Derivative Works and Copyright
Questions regarding the extension of copyright protection to translations have generally utilized originality as the sine qua non of protection, as with general copyrights. The concept of what is or is not original about a translation, however, can be murky, and technological progress has further complicated legal issues. A recent report published by the European Commission on translation and intellectual property rights in the European Union examines these issues.
Though translation services typically fall under the same umbrella of legal protection as other “derivative” works such as adaptations, arrangements and alterations, they differ in that their content is by definition a re-approximation of the original in the target language. This is to say that unlike an adaptation, which legally alters a pre-existing work for a new purpose, a translation’s purpose is identical to the original’s and thus the originality requisite for copyright protection arises from the skill necessary to “re-create” the work in another tongue, maintaining the structure, phrasing, and expression of feelings. Therefore, one finds a dual meaning in the word original as used in Article 2(3) of the Berne Convention: “Translations… shall be protected as original works without prejudice to the copyright in the original work” (italics added for emphasis). The first original, as the report quotes from the World Intellectual Property Organization, “is in fact a synonym of ‘pre-existing’ or ‘non-derivative’” (98), meaning that translations shall be protected in the same way as “pre-existing” works are. In “…without prejudice to the original work,” the term refers to the pre-existing source of the translation, thereby explicitly clarifying the relationship between the source and the translation.
One in a Million | Copyright
So, does a translation automatically fulfill the condition of originality by the simple virtue of its creation or does a higher threshold apply to such derivative works? There are those legal scholars who would answer, “yes, translation is obviously original work,” such as D. Vaver, as quoted in the European report: “A good translator uses at least as much skill and judgment (although of a different kind) as the author of the source work”. Yet the authors of the report argue that the question is more complex than that. The potential for originality in a translation is inherently limited by its source. Though technical and mechanical sources do not necessarily exclude originality, the probability of the translator’s personality and choices being imprinted upon the work is far less than in literary or scientific works. On the other hand, the authors are quick to note that “…as a matter of law, the work’s merit or aesthetic do not matter when considering the question of copyright protection”. This is not to say that aesthetic never plays a role, simply that it typically has no legal ramifications.
There is a precedent in Europe, specifically the UK, for determining the originality of a derivative work based on evidence of skill and labor, as evidenced by Sawkins v Hyperion Records Ltd  1 WLR 3281, in which Sawkins, a musicologist, transposed music originally written by Lalande and edited it as necessary so that it could be read in modern notation. Though Sawkins did not add any new music to the original, it was ruled that his piece does in fact enjoy protection as a new musical work based on the skill and effort put into its creation.
Rise of the Machines
However, there is very little legal analysis or case-law available on the matter of where machine-aided translations fall in terms of copyright protection and who should be named the “author” of such translations. Machine-generated translations rely on databases of translation memories created from sources which were originally input by human translators and the resultant output typically requires careful editing by human translators. As a machine cannot be considered an “author” under IP law, the issue at hand is the ownership of these term databases. European Union law recognizes databases as collections of data which are systematically arranged and individually accessible, either by electronic or analog means. Translation memory files may therefore qualify, but some scholars argue that most will not, either in the EU or US, due to lack of originality in the arrangement of the database. Specifically, in the US, a simple collection of facts, such as telephone numbers or addresses, is not considered original if it is arranged in a simple and obvious manner, i.e. the facts are listed alphabetically or chronologically.
Ultimately, the question of who owns the copyright on machine-aided translations is open to discussion and the answer will necessarily vary depending on the type of translation. The EU recognizes the investment of skills and labor into a project as qualification for copyright protection; thus, word to word mechanical translations may not be covered. Moreover, the courts may recognize complex databases as having earned protection due to the skill required to create them and so even texts published elsewhere may be in conflict with European IP law if they are aided by certain databases. In the US, server location may play a crucial role in determining ownership of data, especially amidst growing complications due to the move to cloud-based computing.
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