Translators open up new worlds that would otherwise remain closed to us because of language barriers. It is not simply a matter of translating a text into another language. Instead, translation is a creative process.
Because there is a special legal relationship between an author and his or her work, the author of the original text must give permission for a translator to translate his or her work. However, it is not always clear to whom a text really is copyrighted. The question often arises: Who is the author of the work? And how does copyright affect translation?
To translate a text, you need to know who wrote it
If you want to edit a copyrighted work, you must get permission from the author. If the author cannot be found, it is usually not possible to use the work.
In fact, it can be extremely difficult to find the copyright holder, as there is no central registration office for copyrighted works.
Collecting societies (Verwertungsgesellschaften, VG) can help you find an author. They manage authors‘ rights in a fiduciary capacity and verify that financial claims are met. The most important collecting society for authors, translators and publishers in Germany is VG Wort.
Translators must also verify that the text has been made public domain
The author has the right of use and cannot transfer it. He or she alone decides when and in what form his or her work is published, reproduced, or translated. However, he*she may authorize third parties to use his*her work. To do so, he*she enters into a license agreement that contains the parameters for the use of the work. Thus, the third party is granted usage rights to the work.
Section 31 of the German Copyright Act (Urheberrechtsgesetz, UrhG) governs the granting of usage rights, which are defined below:
It is not possible to sell the copyright. However, if the author is unable or unwilling to make full use of his or her rights, it is possible to grant a right of use to a third party.
A work can also be used without the author’s consent if it is in the legitimate interest of the public. Streaming is also in the public interest and does not require permission.
Can I just translate texts that are out of copyright?
Works that are no longer protected by copyright – such as the original texts of Caesar or Shakespeare – can generally be translated and published without permission. The reason for this is that copyright has a time limit.
Übertragen von Nutzungsrechten
The author can grant a right of use to another person for his or her texts. The scope of the rights of use is the author’s choice. A translator must therefore first secure the rights of use to a text before editing and translating it.
Copyright law distinguishes between two types of rights of use: simple and exclusive rights of use. You can also choose to limit the rights of use.
– Simple right of use: The author and other third parties who have acquired rights to the work are allowed to use the work. The simple right of use applies, for example, to image databases. It is possible to buy photos there and then integrate them into your own website. However, others can also obtain the image and permission to use it through the provider. A photo can therefore be used by many different people.
– In the case of an exclusive or unrestricted license, only the purchaser is entitled to use the work. The author of the work no longer has a usage right. The exclusive user right also allows the owner to decide whether to grant further rights of use. In addition, he/she is even entitled to take legal action against the author if he/she commits a copyright infringement.
– Limited exclusivity: If the author wishes to transfer the exclusive right of use of his or her work but still reserve the right to use it himself or herself, he or she can do so in the contract under the heading of limited exclusivity.
– In addition to the simple and exclusive rights of use, it is also possible to restrict the use of a work. These restrictions may be territorial, temporal or substantive.
But what about the resulting translation?
Is a translation a separate piece of work?
This is possible if the translation is a personal intellectual creation of the translator.
When are translations copyrighted?
In order to make literary works available to a wide audience, it is necessary to translate them into other languages.
Section 3 of the Copyright Act (UrhG) says the following about translations
Translations and other adaptations of a work which are the personal intellectual creations of the adaptor shall be protected as independent works, notwithstanding the copyright in the adapted work.
Thus, translations are protected by copyright as independent creations if they differ from the original work by a certain degree of creativity. However, the law does not define when this requirement is met. It is therefore up to the courts to decide.
Translations are subject to copyright
Translators are also authors under copyright law. Therefore, they have the right to be named, which is regulated in the moral rights of the author according to § 13 UrhG (German Copyright Act). This is indicated in the imprint of a book.
Moral rights
Sections 12 to 14 UrhG are summarized under the term moral rights. They deal with the following topics: Publication rights, recognition of authorship and distortion of the work.
The Copyright Act protects the relationship between the author and their work through moral rights. This guarantees each legitimate author the recognition of their authorship. This means that they can decide whether or not to attribute their work in accordance with Section 13 UrhG. Authors are not obliged to attribute their works.
The purpose of moral rights is to protect the relationship between the author and his or her work. For this reason, copyright cannot be transferred to third parties. The right to name the author exists in any case, even if a third party holds rights of use.
