International conventions and recommendations
Why literary translators are authors
Copyright is based on the idea of originality: any new expression that is different from existing expressions, is considered the inalienable intellectual property of its author and, as such, enjoys automatic protection. Just like musical or dramatic performances, literary translations are in a double copyright situation: on the one hand there is the copyright of the original author, and on the other the copyright of the translator, who is the author of this particular translation, as distinct from all other possible translations of the same text. This is why the translator enjoys exactly the same legal rights as a writer. It also means that literary translation is not just work for hire, but a form of free expression: when signing a contract with a translator, a publisher is actually commissioning an original work that bears the stamp of its author.
Quoting from translations
In the European copyright system (which differs considerably from the American one) the limited right to quote brief passages from a published work is defined as an exception to the author’s and/or publisher’s exclusive right of diffusion. The way this exception is defined varies from country to country, but the main principle is laid down in EU Directive 2001/29/EC (https://eur-lex NULL.europa NULL.eu/legal-content/EN/TXT/?uri=celex%3A32001L0029) of 22 May 2001, which stipulates that ‘quotations for purposes such as criticism or review’ are permitted, provided ‘that, unless this turns out to be impossible, the source, including the author’s name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose’. In the case of translations, this means that both the original author and the translator must be named. The reproduction of larger fragments without permission of the rightful claimants is forbidden.
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Berne Convention for the Protection of Literary and Artistic Works
Article 2 of the Berne Convention (http://www NULL.wipo NULL.int/treaties/en/ip/berne/trtdocs_wo001 NULL.html) for the Protection of Literary and Artistic Works, signed by 164 contracting parties (http://www NULL.wipo NULL.int/treaties/en/ShowResults NULL.jsp?country_id=ALL&start_year=ANY&end_year=ANY&search_what=C&treaty_id=15) including all European countries, stipulates: ‘Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work.’ The same Article 2 defines the scope of the Convention: ‘The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression.’ In practice this means that not just translations of ‘high literature’ enjoy copyright protection, but all translations that bear the stamp of their author, including works of nonfiction.
UNESCO, 1973
Examination of copyright protection of translators
Nairobi, 1976
UNESCO Recommendation on the Legal Protection of Translators and Translations and the Practical Means to improve the Status of Translators
UNESCO’s Nairobi Recommendation (https://www NULL.unesco NULL.org/en/legal-affairs/recommendation-legal-protection-translators-and-translations-and-practical-means-improve-status) of 1976 gives individual states as well as actors in the field a concrete set of norms regarding translators’ legal position, remuneration, contracts, social and fiscal situation, and training and working conditions, the key principle being that translators should be afforded the same protection afforded to writers. This Recommendation is not binding in the legal sense, but the mere fact that it has been adopted by the General Conference entails obligations even for those member states that neither voted for it nor approved it. It provides a strong legal and moral framework for national organizations defending translators’ rights. [pdf]