Don't Get Lost In Translation: Copyright Protection In Translated Works

• Published date: 22 December 2021
• Subject Matter: Intellectual Property, Copyright
• Law Firm: Bereskin & Parr LLP
• Author: Ms Naomi Zener and Prudence Etkin

'Writers make national literature, while translators make universal literature.' - José Saramago

In Canada, copyright arises automatically on creation of 'every original literary, artistic, musical, and dramatic work', which also includes translations of written and audiovisual works, such as books and movies. A translation is generally a derivation of an original work, and is also a copyright-protected work pursuant to Sections 2 and 13 of the Copyright Act (the 'Act'), provided it is an original work meeting the skill and judgment requirements set out in CCH Canadian Ltd v Law Society of Upper Canada (LSUC), 2004 SCC 13. The process of translating from one language to another is often referred to as a subjective, artistic process. Providing that a translation is more than a reproduction of the underlying work in another language, it will be protected by copyright. While a translation may be the proper subject matter for copyright protection, there are the twin issues of ownership of the copyright in the translation: 1) whether authorized or unauthorized; and 2) the moral rights therein. In the case of both authorized and unauthorized translations, moral rights will be retained by the translator unless waived in writing, in favour of the person or party seeking the waiver.

Copyright in Translations

Pursuant to Section 3(1)(a) of the Act, the author and owner of copyright in a work owns and controls the right to translate, produce, and reproduce their work. Furthermore, they have the right to license (exclusively and non-exclusively) and/or assign any of their rights to another person or entity. Any written, audio, and audiovisual work can be translated from one language to another. Presuming a translator has copyright protection in their translation, the author and owner of the underlying work needs to know what copyright protection and rights they have when it comes to both authorized and unauthorized translations.

Authorized Translations

Authorized translations occur when the copyright owner of a work allows another person to translate their work into another language. Copyright ownership in an authorized translation of an underlying work is clear: the translator will be the first owner of the copyright in the translation. However, ss. 13(3) of the Act provides for an exception if the translation was made during the course of employment: the copyright will be owned by the employer. Where the translator is engaged as an independent contractor, the...