[Sca-cooks] Translations and copyright

[Susan Lin]

Here is the US Copyright office's fact sheet on "fair use"
http://www.copyright.gov/fls/fl102.html


On Thu, Aug 27, 2009 at 2:46 PM, David Friedman <ddfr at daviddfriedman.com>wrote:

> Suey writes:
>
>  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 up).
>
> 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 fair use.
>
> 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.
> --
> David/Cariadoc
> www.daviddfriedman.com
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