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Who is the "copyright owner" of translation texts?
Thread poster: MariusV

MariusV  Identity Verified
Lithuania
Local time: 19:24
English to Lithuanian
+ ...
Feb 20, 2015

For example, a translation agency gives a job to translate to a translator, there are no specific agreements on copyright (so this is governed by the law "as it is in general"). Would it be correct to consider that before the moment of payment settlement, the translator, "by default", has full copyright ownership to the translated materials? Also the same in cases if the vendor is late with the payment? I am asking this because I want to initiate a copyright claim to the end client of one UK translation agency which, as it turned out to be, is a notorious non-payer and scam.

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Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 18:24
English to Polish
+ ...
Depends on the law and the contract Feb 20, 2015

Copyrights may vest in employers rather than employees, workers commissioned under mandates, hired-work contracts etc., depending on the jurisdiction. In B2B, I'd expect the contractor and not the client to have the copyright, unless specific provisions are put in place to make sure the copyright does vest in the contractor.

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Attila Piróth  Identity Verified
France
Local time: 18:24
Member
English to Hungarian
+ ...
Answer Feb 20, 2015

"Translations remain the property of the Service Provider until payment has been received in full."
General Terms of Sale recommended by the SFT, http://www.sft.fr/clients/sft/telechargements/file_front/4b50d11ac6881.pdf

You are right. It may give some emphasis to your words to quote the T&C recommended by a major association.

Best,
Attila


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MariusV  Identity Verified
Lithuania
Local time: 19:24
English to Lithuanian
+ ...
TOPIC STARTER
good news Feb 20, 2015

Thank you for the good news. And one more question - if the translated materials HAVE been used (by the end client), and considering that the service provider (who was not paid for the translation) is the actual copyright owner, can it then be considered that those who used the translation breached the "ownership/copyright rights" of the "copyright owner" (service provider)? I will go to a Small Claims Court to try to get the payment, so I can also raise the copyright claim to the end client?

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David Wright  Identity Verified
Austria
Local time: 18:24
German to English
+ ...
Basically yes. Feb 20, 2015

In the only dispute I ever had with a client about non-payment, simply threatening to contact the end-client and warn them that the use of the translation might be a breach of copyright was sufficient to get my client to pay up.

Things, as usual, are never clear cut, but unless your contract with your client states that coypright transfers upon delivery, you probably do retain copyright. And it could be argued that even if there is such a clause in your contract, the fact that your client has not complied with his part of the contract (payment) could justify you claiming that copyright did not transfer.

As for claiming in the small claims court - you can only claim against the person against whom the action has been brought, so you would have to bring an action against the end-client. This could be risky, but it is again something you could threaten to do to get your client to comply with his part of the contract.

Of course, if your client has (or thinks he has) reasons for not paying, things are again more complicated. However, if the end client has actually used your translation, then it's not really likely that there are quality issues involved.


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RobinB  Identity Verified
Germany
Local time: 18:24
German to English
Not as simple as that! Feb 20, 2015

Attila Piróth wrote:

"Translations remain the property of the Service Provider until payment has been received in full."
General Terms of Sale recommended by the SFT, http://www.sft.fr/clients/sft/telechargements/file_front/4b50d11ac6881.pdf


That may be the case under French law (though I would like to see a clear definition of “property” in this specific instance), but it certainly doesn’t hold true under e.g. German law, which makes a clear distinction between the right to use a product delivered under a service agreement to deliver a specific product ("Werkvertrag") and payment for that product (i.e. use of the product is not contingent on the payment).

For a more exhaustive discussion of the extremely complex and in part unresolved issue of IPR in translations, see e.g. the European Commission’s publication on “Translation and Intellectual Property Rights” at:

http://bookshop.europa.eu/is-bin/INTERSHOP.enfinity/WFS/EU-Bookshop-Site/en_GB/-/EUR/ViewPublication-Start?PublicationKey=HC0114287

which includes a detailed analysis of the legal position in the UK (as well as Belgium, France and Germany).

@MariusV: I would also be *extremely* wary about threatening to contact the ultimate client. Again, depending on the jurisdiction, this could actually be viewed as a criminal offence (it certainly would be in Germany). So if you think that contacting the end-client is your only way out, I would urge you to discuss this with a lawyer first, who might well point out that the translator has no rights to speak of in respect of the end-client.


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Samuel Murray  Identity Verified
Netherlands
Local time: 18:24
Member (2006)
English to Afrikaans
+ ...
Ownership versus copyright Feb 20, 2015

Attila Piróth wrote:
"Translations remain the property of the Service Provider until payment has been received in full." -- General Terms of Sale recommended by the SFT.


