Copyright issue with posting translations of material found on the Internet
Thread poster: 564354352 (X)

564354352 (X)  Identity Verified
Denmark
Local time: 14:34
Danish to English
+ ...
Oct 17, 2013

I object to doing test translations and thought I had found a good solution instead: translating articles found on the Internet and posting them as translation examples here on my ProZ.com profile, clearly stating where and when I found the source texts. My intention has been to post updated examples within my major specialisation fields, and then when asked to do test translations, I would refer to these examples instead.
I have no interest in posting examples of work that I have done for paying clients, and in fact, I am under obligation to observe client confidentiality under Danish law, so I couldn't do this, anyway.

In another thread, I was asked whether I ask the authors for permission before posting translations of Internet-based articles, and that hadn't even crossed my mind. My thinking has been that if the material is freely available on the Internet, then it would be fair game to translate.

I would like to hear your views on this. Is this copyright infringement?

[Edited at 2013-10-17 04:12 GMT]


 

Sarah McDowell  Identity Verified
Canada
Local time: 07:34
Member (2012)
Russian to English
+ ...
Thanks for starting this topic! Oct 17, 2013

Hello Gitte and thank you for starting this topic. I have been told by many people that indeed we do have to ask permission before using the source text to make a sample translation. The reason is that the source text is not our intellectual property but our translation of it is our own intellectual property.

I am in the process of gathering interesting source texts to make sample translations of when I find the time for this kind of work. I cannot use the translations that I do for clients and get paid for as samples due to confidentiality reasons. However, the problem that I am having now is that nobody replies to my e-mail requests about using their source text. I usually send e-mails to the person who wrote the text or the website owner. So far nobody has bothered to respond. This is delaying the creation of my portfolio of translations. Any advice in my situation would be appreciated.

Thanks,

Sarah

[Edited at 2013-10-17 05:20 GMT]

[Edited at 2013-10-17 05:21 GMT]


 

Joakim Braun  Identity Verified
Sweden
Local time: 14:34
German to Swedish
+ ...
Not "fair use" Oct 17, 2013

Whether material is on the Internet or not has no bearing on its copyright status.

Using copyrighted work for sample translations doesn't sound like "fair use" to me. Though in practise, if the excerpts are very short. I doubt you'll have any trouble.


 

Rossana Triaca  Identity Verified
Uruguay
Local time: 09:34
Member (2002)
English to Spanish
Internet Copyright Oct 17, 2013

The fact that something is published on the Internet does not make it public domain; the applicable copyright laws vary depending on the citizenship of the copyright holder, the country of the hosting servers or of the company running those servers, the terms of use of said sites, etc. etc., and they can even potentially involve the ISPs, I kid you not.

As Sarah said, the best policy is to ask permission of the current holders, but this poses not only the difficulty of contacting them, but also of making sure they are actually the real copyright holders... sometimes this is easy to establish, but perhaps you happily take a yes for an answer from a company employee who couldn't, in fact, give any such permissions...

I always like to encourage everyone to learn more about the subject heading over to Creative Commons, a non-profit organization that promotes tiered copyright licenses that include one type that is exactly what you're looking for (i.e., allows derivative works for commercial use).

BTW, Wikipedia works on such a CC license, so you can translate any entry there to your heart's content! (as long as you attribute the original source).




[Edited at 2013-10-17 06:10 GMT]


 

Tim Friese  Identity Verified
United States
Local time: 07:34
Member (2013)
Arabic to English
+ ...
Lot of information about fair use Oct 17, 2013

Joakim Braun wrote:

Whether material is on the Internet or not has no bearing on its copyright status.

Using copyrighted work for sample translations doesn't sound like "fair use" to me. Though in practise, if the excerpts are very short. I doubt you'll have any trouble.


I am not a lawyer and I do not pretend to give legal advice.

The US has an idea known as "fair use" which describes the factors governing whether a certain use of copyrighted material can be used or not:

http://fairuse.stanford.edu/overview/fair-use/four-factors/
Unfortunately, the only way to get a definitive answer on whether a particular use is a fair use is to have it resolved in federal court. Judges use four factors to resolve fair use disputes, as discussed in detail below. It’s important to understand that these factors are only guidelines that courts are free to adapt to particular situations on a case‑by‑case basis. In other words, a judge has a great deal of freedom when making a fair use determination, so the outcome in any given case can be hard to predict.

The four factors judges consider are:
  • the purpose and character of your use

  • the nature of the copyrighted work

  • the amount and substantiality of the portion taken, and

  • the effect of the use upon the potential market.

Let's look at these one by one:
  • the purpose and character of your use
Was value added to the original by creating new information, new aesthetics, new insights, and understandings?

