[Sca-cooks] Translations and copyright

[David Friedman]

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