Yes, but ownership is not the same as copyright. If you write a letter to me, then I'm the owner of the letter, and you're the copyright holder of it. It is telling that the sentence you quote is not part of the "copyright" section of the PDF.


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Samuel Murray  Identity Verified
Netherlands
Local time: 18:24
Member (2006)
English to Afrikaans
+ ...
Just a few thoughts Feb 20, 2015

MariusV wrote:
For example, a translation agency gives a job to translate to a translator, there are no specific agreements on copyright (so this is governed by the law "as it is in general").


Well, if there is no agreement otherwise, then it would depend on the laws of the country of the translator and the client, and such laws can differ from region to region.

My own reasoning would be this:
The translator grants the client (or the end-client he represents) a license to use the translation (in all mediums and for any purpose), starting from the deadline of the job. As soon as the job's deadline has passed, the client is deemed to have a license to use the translation, and he may legitimately use it immediately, even if payment is "30 days after invoice".

Permission to use the translation is not given only from the date that payment is made. In fact, I'm not even sure if payment has anything to do with permission to use the translation. I'm not sure if the translator can "take back" the permission to use the translation, simply because the client failed to pay him. After all, permission means permission.

Would it be correct to consider that before the moment of payment settlement, the translator, "by default", has full copyright ownership to the translated materials? Also the same in cases if the vendor is late with the payment?


You can try to bully the client with the claim that he is in breach of copyright. He might just believe you, and cave in. It's worth a try. I'm not sure if it will fly in court, though.

But you're talking about "copyright", and that is different from "permission to use". Even if you retained the copyright, another party might still have obtained your permission to use it.

I am asking this because I want to initiate a copyright claim to the end client of one UK translation agency which, as it turned out to be, is a notorious non-payer and scam.


If you never gave permission to the client to use your translation, then there is breach of copyright. However, a court might look at what was assumed, and I think it would be fair for a client to have assumed that if he orders a translation, then he has permission to use it.

I will go to a Small Claims Court to try to get the payment, so I can also raise the copyright claim to the end client?


You can try. Maybe the small claims court judge know only enough about copyright to be dangerous. So do not assume that the judge know all about copyright, but make sure you can prove your beliefs about whether translators have copyright of their translations.


[Edited at 2015-02-20 09:55 GMT]


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Chris S  Identity Verified
United Kingdom
Swedish to English
+ ...
Interesting thread Feb 20, 2015

I don't think you have a claim against the end-client, because they presumably have paid the agency and used the text in good faith.

When we worked for UK agencies they would pay instantly at even just the threat of a small claim, so that must be the way to go.

As for actual copyright, I'm no lawyer but a translation is not an original work and you're being paid to do it, so it's probably quite complex. Common sense says that if a customer doesn't pay you, you can demand your product back, but I'm not sure how that works if it's already been published... There must be precedents though.


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MariusV  Identity Verified
Lithuania
Local time: 19:24
English to Lithuanian
+ ...
TOPIC STARTER
the main problem Feb 20, 2015

Dear Chris,

Thanks, I fully understand what you mean. But here the problem is a) that this "agency" is actually a gang of criminals and they do not even care about copyrights, etc. - they cheated dozens of translators for tens of thousand pounds, there was even an article about their "practices" in a local newspaper - they do not care about anything, b) here it is not the case when "someone is just late to pay somebody" - from what I already got to know - they never ever even had any intention to pay. Let alone they are working under a "Phoenix company" scheme - they order jobs from one company (say, company "A") and undertake all financial liabilities in the name of it, and they have another company (say, company "B") and this company gets all income/payments from their clients. Now their "company A" is "under voluntary liquidation" as "insoluble", and these two companies are actually two different "legal persons" formally having nothing to do with each other (it means I cannot demand anything from their "company B"). Even if I go to the court of law (small claims court or like) to demand my money from "company A", I am afraid that even if the court decides they must pay me and even if I give this decision to a bailiff officer to enforce, I might appear as "Nr. 172" on their creditors list...I emailed them at least some 20 times offering a compromise and telling that otherwise I will go to the court of law (and this will mean lots of additional expenses, damage to their credit ratings, etc.), phoned them at least 10 times asking to speak to their managing director about the issue - and each time their managing director was "not in the office at the moment"...And the person who answers the calls told me in plain text - "Sure, it is your right to go to the court of law"...This is why I decided to write a letter to their end client (it is a UK governmental institution - a City Council) to tell about the situation and "practices" of this agency (just for them to know to what level of contractors they entrust their translation orders), and also wanted to mention that I am the actual "copyright owner" of the translation...