Copying a source and giving a translation has this crucial and "primary" feature of adding new information - the target language!
  • the nature of the copyrighted work
Because the dissemination of facts or information benefits the public, you have more leeway to copy from factual works such as biographies than you do from fictional works such as plays or novels.

I interpret this to also mean that the English-speaking public has an interest in Arab opinions, and so translating portions of them benefits the public good.
  • the amount and substantiality of the portion taken
The less you take, the more likely that your copying will be excused as a fair use. However, even if you take a small portion of a work, your copying will not be a fair use if the portion taken is the “heart” of the work. In other words, you are more likely to run into problems if you take the most memorable aspect of a work. For example, it would probably not be a fair use to copy the opening guitar riff and the words “I can’t get no satisfaction” from the song “Satisfaction.”

For this exact reason I translate excerpts only of news articles with links to the original.
  • the effect of the use upon the potential market.
Another important fair use factor is whether your use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work. Depriving a copyright owner of income is very likely to trigger a lawsuit.

One could argue that my English translations of the foreign press deprive them of the potential market of posting English translations of their own. On the other hand one could aso argue that my English translations drive traffic and brand awareness that the periodicals would never have had.
My non-legally trained opinion is that there is significant room for fair use in posting translations of published works on our professional websites.


 

Marie-Helene Dubois  Identity Verified
Spain
Local time: 14:34
Member (2011)
Spanish to English
+ ...
when does it get to the point Oct 17, 2013

where you're investing so much time in this research that it would have been wiser just to spend half an hour doing the test translation in the first place?

(sorry...just being devil's advocate)icon_smile.gif


 

Rossana Triaca  Identity Verified
Uruguay
Local time: 09:34
Member (2002)
English to Spanish
Advocatus Dei Oct 17, 2013

(...) it would have been wiser just to spend half an hour doing the test translation in the first place?


Well, on one hand after this research you're bound to be more educated about copyright laws (a must for translators, since we make a living selling the copyrighted sweat of our brows) and surely find several irreproachable samples from varying topics that you can use commercially with complete peace of mind (legally and ethically speaking, and even, dare I say... karmically?). I'll go even further; she may even end up contacting someone who actually would appreciate very much to have some content translated for free, and will happily refer her services to other people. Everything in this scenario speaks for career development and brand marketing.

On the other hand, we end up with a sample that only benefits the agency, that you probably cannot reuse (if you agreed to its confidentiality or you have a blanket NDA in place), and that will probably never be attributed back to you...

I'll take canonization any day ending with Y!icon_smile.gif

(BTW, really interesting post by Tim, although unfortunately "Fair Use" is a doctrine that simply does not exist in many countries, including Denmark where Gitte is from as far as I know, although I think Europe has a new Directive about it in the works).

[Edited at 2013-10-17 07:46 GMT]


 

Marie-Helene Dubois  Identity Verified
Spain
Local time: 14:34
Member (2011)
Spanish to English
+ ...
advocatus diaboli II Oct 17, 2013

Rossana Triaca wrote:


On the other hand, we end up with a sample that only benefits the agency, that you probably cannot reuse (if you agreed to its confidentiality or you have a blanket NDA in place), and that will probably never be attributed back to you...




the sample/test benefits you too though if you end up passing it and acquiring a new client as a result (especially if that client sends you lots of work)


 

Samuel Murray  Identity Verified
Netherlands
Local time: 14:34
Member (2006)
English to Afrikaans
+ ...
Fair usage must be "fair" Oct 17, 2013

Gitte Hovedskov, MCIL wrote:
I thought had found a good solution instead: translating articles found on the Internet and posting them as translation examples here on my ProZ.com profile, clearly stating where and when I found the source texts.

I was asked whether I ask the authors for permission before posting translations of Internet-based articles, and that hadn't even crossed my mind. My thinking has been that if the material is freely available on the Internet, then it would be fair game to translate.


Well, laws differ, but in general you can only use someone else's text if you have permission to do so or if your use of it is considered "fair usage". There are no hard rules about what fair usage is, but things that make usage less fair would include:

* if you're using a large portion of that text
* if your use consists largely of that text
* if you enjoy commercial gain from using that text
* and if your use reduces the commercial gain of the original author

[Don't forget that the word "commercial" here is a legal term that may not have its normal meaning. In some countries, "commercial" in intellectual property rights includes things like charity and ideology, so that in those countries using a text to promote a religion, an idea or a charitable cause may also be considered "commercial" gain, even if there is no money involved.]

In addition, some countries recognise the moral rights of authors, which must also be considered (e.g. if your use of the text might imply that the original author also agrees with other sections of your publication, which would impact on the reputation of that author).

In your case, you clearly have commercial gain from using these texts: although no-one is paying you for translating them, you are using them to gain clients that pay for your services.

And in your case, those texts form a very large part of the portfolio section of your profile page. And in your case, you use practically the entire original text.

