As a freelance translator, do you have any rights regarding Copyright?

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 »  Articles Overview  »  Business of Translation and Interpreting  »  Business Issues  »  As a freelance translator, do you have any rights regarding Copyright?

As a freelance translator, do you have any rights regarding Copyright?

By traductorchile | Published  03/13/2012 | Business Issues | Recommendation:
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Quicklink: http://www.proz.com/doc/3539
Author:
traductorchile
Chile
English to Spanish translator
 
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As a freelance translator do you have any rights regarding Copyright?



Before going into business we must establish a few definitions:

- In English speaking countries Copyright relates only to the economic rights over a creation; the moral rights fall in the field of common law. In other countries like France, Spain and Latin American countries the term “Authors Rights” covers both economic rights and moral rights, so both terms aren’t quite equivalent.
- The author of a translation is he who creates it, with due respect to the rights of the author of the original text. The translator requires authorization by the original author to translate the text. A legal entity can’t be an author but it can buy some of the author’s rights.
- Economic rights mean that the author or his successors has the right to allow or disallow the commercial use of his creation. Both the original author and the translation author have these rights and further rights on any successive creations born from their creation (i.e. translations from the translation).
- Moral rights mean that the creator shall always be mentioned as the author of the work; he can object to modifications or deny its publication. Both the original author and the translation author have moral rights related to their creation, and all successive creations born from it.
- Owner of Copyright: can be the author or the person or organization that has acquired the economic rights from the author, limited by the conditions of his authorization.
- Work-made-for-Hire (Corporate ownership/authorship): work prepared by an employee within the scope of his or her employment. In this case Copyright ownership belongs to the:
- employer (US; Ecuador; Argentine, Venezuela, Holland*, Japan*, Turkey*, France*)
- employer but only if certified by a written statement that the authors are employees
(Chile)
- employer in absence of any agreement in writing in contrary (UK; Can; AUS; WIPO;
Guatemala, Costa Rica, Honduras, Nicaragua, Paraguay, Peru, Spain, Uruguay)
- in equal proportion between employer and employee (Mexico)
- employee in absence of a work contract (Mexico)
- employee in absence of any agreement in writing in contrary (Portugal*)
- Commissioned work (Contract for services): work done by a freelance translator. The copyright belongs to the:
- translator, unless a written limited cession transfers rights to the commissioner
(France)
- commissioner; there is an implicit limited non-exclusive license (contract) to the
commissioner (UK; US; AUS; Can; Ecuador; Argentine; Cuba; Peru; Uruguay;
Dominican Republic)
- commissioner; an implicit exclusive cession (Venezuela)
- commissioner; an implicit cession unless agreed otherwise (Panama; Guatemala;
El Salvador, Nicaragua, Paraguay)
- commissioner; an implicit cession if accompanied by proof of commissioned
work (Colombia8-9)
- commissioner, if the parties agree in writing that the work shall be considered as
“Work made for Hire” (US)
- commissioner, if the authors have received a payment by the commissioner (Chile).

- Non-exclusive copyright license: the author can benefit from his own use of his creation or
grant further licenses.
- Exclusive cession: the author cannot make any use of his creation or grant further licenses. All economic rights are transferred, all possible uses, in all territories, and permanently.
- Limited cession: limits relate to the amount or type of uses, the territory, the period length, etc.
- Implicit: means that the transfer of rights does not need to be expressed in writing, and that any limitation to this transfer should be expressed in writing if any limitation is allowed.
- Expressed: means that only those rights expressed can be transferred.
- Jurisdiction: a translator must file his complaint in that country where his creation has been used or where his complaint is enforceable; usually where the commissioner or employer is based. If they are both in the same country, depending on the country, he might be able to file a complaint in his own town.


In relation to moral rights, there is a great murkiness, because although obviously some rights must be waived (right to retract or prevent publishing) so that the acquirer can make full use of his economic rights, in some countries the waiver is spelled out in such a vague way that moral rights are lost completely, or moral rights are expressly transferred to the employer/commissioner or simply are considered his rights because he is considered the author (or creator), including attribution and the right to prevent alterations.


