Modern copyright law and translation
The approach in Britain toward authors’ or copyright owners’ right to translate their literary and scientific works started to change with the emergence of modern copyright law in the mid-nineteenth century. While the modern copyright law initially recognised the right to translate in a rudimentary form, by 1911 this right came to be protected as one of the fully fledged exclusive rights of the copyright owner. The main reasons for this change of approach included the new way
in which protection of literary property was conceptualised under modern copyright law and the changed socio-economic and political background in Britain. In fact, the changed socio-economic and political conditions in Britain not only influenced this new conceptualisation of protection of literary property' but also called for a comprehensive law protecting literary property which was premised on that conceptualisation. The result of this was the Imperial Copyright Act 1911. The modernisation of copyright in the 19th century changed the conceptual basis of copyright protection. The recognition of authors’ translation rights was partly an outcome of this change. As Sherman and Bendy observed, modern copyright law was an outcome of ‘an important transformation [which] took place in the law which granted property rights in mental labour’.[1] Prior to the mid-nineteenth century, the law that granted property rights in mental labour was not organised in a consistent and meaningfill way. Thus, there was no clear idea of what was meant by copyright law, although the term ‘copyright’ was used frequently. However, by the 1850s or thereabouts, copyright law ‘emerged as a separate and distinct area of law replete with its own logic and grammar’.New conceptual basis of copyright protection
The modernisation of copyright brought significant changes to the conceptual basis of copyright law. One notable change related to the role of mental labour as a justification for copyright protection. Prior to the mid-nineteenth century, the mental labour of the creator was the central factor which justified protection for literary and scientific works. However, with the modernisation of copyright, the central position afforded to mental labour began to fade away. Sherman and Bendy observed:
[A]s the law took on its modern guise it shifted its attention away from the labour that was embodied in the protected subject matter to concentrate more on the object in its own right. That is, instead of focusing, for example, on the labour that was embodied in a book, on what was considered to be the essence of intangible property, modern [copyright] law was more concerned with the object as a closed and unitary entity; with the impact that the book had on the reading public, the economy and so on.
This shift of copyright law’s attention away from mental labour had a significant impact on extending copyright protection to translation rights. More specifically, under premodern copyright law, the mental labour and skill extended by the translators (in translating works) were weighed against granting an exclusive right to the authors to translate their works. In other words, translating was not seen to infringe on the authors’ rights because (or in recognition) of the mental labour extended by the translator in translating the work. However, when the emphasis placed on mental labour for granting exclusive rights began to fade, the old justification for refusing protection for translation rights was no longer watertight. Yet, at its emergence in the mid-nineteenth century, the modern copyright law was not fully prepared to easily discard the merits of the translators’ contribution. As such, modern copyright law still grappled with a range of issues, such as whether only translation of works of domestic authors should be construed as infringement of copyright (as opposed to the works of foreign authors); whether all types of translation (both colourable and meritorious) should be construed as infringements; or whether only colourable translation should be construed as infringement. In fact, this uncertain status of the law becomes clearly discernible in the writings of the leading copyright scholars in the second half of the nineteenth century. Curtis was among the first few scholars in the mid-nineteenth century to address the conceptual basis of protection of translations under copyright law. He said that a translation is considered a new literary work because of the ‘new labour’ spent in the translation.[2] The policy of copyright law was to encourage the creation of new works. Therefore, encouraging translations was within the objectives of copyright law.
Having said that, however, Curtis raised an important question as to whether the rule that a translation is a new work would only apply to translations of original works first published in a foreign country. This was because original works first published in foreign countries did not receive copyright protection in the domestic country. Thus, any person could translate an original work first published in a foreign country and publish that translation in the domestic country without infringing upon the rights of the original author. In contrast, when the original work was first published in the domestic country, its author received copyright protection for that work within the domestic country. The question here was whether any person could translate that original work and publish the translation in the domestic country without infringing upon the rights of the author. In other words, the question was whether the ‘new labour’ spent in the translation was ‘sufficient to override the exclusive right of the original author in the matter itself.
