Advice on the 'fair use' concept
Thread poster: xxxIlan Rubin
xxxIlan Rubin  Identity Verified
Russian Federation
Local time: 00:10
Russian to English
Mar 26

Dear All,

A Russian literary critic has published a book in Russian on Russian literature. This book contains quotes from Russian literature.
The critic's publisher now wants the book to be translated into English.
The Russian literature quoted in the book has by and large already been translated into English and published separately. The translators / publishers of the English versions of the literature or their descendants still own the copyright to their translations (all the translators are either alive or else died less than 70 years ago, and the foreign publishers still exist).

In some cases the volume of literature in the critic's book that needs to be translated into English could be up to 50 lines of poetry, but usually less. Usually, it's a small proportion of the entire translated literary work - though it may be a whole poem.

So does the publisher of the literary critic's new book require permission to use the already published translations of the literature in order to translate the book, or can it rely on the 'fair use' concept and avoid the hassle of obtaining permission? If they apply 'fair use' do they need to acknowledge the original translation? What if the original translation is amended, but not significantly (changed less than 30%)?

In case what I wrote isn't exactly clear, here is a simple example:

Russian Critic writes (in Russian)
"This is a clever poem by Pushkin: АБВГД"

Whereby "АБВГД" has already been translated into English.

Russian Publisher wants to publish (in English)
"This is a clever poem by Pushkin: ABCDE"

Whereby "ABCDE" is a translation by Smith, working for UK Publisher, who are still alive and in business, respectively.

But Russian Publisher doesn't want to have to contact Smith or UK Publisher for permission.

Many thanks in advance!


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Tom in London
United Kingdom
Local time: 22:10
Member (2008)
Italian to English
he has to Mar 26

https://janefriedman.com/permissions/

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xxxIlan Rubin  Identity Verified
Russian Federation
Local time: 00:10
Russian to English
TOPIC STARTER
Tom: Mar 26

Thanks Tom. Actually there are a lot of articles in the internet that basically say the same. But why is the situation that I have described not considered 'fair use'? The quality of the critical book being translated is not in the translations of the original literature, and nobody would buy it for that. The quality of the critical book is in the criticism that it contains (of the original Russian literature).

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Amel Abdullah  Identity Verified
Jordan
Arabic to English
+ ...
Commercial Profit Mar 26

I'm not totally sure, but I think the reason it's not considered fair use in the situation you describe is because a book is typically published for commercial profit. If the publisher stands to profit from the book, then they have to gain permission for these excerpts and pay the owners of the copyright if requested.

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xxxIlan Rubin  Identity Verified
Russian Federation
Local time: 00:10
Russian to English
TOPIC STARTER
Amel: Mar 26

Thanks Amel, but the site that Tom referred to says: "If the purpose of your work is commercial (to make money), that doesn’t mean you’re suddenly in violation of fair use."

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Amel Abdullah  Identity Verified
Jordan
Arabic to English
+ ...
The whole sentence: Mar 26

If the purpose of your work is commercial (to make money), that doesn’t mean you’re suddenly in violation of fair use. But it makes your case less sympathetic if you’re borrowing a lot of someone else’s work to prop up your own commercial venture.

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Mirko Mainardi  Identity Verified
Italy
Local time: 23:10
Member
English to Italian
+ ...
Commercial purposes Mar 26

ILAN RUBIN wrote:

Thanks Amel, but the site that Tom referred to says: "If the purpose of your work is commercial (to make money), that doesn’t mean you’re suddenly in violation of fair use."


However, it doesn't even say you're not... Actually, it seems to implicitly suggest that the use of copyrighted material for commercial purposes is 'riskier' than the use for nonprofit ones. Plus, I believe the author writing on that website is American.