After reading all the above, you probably are already concluding some main points. Let me help you:
- You are a translator, an employee working in a company: unless you luckily work in Mexico or Portugal, the copyright over your translations and your “moral rights” belong to your employer. This should have a cost for the employer: you should be getting a better salary, social security and other benefits than if you didn’t waive your rights. In most countries there is no obligation to stipulate these in the contract, but it is advisable. If you have some space to negotiate, you might have your name published on your translations.
- You are a freelance translator: unless you negotiate your rights before accepting an assignment you may lose the possibility of limiting the loss of all your rights. With clients in many countries you don’t have the possibility of negotiating because your rights are implicitly transferred to the client without the possibility of bargaining. Either you accept the job or not.
If you accept a job as “Work made for Hire” for a client in the US you are waiving all your rights, and he should treat you as an employee: demand health insurance and social security (if you didn’t notice I’m being ironic).


In a freelance translation, who is the owner of the original text, the TM and the translated text?

- In all countries the copyright of the original text belongs to who created it, only he can translate it or allow someone else to translate it. This protection also covers “derivative works” like a translation or adaptation, which also are creations.
- A direct client, an agency or a company that wishes to translate a text must be the owner of copyright, either because he created it, he is the employer of who created it or he bought an authorisation (license) to translate it from its author.
- Although a client has a license to translate the original text, the creator or author of the translation owns the copyright over his creation so he is the first owner of that copyright; however, as the translator has signed a contract with the client where he agrees to deliver a translation in exchange for payment, according to the contract’s stipulations, he is delivering a second license to use the translation by his client who owns the first license to translate. The extent of this second license should be defined by the stipulations in the contract, and it doesn’t grant rights to the agency but to the end client (the agency is a mere middleman). But the laws in most countries rule that in commissioned work it is implied that full copyright rights (and even moral rights) are transferred from the translator to client, and in those countries where that transfer can be limited or non-exclusive it represents an exception, that is, it must be agreed in writing. If it is not agreed in writing the full rights belong to the client.
- According to copyright and “Author’s rights” laws a TM doesn’t exist. It is not mentioned anywhere related to copyright, as years ago computer programs weren’t mentioned. Is a TM a creation? Yes it is, because although it includes the original text, its function is to offer possible translations, your creations. Can we extrapolate from the copyright laws any element that might be considered an equivalent to a TM? I believe we can. With this in mind I’ll explore the similarities between a negative (for photography) and a TM (for translation).



The Business Process:
Assignments - Commissioned work
  Photography Translating/writing
- Original (Film/paper): CLIENT
- selects a subject.
- tells the photographer what he wants the images to express.
- pays the photographer to use his technical means to “shoot” the photograph when HE feels it is how the CLIENT wants it (the photographer creates something new through composition, lighting, etc. to produce the message the client wants).
CLIENT
- delivers a text.
- tells the translator who will be the readers and other instructions.
- pays the translator to use his technical means to re-write in another language how the TRANSLATOR feels is best (the translator creates something new, he chooses the words and gives them an arrangement with as much freedom as he believes adequate).
- Copyright - Photographer should consider possible future re-uses of the images when quoting as he will have to grant an exclusive or non-exclusive copyright license to the client. - Translator should consider possible future re-uses of the text when quoting as he will have to grant an exclusive or non-exclusive copyright license to the client.
- Negative / TM - photographer can make many copies (reuse).
- photographer is bound by “corporate image” and Brand issues so many images can’t be used by the photographer without the consent of the client (this should be taken into account when quoting on an assignment). This means selling the copyright to the client.
- translator can make many copies (reuse)
- translator is bound by confidentiality issues so many segments of a TM cannot be re-used without modifications.
- If the client demands that translator destroys the TM, translator should consider adding that fact to his quote according to the value that TM has for him.
- If the TM is modified to eliminate any confidentiality issue the translator doesn’t need the client’s permission to re-use the TM.
- Print/copy: - the client receives as many copies, or rights to use, as he has paid for. - the client receives as many copies (or reuses) as he has paid for)
- Value of the negative or TM - the photographer can resell photographs that are not Company/Brand-related unless the client has demanded exclusive rights. - the translator can benefit from suggested translations (fuzzies) in future jobs and some increased efficiency. This can be useful in technical and legal texts where many titles and contents are written in a standardized way. It is not very useful in creative translations.

