Literary Translation – Part 1: Translation as Re(creation)

by: Fairouz Qoulaii

he purpose of this article is to highlight literary translation as a practice, to reveal the role of translators and to illustrate the issues arising from works protected by copyrighted or from the public domain.

First of all, the translator is the cornerstone of the universality of the work, which is no longer limited to the writer’s original language: “to translate well is to transmit a foreign text while respecting its triple specificity: linguistic, textual and cultural. [The literary translator has thus become a mediator of cultures” (Free Translation, Wuilmart, 1994: p. 251). 

Translation : the highlights

Translation involves a very broad reflection in order to find a third place for the original text while preserving the richness and cultural variations of the languages. In other words, it is the art of bringing together distant landscapes, crossing time and creating a common and universal space where the translated work in question can rest without linguistic or cultural constraints. 

The translator’s primary function is to address readers who do not master the source language of the original work. He/she, under the guise of the original author, acts as an intermediary who brings together the source language of the work and the target language in respect of the two foreign cultures characterized by different social, political, historical and ideological realities.

Legal implications for authors and translators

a) Protection of authors and translators

Both the author and the translator are authors of original works within the meaning of the Copyright Act 

As stated in the Copyright Act, the creator of the original work has the exclusive right to produce, reproduce, perform or publish a translation of all or a substantial part of his or her work. In the first instance, the translated work borrows from the original work and afterward provides an original creation that gives it distinct copyright protection. The Copyright Act advocates two types of rights:

  1. the moral rights of the author of the work that affect the right to attribution of the work and the right to the integrity of the work (that the work not be mutilated in a way that affects the image of the author)
  1. the economic rights of the copyright holder on the work: exclusive rights to produce, reproduce, perform or communicate the work for example.

b) Translation as derivative work

The translation is a derivative work, because it takes its source from an existing original work. This legal dynamic between the author and the translator is reflected in both economic and moral rights. The application of these rights depends on the status of the work: is it in the public domain or not? 

Protected works 

Protected works are tangible and original expressions of ideas and the term of protection is 50 years following the calendar year of the author’s death. (after which the work falls into the public domain). 

The economic rights are exclusive rights that allow the right holder to exploit the work economically, such as: 

  • To produce or reproduce the whole or a substantial part of the work in any material form;
  • To perform or represent the work or a substantial part thereof in public; 
  • If the work is unpublished, to publish all or a substantial part of it; 
  • Transform or adapt a work of one class into another class; and
  • Produce, reproduce, perform or publish a translation of the work

In the case of translation, this means that a person wishing to translate an original copyrighted work must obtain the author’s authorization. 

Moral rights belong solely to the author and cannot be transferred to an economic rights holder (although a waiver is possible). These rights cover : 

  • The right to attribution or anonymity (maternity/paternity of the work);
  • The right to the integrity of the work: any prejudicial modification that violates the honor of the author constitutes a violation of copyright. 

In the case of translation, this means that the person translating a work will have to take care not to modify the work in a prejudicial way. A waiver of moral rights could be considered to facilitate a smooth translation.

Works of the public domain 

When a work is in the public domain, it becomes available to the public and anyone can reproduce, translate, copy, adapt or share it without the need for approval from a copyright owner or the payment of exploitation fees. 

Works in the public domain may be excluded from copyright protection if the 50-year term of protection expires after the death of the author or if the work does not qualify as a protected work under the Copyright Act

Thus, the translation constitutes a new work that includes elements of creativity subject to new copyright protection. Therefore, it should be considered as a derivative work of another work that is the result of a linguistic, cultural, social and even poetic concordance.