Translation and Copyright

The Copyright Act specifically defines “every original literary, dramatic, musical and artistic work” to include translations. This classifies translations as original works and gives the same copyright protections non-derivative original works.

The main benefits of owning a copyright include the right to prohibit others from reproducing your work, and the right to demand payment for use of your work. For more information, see: http://www.cjam.info/posts.php?post_id=46

What is a translation?

The Copyright Act does not provide its own definition of translation. The Federal Court of Appeal has defined translation, in the context of copyright, as “the turning of something from one human language to another.”[1] There is an important distinction, however, between a translation, which can be protected, and a simple conversion. The reproduction of a literary work in to Braille, for instance, is considered a mere conversion rather than a translation.[2] While the owner of the copyright of the original work in such a case retains his or her copyright, the Braille copy of a book is considered a reproduction of that book, not an original work, and therefore not protected by a new copyright. The person who converted the book into Braille in this example has no right over the reproduced work.

What rights do the original copyright owner and the translator have in a translation?

The owner of copyright in an original work is granted in section 3(1)(a) of theCopyright Act the sole right “to produce, reproduce, perform or publish any translation of the work”. A potential translator of a copyrighted work must obtain permission from the copyright owner. If your work is translated without your permission you may seek remedies for copyright infringement. (For more information, see: http://www.cjam.info/posts.php?post_id=100 ) Once a work has been translated, the translation is considered an original work with its own copyright separate from the original.[4]

The two separate copyrights do not completely separate the original work from its translation, however. Although someone will own a copyright in the translation, the owner of the original copyright maintains rights over both works, to which the copyright in the translation is subordinate.[5] For example, if someone wants to translate into another language a work that has already been translated, using the translated text as the source, he or she must obtain permission from both the copyright owner of the existing translation and the original copyright owner.[6]Without the original copyright owner’s permission, the owner of the copyright of the translation does not have the right to authorize such a use of the translated text.

What about translations from the public domain?

A work that is not protected by copyright – usually because its copyright expired 50 years after the death of the author (for more information, see:http://www.cjam.info/posts_fr.php?post_id=103) – does not require any permission to be translated because there is no copyright on the original. The new translation still qualifies as an original work and is protected by copyright.[7]

References

[1] Apple Comupter Inc. v Mackintosh Computers Ltd. [1988] 1 FC 673 at para 38 [Apple]

[2] Ibid

[3] Pasickniak v Dojacek, [1928] 2 DLR 545 (C.A. Man) at 552

[4] Ibid at 550

[5] Sunny Handa, Copyright Law in Canada (MarkhamL Butterworths Canada Ltd/) at 199

[6] Ibid at pp.199-200

[7] Apple, supra note 1 at para 39