 

Which would be your rights as an author of a translation?

1) You can allow your client to use your translation or publish it (when you accepted the job you gave him the right to use your translation after he pays you: you waive this right against payment);
2) You can limit the uses your client makes with your translation (some translations can have many uses and some uses might not be favourable for your reputation).
3) You can establish further fees if the client uses your translation for further uses (some translations can have many uses and some uses can be very profitable for a client, and for you):
- Commercial Publishing
- Republication
- Digital distribution
- Voiceover
- Dubbing
- Translation
- Advertising and promotional material
- Cinematography
- Website (in full or in parts)
4) You can demand that your name is published as author of the translation.
5) You can allow/deny any modification done to your translation.
6) You can allow/deny the use of your translation in separate or divided parts.
7) You can allow/deny its adaption to another format (audio, video)


Should I demand my rights with all my clients?

Of course, but not all translations deserve being subject to copyright. You should only consider negotiating your economic rights over those translations that might produce further future profits for your client. Either you establish it as your present fee or as a future royalty. With regard to your moral rights (authorship and integrity), I believe you should establish them as a prerequisite for any job that shall be distributed and/or published.
In the editorial field this practice is customary and the procedures are extensively accepted, although errors or abuse still occur. You should consider stipulating your rights in the event that further uses and profits may arise in the future (see http://www.bokorlang.com/journal/33copyright.htm).
Maybe you won’t be able to increase your fees as you might lose a client, but at least you can limit the use of your work (with the hope that another use might give you extra earnings), and maybe more important, you can enforce your “moral right” to be mentioned as author of the translation (something that can bring you more clients).



Which could be the value of your economic rights?

In General: Which is the future revenue you might expect from further uses of your work? Is there a market for it? Is it useful internally for your own work?
- Type of use: If a text is used in an advertisement or in a newspaper it will produce different revenues for the client. If a text will only be used internally by a company it will rarely produce additional revenue.
- Readership (audience) The amount of readers can reduce its value by limiting further readership while increasing revenue.
- Number of uses The same text or parts of it might be used for creating different products: Annual Report, leaflet, corporate CV, brochures, website, etc., and each one has an added promotion value.
- Print run As with readership it is directly related to revenue and burning of further use.
- Territory As with readership it is directly related to revenue and burning of further use.



REFERENCES

* This information was copied from: http://www.garridorengifo.com/bienvenidos/doc/El%20Derecho%20de%20Autor%20en%20las%20obras%20creadas%20por%20encargo%20y%20en%20el%20marco%20de%20una%20relaci%C3%B3n%20laboral.pdf without confirmation from the sources due to language barriers.


Argentine
1 http://ocw.unc.edu.ar/repositorio-especial/P.F
2 http://www.cerlalc.org/derechoenlinea/dar/leyes_reglamentos/Argentina/Argentina.htm

Australia
3 http://www.copyright.org.au/find-an-answer/

Bolivia
4 http://www.cerlalc.org/derechoenlinea/dar/leyes_reglamentos/Bolivia/Bolivia.htm

Canada
5 http://laws-lois.justice.gc.ca/eng/acts/C-42/page-8.html

Chile
6 http://www.dibam.cl/derechos_intelectuales/contenido.asp?id_contenido=1711&id_menu=36&id_submenu=1648
7 http://www.cerlalc.org/derechoenlinea/dar/leyes_reglamentos/Chile/Chile.htm

