Steeming and copyright: some words about translation

 Dear Steemit community!

 Short introduction. Reading posts on Steemit, I sometimes meet in the  notice of a notice of copyright infringement. Often the author of the  post sincerely perplexed what he did wrong. Unfortunately, this happens  especially often with steemers from the countries of the former USSR.  But this does not mean that steemers from other countries never admit  such copyright infringement. I'm sure they do it unintentionally. Just  copyright law is very complicated. 

 Today I want to offer you my own reasoning on the subject of copyright  for translation. Although I was based on the legislation of Ukraine,  many rules are common for most countries, because, like Ukraine, they  are members of the Berne Convention. 

 Today,  in terms of not only economic, but also cultural globalization, the  problem of translated literature is becoming increasingly important.  Works of authorship are not only a means of satisfying intellectual and  cultural needs of society, but also an inspiration to others who create  their own works based on existing (such works are called derivatives).  

 The  issue of copyright to the derivative works is interesting, but poorly  explored in modern legal literature. The Law of Ukraine "On Copyright  and Related Rights" dated December 23th, 1993 (hereinafter - Copyright  Law) defines derivative work as a work that is a creative remaking of  other existing work without prejudicing the existing work’s protection  or a creative translation thereof into another language. Therefore, we  can define two grounds of derivative works: re-making and translation. 

 According  to the Article 433 of the Civil Code of Ukraine (hereinafter - CC),  translations are the copyright objects. At the same time, Article 441 of  CC refers translation for use of works, which, according to Article 443  of the CC, shall be carried out only with the consent of the author,  which corresponds to Article 8 of the Bern Convention on Protection of  Works of Literature and Art, according to which the authors of literary  and artistic works shall have the exclusive right to translate and allow  translations of their works. Thus, the translation should be understood  in two ways: as a copyright object and as a type of work use. 

 In  the theory of translation, depending on the genre and stylistic  features of the original work, art (literary) and information (special)  translations are distinguished. Since the Copyright Law specifically  emphasizes the creative nature of translation, which is subject to  copyright, it is art (literary) translation that is considered by the  author of this article as an object of copyright. As for the special  (information) translation, the possibility of referring it to the  copyright objects must be determined separately every time, based on the  characteristics of the original work. 

 In  terms of he possibility of creation of a copyright in the so-called  lineal translation, such translation can not be considered as subject to  copyright, as it is actually mechanical selection of necessary word,  even if it is required to choose one of several synonyms. 

 It  should also be noted that today the right to translation applies only  to traditional human languages, although attempts were made to justify  the applicability of copyright law concept to the right to translation  in case of "translating" software from one computer language into  another. However, one should agree that the translation of computer  programs from one machine language to another, due to the limited  possibilities of programming languages, would comprise not repeating the  form, but content (certain schemes, algorithms, etc.)[2, p.125]. 

 Art  translation can be regarded as a form of literary art that is an  artistic fact, and the process of art translation creation is very  similar to the process of artistic creation [5], which actually makes it  subject to copyright. 

 Depending  on the work being translated, the translation may be the most close to  the original (in translation of prose works) or actually be a new work  (in translation of poetry). As for the translation of poetic works, the  situation here can be the most accurately described by aphorism:  translator of prose is a slave, translator of poetry is a rival. But  prose translation can also have significant features, depending on the  translated text. The choice of the basic principle, according to which  translation will be done, to some extent may depend on the position of  the work author. But, in any case, the translation must convey content  and style of work as accurately as possible.  

 Thus,  translator's copyright is largely determined by the fact that the  translation process requires not only creative mastery of another  language, but considerable efforts aimed to convey truthfully the  author's opinion, mood and style of work.  

 Article 20 of the Copyright Law stipulates that  translators shall have the copyright to translation made by them. However,  such right is conditioned by respect for the rights of the author,  whose work was translated. So, in practice the basis for lawful  translation is contract.  