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Michael Wetzel  Identity Verified
Germany
Local time: 18:24
German to English
practically speaking ... Feb 20, 2015

I once got interested in this issue because of a Belgian deadbeat (my only such client [actually my client's associate] in over five years). Because of the nature of the specific case, it would have been difficult or impossible for me to successfully sue the party actually at fault (I could only have sued an intermediary, whom I considered equally a victim), so suing for breach of copyright looked like a very practical and effective way to get things done. I contacted a number of lawyers specialized in this kind of litigation, but none of them even hinted at being interested in taking up my case.

As the document cited by Robin makes clear, a lot of translations in a lot of countries are covered by copyright as derivative works. The translation cannot be used without both your permission and the author's permission and you are entitled to "moral rights" in the sense of copyright law. That also means that you can sue for damages if your work is used in violation of copyright.
As far as I know, the US is the only Berne Convention signatory with a work-for-hire clause, which allows freelancers/non-employees to sign over authorship of their work to their client (and this is in no way related to the German "Werkvertrag").

If your work qualifies for copyright protection under the laws of the relevant country (whatever that may be in this specific case), you could explain your case to some UK lawyers or lawyers from your own country and see if anyone is interested in pursuing the matter. You would sue the end client either for damages or to force them to remove your translation from public view and then the end client would be entitled to in turn sue the (bankrupt) agency that had sold them the work.


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MariusV  Identity Verified
Lithuania
Local time: 19:24
English to Lithuanian
+ ...
TOPIC STARTER
about small claims court Feb 20, 2015

One more question about small claims court (the UK) - how long everything takes, i.e. from the date of submitting a claim till the final decision adopted by the court? And is the decision of the claims court final? Or can it be "protested" to a higher level court? Asking this because I have no idea and I am worried that all those court procedures can take months, if not years, and during that time the debtor may cease to exist as such...

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Chris S  Identity Verified
United Kingdom
Swedish to English
+ ...
@Marius Feb 20, 2015

You're in a much more difficult position than I realised, but surely English law is flexible enough to deal with an obvious scam like that?

It doesn't seem right to sue the end-client though - what have they done wrong?

But you clearly need some expert advice, not the ramblings of an amateur... Good luck!


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RobinB  Identity Verified
Germany
Local time: 18:24
German to English
Moral rights have no real value in translation practice Feb 20, 2015

Michael Wetzel wrote: As the document cited by Robin makes clear, a lot of translations in a lot of countries are covered by copyright as derivative works. The translation cannot be used without both your permission and the author's permission and you are entitled to "moral rights" in the sense of copyright law. That also means that you can sue for damages if your work is used in violation of copyright.


I’m sorry to disappoint you, but enjoying the moral rights to a translation is not a realistically monetizable asset (except possibly where literary works are concerned). What really matters are the economic rights (German: Verwertungsrechte). These may be governed by contract or T&Cs, but are often not defined specifically. Absent any specific contractual arrangements, I think it can be effectively argued that there’s a rebuttable presumption that standard practice in the translation industry would apply, which is that translators implicitly assign the economic rights to the translation to their clients. It’s also worth remembering that, in a large number of cases (probably a considerable majority), the end-client also owns (or has been assigned) the copyright in the source text.

The upshot is that, absent any specific agreement to the contrary, the translation can most certainly be used (by the end-client) without the translator’s permission, regardless of whether or not they have been paid for it.

In turn, this is another sound reason why every translator should only ever work for agencies with good payment practice ratings on the various payment practices lists and forums. It’s very much a case of “caveat vendor".


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Michael Wetzel  Identity Verified
Germany
Local time: 18:24
German to English
I'll try to be more specific Feb 20, 2015

As I said myself, lawyers were not buying into my idea that using a translation without paying was an obvious violation of copyright and thus an effective path for litigation. So I don't really disagree with you (and am not disappointed) on that point.

It was other details that interested me:
On p. 101 of "Translation and intellectual property rights", the authors state:
"In Germany, the Federal Supreme Court has confirmed that translations in general enjoy copyright protection. According to the Court, a translation cannot be performed properly in a mere mechanic way: a certain degree of understanding and feeling for the language is required in order to express a text’s message in a different language. Concretely, it was ruled that even the translation of a comic’s speech balloons satisfy the originality criterion." Now that's a very one-sided presentation of the legal situation in Germany, but it's what the text has to say about the issue.

And you can't sell your copyright (status as "author" of IP) except, under special circumstances, in the US. What we sell when we sell translations that fall under copyright protection are "Verwertungsrechte" - even if no one involved understands that and it does not explicitly show up in a contract.

That is important, among other things, for determining the VAT rate and for the question of whether or not a translator qualifies for/is required to insure themselves through the Künstlersozialkasse (the question of whether or not a given translator is a "Publizist").


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