Right of Publication
The right of publication is part of the moral right of the author. Accordingly, the author alone determines whether and how his or her work is published. This also applies to translations and adaptations.
According to § 6 (1) UrhG, publication occurs when copyrighted works are made available to the public. However, the right of publication generally applies only to the first publication of a work.
The copyright law defines the public as the general interested public. A presentation to friends or a selected group of acquaintances is therefore not considered a publication.
Reproduction and distribution
Reproduction under copyright law occurs when the work is placed in a physical form. However, if the work is merely displayed on a screen, it is not considered to have been reproduced. Distribution is when the work is physically passed on.
Only the author has the right to publish both the original and the copies.
Distortion or other impairment of the work
According to § 14 UrhG, the author has the right to prohibit distortions and other changes to his or her text. However, if only minor or common changes are made, such as correcting spelling mistakes, there is no copyright infringement.
The question of whether moral rights are violated must always be decided on a case-by-case basis.
Disregarding the moral rights of an author
Disregard of moral rights constitutes copyright infringement. In this case, claims for injunctive relief and damages may be asserted. A warning letter should be issued before legal action is taken. This gives the offender an opportunity to settle the dispute out of court by paying a reasonable penalty.
An attorney specializing in copyright law can assess the likelihood of success.
What else to think about?
In order to be able to assert claims for copyright infringement in court, you usually have to prove your authorship.
According to Section 10 UrhG, authorship is usually presumed. The law states
Whoever is designated as the author in the usual manner on reproductions of a published work or on the original of a work of fine art shall be presumed to be the author of the work until the contrary is proved […].
There are several ways to prove copyright. The most conclusive way is to deposit the work or a copy of it with a notary or a lawyer. The notary will notarize the receipt and draw up a deposit agreement. He or she can also testify in court.
Ownership of raw data can also serve as proof of authorship. This is because unfinished sketches or manuscripts usually are owned only by the author.
Assigning copyright
Copyright is an exclusive right. It cannot be fully transferred to third parties. Only after the author’s death can the copyright be transferred to the author’s heirs.
Copyright law is stated in § 29 UrhG:
The copyright is not transferable, unless it is transferred in fulfillment of a disposition mortis causa or to co-heirs by way of division of an estate.
Authors can, however, grant usage rights to others, allowing them to use the text.
Copyright Disclaimer
There is an inseparable link between the author and his or her work. A waiver of copyright is therefore ineffective.
It is generally possible to allow third parties to use the work. To do so, a so-called free license must be granted. This grants broad rights of use to third parties, so that anyone can freely modify the work. Creative Commons (CC) has developed the CC Zero License for these comprehensive rights of use and a corresponding waiver of remuneration.
Creative Commons
Creative Commons (CC) is a non-profit organization founded in the USA in 2001. Creative Commons is a licensing system that makes it possible to specify rights of use. In principle, the license agreements can be used for all kinds of works. Images, music or videos can be licensed under the same Creative Commons license.
The valid license agreement is identified by a letter code. With this system, Creative Commons can be used in both international and German copyright law. This avoids language barriers in complicated contracts.
The six Creative Commons licenses consist of four components. These can be combined in a kind of modular system. Authors can choose from the following elements:
Attribution (BY)
The author of a work decides whether and how his or her name should be given. If attribution is desired, it consists of the name of the work and the name of the author: [image name] by [John Q. Public].
No commercial use (NC)
Use of the work may be restricted to free projects.
No Derivative Works (ND)
The author of a work may prohibit derivative works.
Share under same terms (SA)
The author can decide whether the work should be distributed under the same license after it has been modified.
Free content (CC0)
Creative Commons allows for the creation of what is called free content. Copyright law permits the free use and distribution of these works. This can be either on the basis of public domain or on the basis of appropriate licenses. Free content is particularly widespread in the area of software under the term „open source“.
The following conditions apply to the use of media under a CC license:
– Cite the author
– Give the Title
You should check the license terms carefully before using third-party content. Missing or incorrect source or license information often leads to warnings. These are usually accompanied by claims for damages and cease-and-desist letters.
In summary, in Germany, most works that translators want to translate are protected by copyright. As a result, the author of the original work must give permission before a translator can begin the translation. Conversely, translations are also protected by copyright.
Urheberrecht und Urheberrechtsgesetz 2024
To the German translation of this article: Urheberrecht: Was Übersetzer*innen wissen müssen