Copyright in translation: Is a translator also an author?

Copyright in translation

Copyright law protects the intellectual property of the copyright holder. German copyright law defines the protected subject matter as a work of literature, science and/or art.

When it comes to translations of literary works, a translator’s own creativity is also reflected in the end result. It seems only logical then, that these translations would be protected by copyright as well – but are they really? And to what extent?

Translation as a creative process

Translation is rarely a matter of just transferring words from one language to another. It’s actually a much more creative process. You can see this by taking a translation and retranslating it word for word into the original language. It doesn't work. This is mainly because a translator always uses their creativity when writing a target text and there are countless ways to express the same thing.

Naturally, the amount of creativity depends on what type of text is being translated. With specialist text, it's vital that the translator adheres closely to the source content, whereas a general language translation allows more freedom. Typical examples of specialist documents include legal translations (e.g. certificates and contractual documents) and technical translations (such as operating instructions), where the exact wording is important for legal reasons. Conversely, a poem or novel is translated for a reader’s enjoyment, so it needs to be written in an appealing way that resembles the author’s tone as closely as possible. This makes creativity essential for good translations of literary works.

Important for copyright law: the threshold of originality

This is exactly what copyright law is all about: creativity.

Paragraph 3 of the UrhG [German copyright law] states as follows:

Translations and other adaptations of a work which constitute personal intellectual creations of the adapter shall enjoy protection as independent works without prejudice to copyright in the work that has been adapted.

In other words, copyright law does protect a translation, so long as it is the translator's personal intellectual creation. For this to apply, the translation needs to differ from the original work by a particular level of creativity, formally referred to as the threshold of originality. As this degree of creativity varies from one translation to the next, only certain types of translations are protected by copyright law. It all depends on the threshold of originality.

In spite of this, the threshold is not actually defined in copyright law and has to be clarified in court on a case by case basis. One thing is certain, though: machine translations are never considered as personal intellectual creation and are therefore not usually covered by copyright law.

Authorisation from the original author

It’s important to know that, under copyright law, a translation represents an adaptation of an original work, which requires permission by the original author. Furthermore, linguistic works that fall under copyright law are automatically copyright protected upon completion. This means it’s not necessary to apply for separate copyright protection and the protected works don’t need to have a copyright symbol (©).

The copyright holder is not responsible for ensuring that the copyright is observed. Rather, it's up to the potential user to enquire whether or not the work is protected. This applies to both commercial and private use.

Copyright doesn’t last forever; it’s finite. The length of time varies from country to country but the term usually expires 50 or 70 years after the death of an author. After that, an adaptation – for example a translation – no longer requires prior permission.

What happens to the original author's copyright when their work is translated?

Whenever a translation falls under copyright law, both the original writer and the translator are considered co-authors, although the original author remains the copyright holder.

The translator, however, receives all the rights to which an author is entitled, such as royalties and the mention of their name on publication. He or she may also apply for artists' social insurance (if available in their country) and may enter a collection agreement with a copyright collecting society. What's more, because the translation is considered a protected work in its own right, it may not be edited or published without permission – just like the original work.

The bottom line: Copyright law also applies to translations, but not to all of them

In summary, copyright not only covers original works of literature, science and art but, where applicable, can also protect translations. The decisive factor lies is the extent of the translator’s personal creation contribution.

Literary translations are definitely subject to copyright law. However, specialist text translations are generally assumed to be so close to the original works that the translator has no scope for creativity – regardless of whether this is actually the case.