The guidelines above appear pretty simple to apply, but they are not. In your case, the fact that some of your samples were published in print media (newspapers?) for the purpose of information and not as literary masterpieces may make it acceptable for you to use them. Your piece from the museum publication does not adversely affect the original author because you're not using it for promoting a competitor of theirs.

And you're not taking away any traffic from the publication that published that interview (or are you? -- don't forget: anyone doing a Google search for it might come across your portfolio instead of the original author's own web site, since ProZ.com pages have a high page ranking).

A common strategy that translators use when translating such samples is to ensure that the text they use is already licensed appropriately, e.g. as GPL or as Creative Commons. One way to do that is to take text from Wikipedia, because all Wikipedia content is licensed in a way that makes it legal for you to reuse it, even for commercial gain.

Otherwise, you have to get permission from somewhere. Try the public relations officer of the publication that you're taking the article from. Or try asking the webmaster of that site where the one text is hosted if you can use the text in exchange for a link to his site.

Samuel

[Edited at 2013-10-17 09:02 GMT]


 

Rossana Triaca  Identity Verified
Uruguay
Local time: 09:34
Member (2002)
English to Spanish
Advocatus Dei Oct 17, 2013

the sample/test benefits you too though if you end up passing it and acquiring a new client as a result (especially if that client sends you lots of work)


If you pass, and if they get back at you (not necessarily linked), and if you agree about rates, and if you are available at the time, then yes, work may materialize if the client actually gives the go-ahead. There's a great many ifs in that sentence...

I do not object to test translations in general (I've done many that have resulted in long, fruitful relationships); only that now I follow a very strict selection criteria for them (although this would be material for a whole other thread). The proverbial straw that broke the camel's back in my case was the third time an agency used my test translation to net a client and then swiftly assigned the actual job to someone cheaper.

All in all, I do think working on your personal brand has more value, although it's a benefit that can only be seen in the long run.


 

Sheila Wilson  Identity Verified
Spain
Local time: 13:34
Member (2007)
English
+ ...
Newspapers or magazines? Oct 17, 2013

Have any of the originators you have contacted been magazine or newspaper publishers? I would have thought that they ought to be geared up for such enquiries and to know exactly what the laws are. They also might be interested in having their texts linked to from your site.

 

564354352 (X)  Identity Verified
Denmark
Local time: 14:34
Danish to English
+ ...
TOPIC STARTER
No real consensus, as far as I can see Oct 17, 2013

Thanks for all your helpful comments, I really appreciate this very much.

From what I can make out, nobody really knows for sure whether what we are talking about is a general case of copyright infringement, as there are so many variables depending on the material we choose and what we use it for. And although Tim's explanations are excellent, I still think that 'fair usage' is quite a flexible concept.

I am now wavering between thinking on the one hand that as long as nobody tells me otherwise, I will presume that it is a 'safe' practice to do what I have been doing, clearly stating my sources, and on the other hand considering contacting the people who publish materials that I would like to use as translation examples and ask for their permission to do so.

I like the idea that in doing the latter, this could actually be a direct marketing opportunity as I could offer 'suppliers' of text material my translations for their own websites. Very interesting idea.

And just one more thing, in response to Marie-Helene's question about why I would go to such lengths to avoid doing test translations (not your words, my interpretationicon_smile.gif): It is partly a matter of principle, I simply don't like the idea of working for free, and I don't like the arrogance of agencies who ignore my many years of experience and think they still need to assess my work. I also think that doing translations that are of no further use to me for free is a complete waste of time. My thinking is simply that if I can direct interested clients to texts I have already translated, and which I consider to be representative of the standard of my work, that should be sufficient for them (if they are professional linguists) to determine whether I match their requirements. Any agency that is not capable of assessing my language skills based on such work would not really be worth working with, anyway.


 

Thayenga  Identity Verified
Germany
Local time: 14:34
Member (2009)
English to German
+ ...
As a rule of thumb Oct 18, 2013

Any writing or music posted on the Internet to be shared with the public to read or to listen to, still remains the intellectual property of the author. Therefore, any use other than the intended use infringes copyrights. This even includes every single forum post here or anything you have entered on your profile or web page.

Make it a rule of thumb to always, always ask permission prior to using anything posted on the Internet or elsewhere. It's always better to be safe than being sued.icon_wink.gif


 

564354352 (X)  Identity Verified
Denmark
Local time: 14:34
Danish to English
+ ...
TOPIC STARTER
I wonder... Oct 18, 2013

... how many ProZ.com users who have posted translation examples on their profiles have actually obtained permission from the source text copyright holders before posting?

In a sense, it does seem more honest to me to post translations with clear source references than to post 'anonymous' translation examples based on source texts, which will, per definition, also belong to copyright holders...

Just a thought...


 


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