Unpacking copyright and moral rights in translations

The Literature Nobel Prize Winner, Jose Saramago, from Portugal, is reported to have said, “Writers make national literature, while translators make universal literature.” Truly, some of the greatest works  in literature, both Indian and foreign, would have remained alien to us had it not been for translations. Anna Karenina, Don Quixote, Madame Bovary, One Hundred Years of Solitude, Raag Darbari, One Part Woman… these are just some examples. As the Indian literary market gets increasingly flooded with translations into English, and cross-translations across other Indian languages, interesting questions emerge for both publishers and authors.

The treatment of translated works, and the rights of a translator, in law are slightly different from that of the author. Some of the important questions that emerge in translated works are, for example, how does one obtain the rights to translating a work, does a translator have moral rights over the translated work, and what is nature of the credit due to a translator for a translated work. These are discussed in the present note.

The right to translate a literary work

Section 13 of the Copyright Act, 1957 (Act) states that copyright shall subsist throughout India in an original literary work. But what does this right entitle the right owner to do? For this, we turn to Section 14 of the Act, which clarifies that, with respect to a literary work, copyright means the exclusive right to do, or authorise to do, certain acts such as issue copies of the work, make adaptations of the work, make translations of the work, and so on.

Thus, a translated literary work necessarily requires obtaining the permission of the original author before translating and publishing the work. Translations made without appropriate permissions and licenses may be deemed unauthorised under law, and may have legal implications.

Therefore, ordinarily, before actually undertaking or commissioning a translation, it becomes important to obtain permissions from the original author. The process for this is provided in Section 32 of the Act. There are some cases where this may not be possible. For example, it may not be possible to contact the original author if the author is dead or unknown or cannot be traced, or the owner of the copyright in such work cannot be found. In such cases, under Section 31A, the Act allows for persons to apply to the Intellectual Property Appellate Board (IPAB) for a compulsory licence to translate the work, among other things.

Does a translator have copyright in a translated work?

The Act does not specifically state whether a translator has copyright in translations. This can only be determined by relying on judgements passed by Indian Courts.

  • Besides considering a translated work as a literal translation of an original work, it is also possible to examine it as a derivative of an original literary work, or an expression of creativity itself. Indian courts have considered translated works in all these ways, and arrived at certain useful conclusions.
  • In Blackwood v. Parasuraman (AIR 1959 Madras 410), the Madras High Court held that there is a copyright in translation and that a translation is an original literary work. Additionally, in Hafiz P.H. Abdul v. Abdurahiman (1999(2) KLJ 686), the Kerala High Court held that:
  • Even in translations, where brain, labour and skill have been used, or where some literary works are carried out, the person who did the said work in the translation is the author having copyright over the same.”

In the case of Eastern Book Company v. DB Modak (2005 (30) PTC 253), the Supreme Court of India classified literary works into: (i) primary or prior works that are not based on existing subject matter; and (ii) secondary or derivative works which are literary works based on existing subject matter. The Supreme Court was examining the question as to what should be considered the standard of originality of a derivative work, and what would be required in a derivative work to treat it as original work of an author thereby providing the author of a derivative work a copyright under the Act.

In its decision, the Supreme Court held that the question of whether a copyright is created in a derivative work would depend upon not just the skill, labour and capital in the derivative work but also there existing a minimal level of creativity.

Does a translator have moral rights in a translated work?

This brings us to the question of moral rights in a translated work. In simple terms, moral rights refer to the rights of an author or performer to protect the integrity and ownership of their work. The idea of moral rights is fuzzy, has not often been tested, and is certainly not easily codifiable in statutory language. Nevertheless, the 2012 amendments to the Act, introduced the concept of “moral rights” of performers in Section 38B. However, for an understanding of “moral rights” in the context of literature and authorship, we need to refer to the classic case of Amar Nath Sehgal vs. Union of India (2005 (30) PTC 253). In this case, the Delhi High Court held that the moral rights of an author flow from Section 57 of the Act.

Section 57 of the Act deals with the “special rights” conferred upon an author of a literary work, and states that independent of the author’s copyright, and even after copyright in the work has been assigned either partly or wholly to someone else, the author of a work continues to have the right:

(i)  to claim authorship of the work; and
(ii)  to restrain or claim damages in respect of any distortion, mutilation, modification or the literary work prior to the expiry of the term of the copyright.

Therefore, to determine whether a translator has moral rights over the translated work, it needs to be determined if copyright subsists in the translated work in favour of the translator.

Based on the understanding of copyright in translated works detailed in previous paragraphs, it can be argued that if the exercise of translation is such that skill, labour, capital, judgement, and at least a minimal level of creativity is involved, the translator would have a copyright in the translated work and thereby possess the moral rights granted under Section 57 of the Act.

How must a translator be credited in a publication?

The nature of credit to be given to a translator of the translated work would depend on whether the translator has a copyright in the translated work. If the translator has a copyright over the translated work, based on the parameters discussed above, due credit would need to be provided to the translator using language to the effect of “Translation copyright © Translator year of publication”.

If, however, a translator does not possess copyright over the translated work, any credit to be provided to the translator would be as agreed upon in the agreement signed with the translator. Ordinarily, that would take the form of “Translated by [Name of Translator]”.