Arts Law is sometimes contacted for advice about the copyright issues involved in making and commissioning foreign language translations of literary works. For example:
- the translator of an article contacted us for advice about how the author of the original article could use his translation.
- a playwright, who was commissioning someone to translate her play into another language, called to find out what issues she should consider.
- a visual artist intending to translate some songs into another language for use in conjunction with a multi-media artwork wanted to know what kind of permission he needed.
As the copyright owner of a literary work, you have the exclusive right to make adaptations of that work. This means that if someone wants to make a translation of your work, for example from English to Italian, they will need your permission to do so. An unauthorised translation will constitute infringement of your copyright in the work.
Giving Permission to Translate Your Work
If you give someone permission to translate your story, poem or song lyrics into another language, the translator will generally own copyright in the translation, unless you agree otherwise in writing. However, the translator's rights only extend to the translation and not the original work. You continue to hold copyright in the work you created, and the translator will have a range of rights in his or her work.
While the translator may own copyright in his or her translation, their rights are limited by the scope of the licence (permission) you granted the translator to make the translation. So, if you give someone permission to translate your short story specifically for publication in a foreign-language community newspaper, and in fact they offer it for sale as part of an anthology of works, they would be infringing your copyright.
If you give someone permission to translate your work, without specifying or limiting the use that can be made of the translation, it may be difficult for you to later stop the translation from being used in a certain way. You would need to show that the surrounding circumstances and the conduct of the parties when making the agreement imply permission was given only to make the translation for a particular purpose. The translator, on the other hand, would try and establish that you gave him or her unlimited permission to make and use the translation.
Commissioning a Translation
If you are commissioning a translation you will generally want to own copyright in the translation, and the commission agreement should confirm this. If, however, the translator retains copyright, then the agreement should specify what uses you can make of the translation.
The commission agreement should address issues such as how much the translator will be paid, when the translator will be paid and when the translation will be completed. A translator will have moral rights in his or her translation, and the agreement should indicate how he or she will be acknowledged and what editing rights, if any, you will have in relation to the translation.
What Type of Permission Do You Need to Make a Translation?
If you are seeking permission to translate a literary work, there are a number of issues you should consider. The first step is to find out who owns the translation rights in the work. Publishing contracts usually require authors to grant the translation right to the publisher. So, if the work has been published, you will generally need to negotiate directly with the publisher.
Confirm whether you are obtaining an exclusive or non-exclusive licence to make the translation. If you are granted an exclusive licence you are the only one who has the right to use the work in the ways set out in the licence. For example, you may be the only person authorised to translate a play into French. If, on the other hand, you are granted a non-exclusive licence, the copyright owner can grant similar licences to other people who want to use the work. You can make a French translation, but so can anyone else who obtains the necessary permission.
Clarify whether the scope of the licence is limited by territory, time or by the language into which you are permitted to make the translation.
Specify what use may be made of the translation. If it is a book this may include publishing and selling. If it is a song it may include recording, including on a CD and using it for publicity purposes. If it is an essay you may want to display it on a website. It is important to be clear about whether you are getting the rights to use the work online, or whether your rights are restricted to print use only.
Consider what fee, if any, you must pay in exchange for permission to make the translation. It may take the form of an up-front licence fee, a royalty payment or a combination of both.
- Specify how the author of the original work will be acknowledged, and obtain their consent to any specific acts, such as substantial editing, that could otherwise amount to an infringement of their moral rights in the work.
Arts Law always recommends that you confirm the arrangement in writing.
The following organisations may be able to assist you in tracking down the author or publisher:
- Copyright Agency Limited: (02) 9394 7600 www.copyright.com.au
- Australian Society of Authors: (02) 9318 0877 www.asauthors.com.au
- Australian Performing Right Association: (02) 9935 7999 www.apra.com.au
- Australian Publishers Association: (02) 9281 9788
Alison Davis was a Legal Officer at Arts Law.