The art of writing is the art of discovering what you believe.
Gustave Flaubert

Saturday 18 June 2011


Article 8 of the Berne Convention provides that the authors of literary and artistic works protected under the Convention enjoy the exclusive right to make or authorise the translation of their works. Translation is a form of reproduction, but in another language, and must necessarily involve the reproduction of a substantial part of the work even though it is not by any means identical. Making a translation is likely to involve the creation of a new copyright work, as in Byrne v Statist [1914] 1 KB 622 where the translator of a speech from Portuguese for reproduction in the Financial Times succeeded in a claim against The Statist (a journal of economics, finance, and trade, first published in London in 1878) which had printed an advertisement containing the translation with the permission of the maker of the speech. The Statist claimed it was unaware of and had no reason to believe there was copyright in the translation: the court was not receptive.

The Copyright, Designs and Patents Act 1988 (as amended) provides that a translation is a type of adaptation of a literary or dramatic work (but not where the literary work is a computer program or database), so making one requires the copyright owner's consent. The Act makes no special provision regarding the subsistence of copyright in the translation, but it will usually be original enough to attract protection. In the case of a computer program or database, an arrangement or altered version or a translation of  it is an adaptation for copyright purposes. (Because a translation is only one of three categories of treatments of a literary or dramatic work that constitute an adaptation, this apparently over-wordy piece of statutory drafting is necessary, although it still looks rather circular.)

Thanks to Chris and Adrian.

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