 The  translation of a work has a number of consequences for its author.  Thus, the translation of a work can help to expand scope of work use, to  increase the popularity of the author, to cover a wider audience, so,  as a rule, authors are interested in publishing their works in another  language. On the other hand, a bad translation can cause the opposite  effect, sometimes it actually distorts a work. So, the important fact  for the author is not only the translation of work in another language,  but the question of who and how will do it. Thus, the contract for  translation, among other things, should  include coordination of the  final appearance of the work with the author,whenever possible. Since  assessment of translation quality in practice can be very difficult for  the author, in order  to avoid conflicts, it is advisable to immediately  provide a means of the translation quality assurance during the  preparation of the contract with the author [2, p.124]. Usually, to  assess the quality of translation in Ukraine, the Standard of the  Translators Association of Ukraine is used, which relates to the  translation quality such parameters as matching the original text  content, meaning, style and design, absence of grammatical errors,  adequacy, etc. [1]. Degree of the interpreter's dependence of the  original text should also be established separately, as the attitude to  this issue among the authors of original works can be different. In  particular, the famous writer V.Nabokov denied free translation, which,  in his opinion, leads to a distortion of the original text, so the only  virtues of a good translation, in his opinion, should be its correctness  and adequacy to the original [4]. 

 Speaking about the features of copyright for translators,  it should be noted that, first, it does not prevent other persons to  perform their own translations of the same works; second, translator's  copyright is protected separately, without limiting the rights of the  author of the initial (original) work; thirdly, the translator acquires  copyright in translation made by him only provided that the translation  is based on the permission of the author of the initial (original) work. 

 Speaking  about the issues that arise with regard to copyright in the  translation, we should pay attention to difficulties related to  protection of rights in case of plagiarism, the proof of which is in  this case is extremely challenging. As D.Lyptsyk rightly noted, on the  one hand, a good translation always reflects the personality of a  translator, acquiring features of independent work. At the same time,  different translations of the work always come from the same original  text, therefore, it can be very difficult to prove plagiarism or illegal  use of a translator efforts. In practice, some translators,  anticipating such situations and trying to secure their ability to prove  the illegal use of their translations, are using specific techniques  that are, for example, knowingly allowing a minor, but very revealing  errors, which are, when found in any other translation, the evidence of  illegal use of translation made by those translators [3]. 

 Possibility  to refer translation to the copyright objects depends also on the  nature of the work being translated. If the original work refers to  objects that are not copyrighted based on lack of creative nature,  including vehicle timetables, broadcasts schedules, telephone  directories, etc., the translation also can not be regarded as an object  of copyright. At the same time, we believe that when it comes to works  that are not protected (particularly works of folklore), the translator  must acquire copyright. Thus, despite the fact that translation refers  to derivative works, teacher's copyright may both be a derivative of the  copyright in the original work, and have an independent character. 

 References:1.  Biryukov A.  Development of methods for assessing the quality of  machine translation based on the results of studies in assessment of the  traditional translation quality / A.Biryukov // Culture of Black Sea  region. Series:  Philological Sciences. – Simferopol: TNU, 2004. – № 55.  – p. 100-105.2.  Kalyatin V.O. Intellectual property (exclusive rights). Textbook for  high schools. – M.: Publishing House NORMA (Publishing Group NORMA-INFRA  M), 2000. – 480 p.3.  Lyptsyk D. Copyright and Related Rights / Transl. from French.;  foreword of M. Fedotov. – M.: Ladomir; UNESCO Publishing House, 2002. –  788 p. – p. 984. Nabokov V. Foreword to «A Hero of Our Time» [Electronic resource]. – Access mode: http://lib.ru/NABOKOW/Lermontov.txt 10.08.2010 р. Title from the screen5. Pogynaiko O.P.  Auto translation as a special type of translation [Electronic resource]. – Access mode: http://www.nbuv.gov.ua/portal/soc_gum/naukma/Fil/2007_72/09_pogynaiko_op.pdf 10.08.2010 р. Title from the screen 

Thank you @inber for picture for this post :)