[Sca-cooks] Translations and copyright
ddfr at daviddfriedman.com
Thu Aug 27 13:46:01 PDT 2009
> this copy write hang up of David's ...
The issue of translations and copyright is likely to be relevant to a
number of us at one time or another, so I think it may be worth
sketching the relevant facts. My comments are based on U.S. copyright
law, but I would expect the situation to be similar in other
countries signatory to the same international agreements, which
almost all countries are, with some variation as to who is signatory
to which agreement.
What copyright gives you is the right to forbid people from copying
or performing your work or making derivative works. The exact extent
of protection is unclear. The category of "fair use" lets someone
copy bits of a work without violating copyright law, with just how
much is permitted and under what circumstances imprecisely defined.
But copying all or a large part of a substantial work without
permission is pretty much always infringement, even if for a
non-commercial purpose. (I'm ignoring the special cases covered by
the recent Google settlement, which I suspect is not going to stand
What is protected by copyright is expression, not idea. If someone
reads one of my recipes and uses the information in it to write his
own recipe, he is not violating my copyright. If he quotes the recipe
verbatim without my permission he is, unless his quote qualifies as
In the U.S. at present, you get a copyright by fixing your work in
some tangible medium--writing it down, webbing it, entering it into
your computer. Registration is not necessary, but does give some
additional legal protection against infringement. A copyright notice
is not necessary, although it was at one time and may still be in
some other countries.
The term of copyright varies among countries, but is typically
author's life plus about fifty to a hundred years. This raises
practical problems if the author is dead and it is unclear who now
holds the copyright. But inability to identify the copyright holder
doesn't, in itself, mean that the copyright no longer holds.
A translation is a derivative work of the original, and so covered by
its copyright. That is still true if the original is itself a
translation. When Huici-Miranda translated Manuscrito Anonimo from
Arabic to Spanish and I arranged for several SCA people to translate
it from Spanish to English, their translation was a derivative work
of his translation. Hence it was covered by both his copyright and
theirs, meaning that one could not legally copy it (again subject to
exceptions for fair use) without permission from both the holder of
the copyright on the Spanish translation and the holder of the
copyright on the English re-translation. But when Charles Perry
retranslated from the Arabic original, that was not covered by those
copyrights, even though he used the English retranslation to help him
do so--that was the use of idea not expression. Huici-Miranda's
footnotes were covered, but I consider quoting them (in translation)
as fitting into the fair use exception.
Obviously, the copyright issue doesn't arise if you are translating
directly from a period source. But you still do have to be concerned
if you are including notes by a modern editor.
What does all of this mean? Legally speaking, it means that if you
are translating from a translation without the permission of the
copyright holder, you are probably in violation of copyright law. On
the other hand, most of what we are doing is sufficiently low profile
so that such a violation is unlikely to have any consequences. How
individual translators deal with that situation is up to them. In my
case, I have encountered it three times--with the two Andalusian
cookbooks and with a retranslation from modern Portuguese of a period
Portuguese cookbook. I solved the problem for _Manuscrito Anonimo_ by
getting Charles Perry to retranslate from the Arabic. In the other
two cases I stopped distributing the retranslation.
Anyone who has additional information, or reason to think that my
description of the legal situation is in error, is more than welcome
to add to or correct it.
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