Translation memory as intelectual property
Thread poster: Radka Crossley
Radka Crossley  Identity Verified
United Kingdom
Local time: 03:16
English to Czech
+ ...
Oct 6, 2010

Hi All,
this may already have been discussed on the forum but I need urgent advice and haven't managed to find anything relevant in the archives. The situation is that for many years I have been happily working for a translation agency and regularly sending them my TMs for the projects we worked on. I have now been informed that they've been bought off by another agency for which I will not work for under any circumstances. I have asked the original agency about this but obviously they may not want to give me, or even know the correct information. Do I have any right to these TMs as my intelectual property and can I request that they are not passed on to the new agency? Obviously they will be taking over a number of long-term contract for whicvh my TMs are crucial but if I don't want to do the work surely they cannot use them...
Any advice would be appreciated.
Regards,
Radka


Direct link Reply with quote
 

Michael Joseph Wdowiak Beijer  Identity Verified
United Kingdom
Local time: 03:16
Member (2009)
Dutch to English
+ ...
There is no agreement on this matter. Oct 6, 2010

Although it is actually a very important issue, most translators have probably never given it much thought.

See e.g.,

! http://www.transref.org/default.asp?docsrc=/u-articles/TMownership1.asp
! http://www.tausdata.org/index.php/tm-sharing-guidelines

http://www.telefonica.net/web2/rossko/TC%2009.pdf
http://www.mt-archive.info/Linguist-2008-Smith.pdf
http://www.fit-europe.org/vault/barcelone/Smith.pdf
http://www.localisation.ie/resources/Awards/Theses/Metrics%20for%20Evaluating%20Translation%20Memory%20Software.doc

It will basically boil down to two things: your ethical position on the matter & whether you have a good lawyer...

Michael


Direct link Reply with quote
 

Ralf Lemster  Identity Verified
Germany
Local time: 04:16
English to German
+ ...
Copyright issues under German law Oct 6, 2010

Good evening, Radka,
Michael is right: this is an issue that has been largely ignored for some time.

Actually, our colleague Astrid Cruse has written a thesis about copyright issues related to translation memories. She will discuss this at the upcoming RuhrKo conference.

Best regards,
Ralf

[Edited at 2010-10-06 23:09 GMT]


Direct link Reply with quote
 

Tomás Cano Binder, BA, CT  Identity Verified
Spain
Local time: 04:16
Member (2005)
English to Spanish
+ ...
What does your agreement with them say? Oct 7, 2010

Any agreement you may have signed with your original agency customer will have to be assumed by the acquiring company until termination of the agreement. If the agreement you signed with them says that you own no property or copyright on the translations (which is quite normal in our industry), then you will not have any rights on the memories.

Do you have such an agreement with the original agency?

(Edited for a typo).

[Edited at 2010-10-07 05:32 GMT]


Direct link Reply with quote
 

Sushan Harshe
India
Local time: 08:46
English to Hindi
+ ...
Eating a cake and having it too? Oct 7, 2010

Hi Radka,

1] How you created the TM? Because, you had the translation tool,

2] How the tool created the memory? Because you provided translation for the source.

3] How you provided the translation? Because, the source was provided to you.

4] Why you provided the translation? Because, you are paid for that job.

In any business; if you are paid for what you have done, you cannot claim your ownership on it.

This is just like eating a cake and having it too!

No matter what legal conditions exist or don't exist in any contract agreement with the payer for the work you did. Now it is (in given context it is TM) entirely there property.

Legally and ethically, translation cannot prevail over the source.

This is discussed in number forums here. One URL for reference, please check it! http://www.proz.com/forum/business_issues/487-translation_copyright_who_owns_the_translated_document.html


[Edited at 2010-10-07 09:02 GMT]


Direct link Reply with quote
 

Jabberwock  Identity Verified
Poland
Local time: 04:16
Member (2004)
English to Polish
Not really... Oct 7, 2010

Sushan Harshe wrote:

In any business; if you are paid for what you have done, you cannot claim your ownership on it.



That is wildly incorrect; in most countries copyright laws cover these issues and protect your ownership.

Just two obvious examples: if you write a book, you are paid for every single issue of it, over and over again (and till 70 years after your death). If you write a song, you are (supposed to be) paid each time the song gets issued or broadcasted.


Direct link Reply with quote
 

Stanislav Pokorny  Identity Verified
Czech Republic
Local time: 04:16
English to Czech
+ ...
Some thoughts Oct 7, 2010

Hi Radka,
to me, the situation should be quite clear: if you have received payments, the intellectual property rights are with your client. Also, in some contracts you will find a clause that prohibits the use of any resources provided to you by the contractor for any other purposes than to working for them.


Direct link Reply with quote
 
RobinB  Identity Verified
Germany
Local time: 04:16
German to English
LocWorld presentation Oct 7, 2010

Ralf Lemster wrote: Actually, our colleague Astrid Cruse has written a thesis about copyright issues related to translation memories. She will discuss this at the upcoming RuhrKo conference.


Interesting. Did you attend Abraham de Wolf's presentation on the topic at LocWorld in Berlin this year? He's a very experienced IPR lawyer (ex-SAP) and basically contends that, in the overwhelming majority of cases, the end client holds copyright to TMs because they contain the source text (to which the end client presumably holds copyright in the first instance) and the translation (for which the end client has at least bought the exploitation rights). Which of course runs a cart and horses through TAUS etc.

Give me a ring if you want to discuss this further.

Robin


Direct link Reply with quote
 
RobinB  Identity Verified
Germany
Local time: 04:16
German to English
There's probably nothing you can do Oct 7, 2010

Radka,

Absent any agreement to the contrary with the first agency, you have probably assigned any potential exploitation rights to the TMs you may have had under law to the first agency by the act of transferring them, with or without consideration. The first agency is therefore free to transfer them to an acquirer.

