Authorship rights of translators of literary works in India

Introduction

Literature Nobel laureate Jose Saramago has remarked, “Writers make national literature while translators make universal literature”. The significance of translators has always been undermined; some of the greatest works would have never reached us, had it not been for the translators. Literature like Anna Karenina, One hundred of Years of solitude, the poems of Rumi, to name a few would never have been appreciated by the masses as they are now. Translating a literary work involves the intricate task of attempting to express literature from one language to another, which at times is a next to the impossible task given the fact that some expressions do not have an equivalent in other languages. Although a translation is based upon existing original work, the level of skill put in by the translators merits some degree of protection.

Even though the Berne Convention for the protection of literary and artistic works defines translations as original works^[1], liable to be protected as such, the level of protection available to translators differs across jurisdictions, and only a handful of countries like France grant the status of authors to translators. In most jurisdictions including India, translators do not have any statutory right of authorship in the works created by them. Even the TRIPS agreement has reserved no authorship rights to translators.

Can Translations be called original works?

The copyrightability of a work hinges on its ‘originality’. The construct of originality under the copyright law has a relatively lower threshold, and the traditional test to determine originality is the labor, skill and judgement that has been put in creating that work. For copyrightability, the translation’s originality is dependent upon the cognitive effort put in by the translator in converting a text from one language to another. This test is easily satisfied by the micro textual decisions made by the translator in the pursuit of translating the work. Even for very straightforward translations there are likely to be creative decisions about what terminology to employ^[2]. He/she might have to create new devices for lack of any equivalent ones which can even attempt to portray the true intentions of a work. Then there is also the fact that boundaries between different languages are not absolute, rather there are some sacred bonds between languages, and in order to perceive those bonds, the author must be well conversant with both the languages involved in the translation process. If the author is at home with both languages, only then can he mould the original into a new reality which must be a perfect fit of two cultural contexts.^[3]

Inspite of clearing the originality test, a translation is not ‘completely original’ as is what the Berne Convention is also trying to convey.

Art. 2(3) of the Convention provides, “Translations…… of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work.”

The use of the term “original” twice in this provision creates a contradictory situation. On one hand, it says that translations have to be protected as original works, and on the other hand, translations must not prejudice the copyright in the original work they are derived from. This seems to suggest that translation is an original work, which is subsidiary to and derived from a prior original work^[4]. The Berne convention thus recognises a homogeneous right to both the author of the source work and the author of the translation.

It is the basic tenet of copyright law that a copyright exists only in the expression of a work, and not in the idea underlying it. The original author’s literary work is an expression of his ideas, and a translation involves a different expression of that very same idea^[5]. The translator is not building upon the work of the author, rather he is conveying the idea of the author in a new expression. The author believes that a literary translation satisfies the originality test to be eligible for copyright protection.

Rights of Translators in India

India inspite of being a member of the Berne Convention since 1928, has not given any material effect to Art. 2(3) of the same.

As per section 2(d) of the Indian Copyright Act^[6], author in “relation to a literary or dramatic work means the author of the work.”

Section 13 of the Copyright Act^[7] lists the works in which copyright subsists in India,

 “copyright shall subsist throughout India in the following classes of works, that is to say original literary, dramatic, musical and artistic works; ….”

Section 14^[8] lays down the exclusive rights of authors in the works,

“For the purposes of this Act, “copyright” means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely:— …

(a) ..(v) to make any translation of the work;

(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi);”

A combined reading of section 2(d), section 13 and section 14 prima facie makes it clear that authorship is only conferred on the creators of “original literary work”. There is no provision which confers the status of an author on the translators of an original work. Also, as is clear from section 14, it is the owner of the copyright who can authorise the translations of such work. Further section 14(a)(vii) further gives an additional right to the author of the original work, to do all acts in relation to the translation created with his authorisation, as he could have done with his original work. This provision completely strips away any right that could have been enjoyed by the translator and vests them with the author. The translator does not have the right to reproduce the work, sell it, authorise adaptations, cinematograph films and all other such rights mentioned under section 14. He has been reduced to a mere contractual employee of the author, who is paid an amount of money for his efforts and then forgotten. In many instances, even the name of the translator is not mentioned anywhere on the books translated by him.

There have been a few instances wherein the courts in India have delved into the question of authorship rights of translators. In Hafiz P.H. Abdul v Abdurahim^[9], the Kerala High Court has held that “Even in translations, where brain, labour and skill have been used, or where some literary works are carried out, the person who did the said work in the translation is the author having copyright over the same”.

Translations can also fit under the category of derivative works. The Supreme Court in Eastern Book Company v D.B. Modak^[10] has considered what the standard of originality of a derivative work must be in order to treat the same as an original work. Here the court held that the question of whether a copyright exists in a derivative work would depend not just on the skill, labor and capital involved in the derivative work, but also the existence of a minimum level of creativity.

At present under the Copyright Act in India, translations may be protected as derivative works, only if they fulfil the criteria set in the above mentioned judgements. However this is not an adequate protection mechanism and it is pertinent that legislative amendments must be made to safeguard the translators rights.

Suggestions for the Indian Copyright Law

The French Intellectual Property code sets a good example with respect to authorship rights of translators, wherein translators have been made authors in their own rights, eligible to be protected under the French regime of ‘droits d’auteur’. This right however is subject to originality of the work and without any prejudice to the right of the authors in the original work. The code provides the following –“The authors of translations, adaptations, transformations or arrangements of works of the mind shall enjoy the protection afforded by this Code, without prejudice to the rights of the author of the original work^[11].”

The author proposes that the  Copyright Act of India should be amended on lines with the French Code, by making translators ‘authors’ in their work. A translator should be given the absolute moral rights of attribution and prevention of distortion of his work. With respect to economic rights, owing to the fact that the translation derives from an existing original work, without which it could not have existed, reserving the absolute economic rights of exploitation of the translated work to the translator would be unfair to the author of the original literary work. Thus, to remedy this situation, the author proposes that the translator should have all the rights of an author mentioned under section 14, like right to communicate the work to the public, authorise further adaptations etc, while reserving 50 % of the revenue generated from the same for the author of the original work. In this manner, both the translator and the author of the original work would be adequately compensated for their creative efforts.

^[1]Art 2(3) of the convention reads as, “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.”

^[2] Tanya Aplin & Jennifer Davis, Intellectual Property Law, Oxford University Press (2017)

^[3] Beatriz Zeller, On Translation and Authorship, Journal des traducteurs Translators’ Journal (2000).

^[4] Tong King Lee, Translation and copyright: towards a distributed view of originality and authorship, 26 THE TRANSLATOR, 241-256 (2020)

^[5] Salah Basalamah, Translation rights and the philosophy of translation Remembering debts of the original, 71 Translation Rights And History Of Translations, John Benjamins Publishing Company

^[6]The Copyright Act, 1957.

^[7] Ibid.

^[8] Ibid.

^[9] Hafiz P.H. Abdul v. Abdurahiman,1999(2) KLJ 686.

^[10] Eastern Book Company v D B Modak, 101 (2002) DLT 205.

^[11] Article L 112-4, French Intellectual Property Code.