Colombia
8 http://www.derechodeautor.gov.co/htm/registro/literarias.htm

9 http://www.garridorengifo.com/bienvenidos/doc/El%20Derecho%20de%20Autor%20en%20las%20obras%20creadas%20por%20encargo%20y%20en%20el%20marco%20de%20una%20relaci%C3%B3n%20laboral.pdf
10 http://www.cerlalc.org/derechoenlinea/dar/leyes_reglamentos/Colombia/Colombia.htm

Costa Rica
11 http://www.cerlalc.org/derechoenlinea/dar/leyes_reglamentos/Costa_Rica/Costa_Rica.htm

Cuba
12 http://www.cerlalc.org/derechoenlinea/dar/leyes_reglamentos/Cuba/Cuba.htm

Ecuador
13 http://www.fedala.org/docs/introd_ip_asocine.pdf
14 http://www.cerlalc.org/derechoenlinea/dar/leyes_reglamentos/Ecuador/Ecuador.htm

El Salvador
15 http://www.cerlalc.org/derechoenlinea/dar/leyes_reglamentos/Salvador/Salvador.htm

España
16 http://www.cerlalc.org/derechoenlinea/dar/leyes_reglamentos/Espana/Espana.htm

17 http://www.boe.es/aeboe/consultas/bases_datos/doc.php?id=BOE-A-1996-8930

Guatemala
18 http://natlaw.com/interam/ar/ip/st/starip5.pdf
19 http://www.cerlalc.org/derechoenlinea/dar/leyes_reglamentos/Guatemala/Guatemala.htm

Honduras
20 http://www.cerlalc.org/derechoenlinea/dar/leyes_reglamentos/Honduras/Honduras.htm

México
21 http://www.cerlalc.org/derechoenlinea/dar/leyes_reglamentos/Mexico/Mexico.htm

Nicaragua
22 http://www.cerlalc.org/derechoenlinea/dar/leyes_reglamentos/Nicaragua/Nicaragua.htm

Panama
23 http://www.oepm.es/cs/OEPMSite/contenidos/ponen/sem_jueces_03/informes/panama.pdf
24 http://www.cerlalc.org/derechoenlinea/dar/leyes_reglamentos/Panama/Panama.htm

Paraguay
25 http://www.cerlalc.org/derechoenlinea/dar/leyes_reglamentos/Paraguay/Paraguay.htm

Perú
26 http://www.cerlalc.org/derechoenlinea/dar/leyes_reglamentos/Peru/Peru.htm

República Dominicana
27 http://www.cerlalc.org/derechoenlinea/dar/leyes_reglamentos/Rep_Dominicana/Rep_Dominicana.htm

UK
28 http://www.ipo.gov.uk/types/copy/c-ownership/c-employer.htm
29 http://www.ipo.gov.uk/types/copy/c-ownership/c-ownership-faq/c-ownership-faq-create.htm

Uruguay
30 http://www.cerlalc.org/derechoenlinea/dar/leyes_reglamentos/Uruguay/Uruguay.htm
31 http://www.mec.gub.uy/innovaportal/file/13981/1/industrias_creativas_y_propiedad_intelectual.pdf

US
32 http://www.copyright.gov/

Venezuela
33 http://www.cerlalc.org/derechoenlinea/dar/leyes_reglamentos/Venezuela/Venezuela.htm

WIPO
34 http://www.wipo.int/ip-development/en/creative_industry/pdf/868-es.pdf

Others
35 http://www.freelancer.co.uk/projects/Copywriting-Web-Promotion/Work-Made-For-Hire.html
36 http://www.google.cl/url?sa=t&rct=j&q=&source=web&cd=3&ved=0CD0QFjAC&url=http%3A%2F%2Fdialnet.unirioja.es%2Fservlet%2Ffichero_articulo%3Fcodigo%3D3704901%26orden%3D0&ei=OH9bT9PUH8Xj0QH8q4X6AQ&usg=AFQjCNH3n5-OmrNhaXImQPYL41x8iFQNJA&cad=rja



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