However, it is unlikely that you have any rights to the TMs other than certain "moral rights" to the target segments in the first place, which means that - again, absent any agreement to the contrary - you cannot prevent the TMs being exploited in any way. The evidently widespread belief that translators (or agencies, for that matter) hold copyright to TMs is a myth, according to an IPR expert I talked to earlier this year.

Note that nothing in this posting should be interpreted as constituting legal advice!

Robin


Direct link Reply with quote
 

Antoní­n Otáhal
Local time: 04:16
Member (2005)
English to Czech
+ ...
draw a line Oct 7, 2010

I translate, among others, books of fiction - this kind of work is diffferent from technical tanslations and contracts, etc. - the "creative contribution" (as it is usually understood) by the translator is higher (IMHO) for the books of fiction than for the latter. And my contracts with the publishing house are very specific about the copyright to the translation (which is mine in principle and I can agree with them on the terms and conditions under which they can use it).

I do not bother with such things regarding the technical, legal and similar translations. I am not saying they are easier (sometimes ther are, but sometimes they are much more difficult than fiction), but they are diffferent and I frankly do not think this kind of work does imply the copyright, unless explicitly agreed upon in advance. Of course, if you are nto paid for the translation, saying that the copyright is yours may be a leverage on a bad customer, but that is another story.

In other words, I am not sure about the legal status, but if a translator does not specifically require the copyright to them before the job is done, I doubt it they can get it for a past job (it may depend on a specific country). But most customers in this area would probably be shied away by such requirements, wouldn't they?

Antonin


Direct link Reply with quote
 
Radka Crossley  Identity Verified
United Kingdom
Local time: 03:16
English to Czech
+ ...
TOPIC STARTER
All good points Oct 7, 2010

Thank you everyone, all your points are valuable. I appreciate that it isn't comparable with artistic translation such as in Antonin's example, and one of you made a good point stating that a TM will contain the client's original which may also be copyrighted. I did now deed down that I probably can't claim any rights to it as such but just didn't really know whether the new agency has any rights to them.
But thank you for your input.
Radka


Direct link Reply with quote
 

Soonthon LUPKITARO(Ph.D.)  Identity Verified
Thailand
Local time: 10:16
Member (2004)
English to Thai
+ ...
Derivative works Oct 8, 2010

In Proz forum, we were introduced with the "derivative works" concepts. The case study was about a Chinese firm making software (though not the TM) out of an American firm's product being hired for a job. Legal discussions have been extended but contractual obligation commands: not all TMs belong to the client who paid you!

Soonthon Lupkitaro


Direct link Reply with quote
 

Gabriel Luis  Identity Verified
Spain
Local time: 03:16
Member (2008)
German to Spanish
+ ...
Translation and .tmx (or similar files) Dec 1, 2010

Hey all,
im pretty happy to see that the issue has been raising some attention among PROZs...
In the thread above I have observed that translation and tmx-file are often interchanged...

Obviously they are not the same. The question still remains who owns the tmx-file and/or for what price.
The German Bundesgerichthof has some jurisprundence related to this issue - well not exactly about "rights upon tmx files"-, but about what is the line dividing what belongs to the person who charges the translation under what conditions. I allow myself to quote the wording in German and give a Spanish translation of it, since I am unable to render it in proper English:

"Der Wille des Urhebers, dem Vertragspartner umfassende, über den unmittelbaren
Vertragszweck hinausgehende Nutzungsrechte einzuräumen, kann sich aus
einer Branchenübung nur dann ergeben, wenn sie Rückschlüsse auf einen entsprechenden
objektivierten rechtsgeschäftlichen Erklärungswillen der Vertragsparteien
erlaubt."
(Comic-Übersetzungen III, I. Zivilsenat -22.4.2004-I ZR 174/01, under:http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/list.py?Gericht=bgh&Art=en&sid=69185a9add3d87e0044622a71ab18be9)

"La voluntad del autor de conceder al socio contractual amplios derechos de uso que vayan más allá del objeto del contrato, tal y como dicho contrato se ha formalizado, sólo puede enmarcarse dentro de la práctica sectorial cuando dicha práctica permite reconocer la voluntad explanatoria correspondiente, objetiva y basada en ejercicio contractual entre las partes contratantes"
(Translated by Gabriel Luis, 1.12.2010).

The translation can obviously be improved, but from my point of view it illustrates the issue pretty well, i.e "what has been formalized in the contract is what counts." Thus, if the business issuing the translation wants to get the tmx file as part of the translation service, being the tmx-file is a derivative work, (s)he must state it will clearly on the paper. If the translator is allowed to charge something for handing the tmx-file over, remains open.
What do you think?
Salud(os)
Gabriel


Direct link Reply with quote
 


To report site rules violations or get help, contact a site moderator:


You can also contact site staff by submitting a support request »

Translation memory as intelectual property

Advanced search







Wordfast Pro
Translation Memory Software for Any Platform

Exclusive discount for ProZ.com users! Save over 13% when purchasing Wordfast Pro through ProZ.com. Wordfast is the world's #1 provider of platform-independent Translation Memory software. Consistently ranked the most user-friendly and highest value

More info »
Déjà Vu X3
Try it, Love it

Find out why Déjà Vu is today the most flexible, customizable and user-friendly tool on the market. See the brand new features in action: *Completely redesigned user interface *Live Preview *Inline spell checking *Inline

More info »



Forums
  • All of ProZ.com
  • Term search
  • Jobs
  • Forums
  • Multiple search