Intellectual Property and Copyright: The case of translators

By Lenita M. R. Esteves, Ph.D.
Universidade de São Paulo, Brazil

leries@uol.com.br
http://www.accurapid.com/journal/33copyright.htm

It is common knowledge that authors have the right to protect their work against other people using it and profiting from it. What is less known to the public in general is that translators hold the copyright to the work they produce. This means that if I translate a novel, for example, nobody can make any commercial use of the text without my permission, and if anyone has the opportunity of deriving any profit from this use, I have a right to a share in this profit, and this right is protected and guaranteed by law. Copyright laws are reasonably similar in most western countries, since they are generally derived from international conventions such as the Bern Convention for the Protection of Literary and Artistic Works, signed in 1886. This international convention produced a document which was revised, amended and supplemented several times. The most recent version of the document dates from 1979, according the World Intellectual Property Organization's website (www.wipo.int). More than 150 countries have joined the agreement, including Brazil and the USA.

The fact that the law considers translations as creative works is somewhat surprising even to translators, who are used to social prejudice which undervalues their work in many ways.

Lawrence Venuti (1998), in The scandals of translation, discusses some internal contradictions of this law. According to him, the law is based on a romantic concept of authorship, which sees a written work of art as an individual creation, often the creation of a genius. Venutiґs hypothesis is that any text—and this includes literary texts—is a collective creation, and this undermines the traditional concept of authorship. In essence, what is protected by copyright is not the ideas, but the form they have been given. In other words, what can be plagiarized, copied, or stolen is the form, not the content. Therefore, as the translatorґs work is traditionally considered as recasting the authorґs ideas in a new form, the translator is considered a kind of author, or, if you prefer, a second-class author.

In this respect, Brazilian law has an interesting view of translation. According to "Lei dos Direitos Autorais" of February 19, 1998, a translation is an original work, albeit secondary. It is closely related to the original/foreign work, but it is an original creation. It is worth noting that, despite everything, the law can still be considered less conservative than the ideas of some translation scholars...

I have a personal experience related to this copyright issue, and I will report it now very briefly. In the beginning of the 90s I was invited by a Brazilian publishing house to translate The Lord of the Rings by J. R. R. Tolkien. I was responsible for the entire text in prose, and a colleague (Almiro Pisetta) translated the poems. The translation was completed in about 15 months, and the book had a good selling record, since the author has a considerable number of fans and admirers. (A previous Brazilian translation, published in the 70s, already existed, but the books sold out and the publishing house was extinguished. This is why a new translation was published.)

With the release of the film in 2001, the book turned into a bestseller overnight, undoubtedly bringing lots of profit to the publishing house, but not to the translators. By that time, several newspapers, magazines and websites contacted me asking for interviews, not exactly because I was an important part of the show, but because everything related to the film was considered newsworthy.

The idea of claiming a share in the profits popped up when someone commented that we the translators were probably getting really rich with the success of the book. Up to that moment, I was completely unaware of the existence of a law protecting my rights as a translator. After some consultations with lawyers, we decided to sue the publishing house, claming a share in the book sales. When I went to see the film, I was quite surprised to realize that all the subtitles in the Brazilian version had been taken from my translation. This includes several names that were translated or adapted and some lines of poems.

So we decided to sue not only the publishing house, but also Warner/New Line, which was responsible for the distribution of the film in Brazil. The reaction of each of the sued parties was very different, which shows the information and opinion each company had concerning translation copyright.

As soon as Warner/New Line was officially notified about the process, the companyґs lawyers contacted us proposing an out-of-court agreement: for a certain amount of money, we would sign a document selling all the translation rights to them. After some negotiation, this document was signed and we received 100 thousand reais, which would correspond to more or less 35 thousand dollars. At that time, I considered it a good agreement, since perhaps no other agreement had been signed on these terms in Brazil. However, when we read all the provisions, we realized that Warner/New Line was really clever to have this agreement signed as soon as possible, before we could have a clearer idea of what it meant in terms of money.

As you will be able to see in the text of the agreement, Warner/New Line anticipate so many situations and products in which the text of the translation could be directly or indirectly used, that in fact the sum they have paid to us is ridiculous.

As to the publishing house, they had a very different attitude. They scorned our claim and doubted we could achieve any success. They based all their argumentation on what they called "market practice," according to which translators are not paid for copyright, but only for the task of translating. In other words, the translator is paid only once, even if the book has many editions and turns into a super bestseller.

After some time the news was announced of victory in the first battle. The first judgment was rendered determining that the publishers should pay us 5% on the price of each book sold. They have appealed against it and we are waiting for a second judgment.

In the meantime, the publishers announced in the press they would be releasing a new translation, of course by a different translator. The reasons given for this new translation were the celebration of the author's anniversary of death and the opportunity to "correct some problems" in the current translation.

Of course many people—and this includes us, the translators—were not quite convinced, since the publishers themselves had on many occasions commented on the high quality of the translation. They even indicated that the text might be nominated for the Jabuti prize, one of the most important Brazilian literary awards.

As I see it, the publishing house is taking some steps to protect the future of its assets, in case they lose in Court and the present translation continues selling.

While all this was being reported in the press, one of the many Brazilian websites dedicated to Tolkien's work decided to form a task force (that is the name they give to their effort) to find all the possible translation mistakes.

But many doubts remain: most of the translated names have been widely adopted by Brazilian readers. What will happen to them? If they are maintained, it will be plagiarism. If new names are created or the original ones are used untranslated, Brazilian readers will have to be 're-educated' as to the characters' names.

To make a long story short, I would like to note one last point. The entire situation created by this judicial battle has prompted people to think about literary translation and its effects on Brazilian culture. Some people (mainly publishers) became angry at our attitude, while others are supporting our cause. Surprisingly enough, however, to some—including translators—this first victory was no victory at all, for it has sown suspicion and disagreement between translators and editors, damaging their professional relationship. It seems that some consider us dishonest for claiming a right that is guaranteed by law, specifically by an almost 100-year old Brazilian law.

The story has been told, but its end is still being awaited, indeed anxiously awaited by some. Anyway, I consider that this "fight" has already generated some positive results, which will result in better recognition of translators in their respective cultures.


This article was originally published at Translation Journal (http://accurapid.com/journal).

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