Translation of articles and copyright - dot the i's

You found an interesting article, and wanted to translate it and publish it on Habré, but suddenly thought about copyright? Let's see how the law regulates the right to transfer, and its publication.




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So, let's say that someone Vasily Pupkin saw an article on the Internet written by John Dow in English. In a fit of love for knowledge and humanity, he decided to translate the article and put it in a blog. What pitfalls will he face? Let's see.

The rights of the author of the original, and the right to translate

First, let's consider what rights the author of the original has - John (I will say “author” for short, but mean “author or other copyright holder”). John, according to Russian law, has property and non-property rights to his work. Non-property rights - the right to name, authorship and protection of reputation - we are not very interested now, so let's move on to property. John, as the author of the work, is the owner of the so-called exclusive rights to it. The list of exclusive rights is quite long, but we are only interested in one item. Article 1270 of the Civil Code of the Russian Federation states:

The author of the work or other rightholder has the exclusive right to use the work in accordance with article 1229 of this Code in any form and in any manner not contrary to the law (exclusive right to work), including the methods specified in paragraph 2 of this article. The right holder may dispose of the exclusive right to work.

So, John can use his own work, if this use is not against the law. Let's hope he does that. He can also transfer his exclusive rights to someone else (for example, he can transfer them to an employer under a contract, or, say, donate to his girlfriend for his birthday). In reality, as we know, the copyright holder is often not the author himself, but some organization, for example, a publishing house. In my opinion, this is a little sad, but this is the truth of life. Now go to the mentioned paragraph 2 of the same article:

2. The use of a work, regardless of whether the relevant actions are performed with a view to making a profit or without such a goal, is considered, in particular

This is an important point. The fact of using works of good motives, that is, without receiving any profit, from the point of view of the law is void. Therefore, in case of violation of the rights of John by Vasily, excuses like “but I did it for free, that is, for nothing!” Will not pass. Subclauses of this clause 2 list the uses of the work. We are only interested in subparagraph 9:

9) translation or other processing of the work.

So, the right to translate is the exclusive right of the author, and only he can translate his work into other languages. Why do you need it? This protects the author in the following situations:

• someone made a disgusting translation of the work, and the reputation of the original, or even the author himself, suffered from it (as in the joke - “I heard that Caruso — nothing special, Rabinovich sang to me”).
• someone made a great translation of the work, and people began to buy this translation instead of the original.
  

However, according to clause 1 of this article, the author can also share with someone, including Vasily, his right to translate. Summing up:

• The right to transfer is an exclusive right belonging to the author or other copyright holder;
• If you violate this right, then it does not matter whether you get any profit from it or not;
• At the same time, the right to transfer may be transferred by the copyright holder to another person.

It turns out that, in general, Vasily needs to contact the copyright holder and ask for permission to translate the article (well, strictly speaking, he needs to conclude an agreement, but for Basil's purposes, simple permission will most likely work). If the copyright holder is the author himself, then Vasily is lucky, because the authors are mostly sensible people, and most often go forward.

Rights of the author of the translation

With the right to carry out the translation sorted out. We now turn to the rights to the translation itself, which are described in article 1260 of the Civil Code of the Russian Federation. Let's start with paragraph 1:

2. The compiler of the collection and the author of another composite work (anthologies, encyclopedias, databases, atlas or other similar works) own the copyright to the selection or arrangement of materials (compilation) made by them.

The translation, in spite of the fact that it essentially constitutes a kind of processing of the original, is nevertheless an independent work. Consequently, at the time of its creation, the author, Vasily, has all the same exclusive rights on him.

3. A translator, compiler, or other author of a derivative or composite work exercises its copyright, subject to the rights of the authors of the works used to create the derivative or composite work.

Despite the fact that Vasily’s copyright law arises regardless of whether he was allowed to make a translation or not, he can use this right only if he does not violate the rights of the author of the original.

4. The copyright of a translator, compiler and other author of a derivative or composite work is protected as rights to independent objects of copyright, regardless of the protection of the rights of authors of works on which the derivative or composite work is based.

Simply put, if John decides to transfer his copyright to another person, it will not affect Basil’s rights to his translation. This is quite logical, as Vasily, after he completed his translation, and should not depend on the further fate of the original. And finally

6. The copyright of a translation, collection, other derivative or composite work does not prevent others from translating or processing the same original work, as well as creating their composite works by a different selection or arrangement of the same materials.

That is, Vasily cannot forbid other people to make his own translations of the same work. This can still only be done by the copyright holder of the original.

Two common misconceptions

In addition to the often used “but I did not receive money for it,” there are several other errors that seem logical from the point of view of common sense, but, alas, they are precisely errors from the point of view of the law.

Misconception one: "The article did not have any instructions about the rights, so it is not subject to copyright and I can do with it what I want." This is not true. Copyright is always, moreover, they arise at the time of creation of the work, even before its publication. Therefore, the absence of any reference to rights does not mean that the work is in the public domain. On the other hand, the author can explicitly indicate that he allows everyone to freely use his or her work this way and that (for example, publish it under a free license). In this case, everything is in order.

The second misconception concerns the so-called "fair use". From the point of view of laws, for example, the United States, translating an article for educational purposes without the consent of the author, especially if it is a scientific or news article, can really be considered fair use - fair use - and be legal. But, unfortunately, such a concept is absent in our legislation, so you should not count on it very much.

Of course, you have every right to, say, quote the original without any consent of the author, albeit with the proviso “in the amount justified by the purpose of quoting”.

Life example

And finally, a little story. Recently, they shared with me a link to an interesting article of a major American publication, which I wanted to translate and put on Habr, but suddenly I thought about copyright. First of all, I naturally tried to contact the author of the original. I wrote him a letter in which I explained that I liked his article and I would like to translate it and publish the translation in order to give people who, for some reason, cannot read the original (for example, because of not knowing the language). ). The author answered me rather quickly, and said that personally he has absolutely nothing against it, but, unfortunately, it is not for him to decide. He advised me to apply to something like the trade union of the authors of the publication, which apparently was the copyright holder. While I was looking for the contact information of the person to whom I was advised to apply, I came across a form with which you can request the granting of rights to publish.

I filled out the form, specifying the purpose of the request - the translation, and also choosing the type of use of the work that is most suitable for me in spirit - academic (for educational purposes) and leaving a detailed comment. In the commentary I wrote the same thing that I sent to the author, and separately added that I don’t want to get any profit, but my goal is to bring knowledge to people.

I waited for a response this time longer - a little more than two days. In the answer, which was an obvious copy-paste from some document (the letter was absolutely impersonal! You could at least say hello by name, but alas ...) I described in detail their policy on the reuse of works, and offered to buy the rights I needed for 1200 dollars for half a year, or 2000 dollars for a year. I suspect that no one even bothered to read my comments. Upon reflection, I decided that spending time on trying to explain something to them does not make sense, but it will be easier and faster to write my own article on a similar subject.