reimbursement?

"you'd probably have to insist on a clause that states that the copyright belongs to you until payment is received." True, but hard to do.

To Hipyan Nopri: "I am very sorry for missing the point."
Never mind. I too sometimes do in others' posts, especially when sleepy)))) !


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Manuel Rossetti
Local time: 19:28
reply: Nov 26, 2006

Heike Behl, Ph.D. wrote:

AFAIK (I'm not a lawyer, so don't quote me in court ) in the US, if the contract spells out that the translation is done as commissioned work, or work to order, the copyright belongs to the company, not the translator. This is a fairly common clause in a translator's agreement.
This is parallel to the situation of an employee producing work during work hours at a company's office - any new invention, for instance, would belong to the company. And usually, employment contracts include that clause.

I also have no doubt that it's the right of the company to include provisions for the situation that the delivered work is unacceptable in order to protect themselves. They are two different issues. If it's in the contract and you sign it, why would it not be upholdable in court?

Whether you'd want to sign such a contract, is a different issue. I think it mostly depends on the formulation (and the reputation of the company, of course). Some sort of protection clause is also standard in a translator's agreement.

I generally don't object this type of protection clauses if the contract also includes that in case of a dispute, the quality (or the lack of it) of the work is established by an independent third party to which both contract parties agree. Or if the contract spells out the situations in which they are allowed to withhold payment and these are severe enough to warrant this measure.

The main issue (from a translator's point of view) is the process of establishing bad quality. If this is a ridiculus process, let's say they reserve the right not to pay if they need to make any changes to your delivered translation (as in a contract once offered to me), and they really refuse to pay you because they had to change the format somewhere or add a comma, I doubt that a court would rule in their favor as this would go beyond a reasonable interpretation of the clause.

However, in my (legally unqualified) opinion, any quality/payment issue would not affect the copyright of the produced work. If you want to link these two issues, you'd probably have to insist on a clause that states that the copyright belongs to you until payment is received.

Ultimately, it depends of course on the copyright laws of each country.


I'm no lawyer either. Just because a certain clause is in a contract, does not mean it can be enforceable.
You may want to research the laws in the State you live in or write down a list of questions that you may have regarding contracts and consult a lawyer.

I'd like to note however, that my best clients have not given me any tests, never have paid me late nor have they made me sign any contracts. They are also all here in the United States.

It's not just freelance jobs that deal with contracts that have these clauses, but businesses that hire on employees by contract. I once had this one job where I had to create and use my own materials for the job and create a table of contents and plan for the term of the contract and yet it was all to be the property of the business that hired me on as their contract. Also, I couldnt search or do any other type of work related to that business for which I was contracted for.

**Also, I couldnt search or do any other type of work related to that business for which I was contracted for up to an X amt. of years.**

Dont quote me exactly on the above statement, but there are clauses that cannot be enforceable in court.
Just because you sign a contract does not mean that everything in that contract is enforceable. You need to research your laws in the state in which the legal puruit would take place.

Just because you are employeed by contract for a business (freelance or in-house or contract) clauses in the contract that state that because you are now working as a contract for this business, you cannot seek any other employment or your own employment related to the business you are now doing.

Furthermore, usually businesses have laws they have to abide by in which you can seek legal help through the legal department of the your state's Employment Department. This is especially good if they decide to give you payment problems or discrimination problems, etc.

However, being employed by means of a contract, you are on your own in regards to the legal issues.

I once had someone lose my paycheck. After getting the run-arounds for over a month, the Director who was responsible for paying me, who kept passing on the responbilities to everyone in that business that made up the staff, paid me not just my check that was owed to me, but an extra run because I was already behind on bills.

It was one of his staff members that told me that he had lost my time sheet and never informed me about it. I had to resend my time sheet. AND all the materials I had created was THEIR property. Luckily I didnt invest much time at all for HIS business. THe language materials I had created and audio tapes were theirs.

I had contacted the legal dept. from the local employment department and sent proof of my materials and time sheets and a detailed report of all my efforts to get my money. The gentleman was kind to help me in the matter and did contact my Director. However, I was fortunate the Director sent me my check plus an extra one because according to the Legal Dept. Gentleman, when it comes to contracts, you're on your own with consulting a laywer.

It's also infuriating when 1/2 way through a project or towards the end of a project, an agency decides not to pay you unless you agree to everything on the contract and sign it.


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