Although the issue still remained uncertain under English law, Curtis believed that the new labour added by the translator was not always sufficient to override the exclusive rights of the original author.[3] In particular, he said: Where the adoption and use of the matter of an original author, whose work is under the protection of copyright, is direct and palpable, and nothing new is added but form or dress, or an immaterial change of arrangement, the law will treat the alteration as merely colourable, and will stamp it with the character of piracy. Whether the change of form, or dress, produced by a close translation, in cases where the original work is under the protection of copyright, can have any greater effect than belongs to a change of form or dress, in other cases, is an interesting question, not determined, as it seems to me, by the general principle of the law of England, which treats translations as original works. This general principle was established only with reference to translations of foreign works, not under the protection of copyright.
At the same time, Curtis was also of the view that the adoption of a general principle that the exclusive right of the original author would always override the new labour added by the translator would be incongruous, particularly in the case of scientific works. More specifically, he said that ‘in the case of a scientific work written, for instance, in Latin, intended for the Learned, and intended to convey a new discovery, or other information peculiarly original’ it is possible to argue that translations give ‘the work a new dress, in which the matter of it would be brought within the reach of far greater number of persons.’ Further, it could be contended that these types of translations were ‘not only meritorious, but [were] a result of new labour of a purely intellectual kind’. Yet even in such a case, ‘the principle which allows the character of originality to the product of new labour upon old materials, would . . . encounter the exclusive right of the original author in the matter of the work itself’.
The imprecise conceptual basis of modern copyright law with regard to the right of authors to translate their works continued well into the last decades of the nineteenth century. This becomes particularly evident in the writings of Scrutton and Birrcll. In particular, writing in 1896, Scrutton stated that on principle a translation was clearly an infringement of copyright in the original work.
Yet courts ‘would draw a distinction between translations of poetry or prose having a literary merit and style, and translations merely mechanical, as of educational or scientific works.’[4] Similarly, writing in 1899, Birrell stated, ‘[i]f the original book is entitled to protection, it would seem unreasonable to permit it to be translated without the consent of the owner of copyright.’
In contrast to this, the dawn of the twentieth century witnessed the emergence of a clearer view of how modern copyright law should approach the question of translation rights. In fact, many scholars at this time were prepared to concede that all types of translation infringed copyright. The reason for this was perhaps best explained by MacGillivray, who said:
A translation takes everything in a book but the actual words; it takes the selection of material and its arrangement, and is certainly a very material taking of the work and labours of another. The Translator is making a profit from the author’s work by using it in a manner in which the author might have himself used it and made similar profit. The only real answer which the translator has is that he has expended a great deal of skilled labour in putting the author’s book into another form. This might have been a defence fifty years ago, but I do not think it is a good defence now.
- [1] Sherman and Bendy, above n 7, 2-3. 2 Ibid. 3 Brad Sherman, ‘Remembering and Forgetting: The Birth of Modern Copyright Law’ (1995) 10 Intellectual Property Journal 1, 5. 4 Sherman and Bendy, above n 7, 4.
- [2] George Ticknor Curtis, A Treatise on the Law of Copyright (A Maxwell & Son, 1847) 186-187. 2 Ibid., 187. 3 Ibid., 187-188. 4 Ibid., 188.
- [3] Ibid., 291. 2 Ibid., 188-189. 3 Curtis said that ‘[n]otwithstanding the general principles of the English law in relation to translations, this question, I apprehend, would be not easy of solution, in the case of scientific work written.’ Curtis, above n 205, 188. 4 Curtis, above n 205, 188. 5 Ibid., (emphasis added). 6 Ibid. 7 Thomas Edward Scrutton, The Law of Copyright (William Clowes & Sons, 3rd ed, 1896) 134. In support of this proposition, Scrutton cited Murray v Bogue (1852) 1 Drewry 353: 61 ER 487.
- [4] Scrutton, above n 215, 134. 2 Birrell, above n 139, 154. 3 Ibid., 154-155. 4 EJ MacGillivray, A Treatise Upon the Law of Copyright (John Murray, 1902) 117. 5 Sherman and Bendy, above n 7, 4. 6 Ibid.