From the US Copyright Office website:

"Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below." - http://www.copyright.gov/fair-use/more-info.html

From the Harvard University website:

"Noncommercial use is more likely to be deemed fair use than commercial use, and the statute expressly contrasts nonprofit educational purposes with commercial ones. However, uses made at or by a nonprofit educational institution may be deemed commercial if they are profit-making." - http://ogc.harvard.edu/pages/copyright-and-fair-use

However, concerning the UK, specifically:

"In contrast [to the US], the UK’s fair dealing copyright exceptions outline specific purposes for which a reproduction of a work is permitted, without requiring the copyright owner’s permission.

UK legislation states that a person is not liable for copyright infringement if the use amounts to fair dealing for the purposes of:

non-commercial research or private study
criticism or review
reporting current events
illustration for instruction, quotation, or parody, caricature or pastiche"
http://www.dacs.org.uk/latest-news/us-fair-use-uk-fair-dealing-differences-law

and

"Criticism or review
Quoting parts of a work for the purpose of criticism or review is permitted provided that:
The work has been made available to the public.
The source of the material is acknowledged.
The material quoted must be accompanied by some actual discussion or assessment (to warrant the criticism or review classification).
The amount of the material quoted is no more than is necessary for the purpose of the review."
http://www.copyrightservice.co.uk/copyright/p27_work_of_others

Your case seems to fall under "criticism or review"...


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xxxIlan Rubin  Identity Verified
Russian Federation
Local time: 00:10
Russian to English
TOPIC STARTER
Mirko: Mar 26

Thanks Mirko, I'm sort of thinking the same. But I would really like to find a discussion on the use of translation for this purpose as per the situation I described.

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Texte Style
Local time: 23:10
French to English
Your case seems to fall under "criticism or review"... Mar 26

ILAN RUBIN wrote:

Thanks Mirko, I'm sort of thinking the same. But I would really like to find a discussion on the use of translation for this purpose as per the situation I described.

As Mirko said, your case seems to fall under "criticism or review" since it's a book in which a critic reviews Russian literature. Of course this seems only to apply to UK law which may not interest you, but you didn't mention where the translated version was to be published.


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Mair A-W (PhD)
Germany
Local time: 23:10
Member (2016)
French to English
+ ...
Amount Mar 26

Fair use usually only allows you to quote short extracts. A few lines of the poem to make this or that point: fair use. The whole poem: not so much.

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Mario Chavez  Identity Verified
Local time: 17:10
English to Spanish
+ ...
Another monkey wrench thrown in Mar 26

Hi, Ilan,

I'm no literary translator, and my basic knowledge of fair use agrees with the main points raised by our colleagues. However, I can foresee another wrinkle: what if a particular poem has several English translations? Regardless of fair use, which translation to use? It seems like a thorny problem to me.


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xxxIlan Rubin  Identity Verified
Russian Federation
Local time: 00:10
Russian to English
TOPIC STARTER
Where published Mar 26

Texte Style wrote:


As Mirko said, your case seems to fall under "criticism or review" since it's a book in which a critic reviews Russian literature. Of course this seems only to apply to UK law which may not interest you, but you didn't mention where the translated version was to be published.


Potentially it will be published on Amazon and hence universally available. I'm no lawyer but I would think that the law of residence of the translation copyright holder could apply. Which could be anywhere.


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xxxIlan Rubin  Identity Verified
Russian Federation
Local time: 00:10
Russian to English
TOPIC STARTER
Yes and no Mar 26

Mario Chavez wrote:

Hi, Ilan,

I'm no literary translator, and my basic knowledge of fair use agrees with the main points raised by our colleagues. However, I can foresee another wrinkle: what if a particular poem has several English translations? Regardless of fair use, which translation to use? It seems like a thorny problem to me.


Thanks Mario - 😃.

Which translation to use can be decided by the translator depending on what best fits the critic's comments. Or the translator retranslates the poem drawing on all previous versions and makes enough additional changes so that none of the original translators can claim ownership...

Which might have to happen even when there was only one published translation. It's probably less hassle than gaining all the permissions if they really are required.


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Advice on the 'fair use' concept

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