A copyright is a right granted to the creator of a work to protect it from unwarranted perpetrators and to make economic gains from such work. In India, the Copyright Act of 1957 provides such statutory rights to the creators of original literary, artistic, musical, dramatic works; or films; or sound recordings as per Section 13 of the Act. With grant of such right, the copyright holder has the exclusive say for reproducing the work in any form, for issuing copies of the said work to public domain, to make any translations of the said work; or to license or transfer it by way of an assignment etc.
In addition to the aforementioned rights, "owner of the copyright" also has a right to seek remedies in case of any infringement of his/her rights, i.e., either civil remedies in the nature of injunction or damages; or can get the perpetrators punished with an imprisonment for a period of six months to three years, along with a fine ranging between fifty thousand rupees to two lakh rupees.
Thus, it is also important to understand if the same rights and protections are available to a translator with respect to his/her translated work, and the same will be explained in this article.
Meaning of Translated Work
As per the definition given in Black's law dictionary, a Translation is – "The reproduction in one language of a book, document, or speech delivered in another language." In simple words, a translated work is conversion of written material from one language to another language, while retaining the essence of the original text as closely as possible.
In this backdrop, two situations can arise where in one instance, the translated work is a mere replica of the original work into some other language; and in another instance it is more than a conversion of the original work into another language, with a flavour of creativity added to it. Now the question that arises here is under which situation can a translator be able to claim a copyright for the translated work.
Copyright in Translated Work
If the author of the original work itself is the translator, this situation might not arise. But when some other person has either obtained a licence from the author of the work, or from the appellate board, then this situation could crop up. Before 2007, the criterium for grant of a copyright was based on the sweat of the brow theory. Applying this theory, it can be said that even the translated work has originality, time, and efforts put in by the translator, and so such work can claim a copyright.
In the case of Blackwood And Sons Ltd. And Ors. vs A.N. Parasuraman And Ors., it was observed that "The fight to copyright in the translation is not dependent on the terms of Section 4 but it springs from the very terms of Section 1 of the Copyright Act, 1911, because the translation itself would be 'an original literary work'"
Further in the case of Hafiz v. Abdurahiman Makhdoomi, it was noted that "...even in the translation 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."
This implies that a copyright subsists even in a translated work which is considered as "an original literary work". Still the question remains about certain translated works such as literal translations from one language to another language. This question was adequately answered way back in the case of Macmillan and Co. v. K. and J. Cooper. The court, in this case, said that "In all cases where the reprint with the text of it consisted merely of a reprint of passages selected from the work of any author, would never have a copyright." In spite of reliance being made on the sweat of the brow theory, the courts were still conscious enough not to grant such copyright for mere translations so as to maintain the sanctity.
But with the judgment of the Supreme Court in the case of Eastern Book Company and Ors. v. D.B. Modak and Ors., the sweat of the brow theory is replaced with the modicum of creativity theory, as per which a work should have creativity to be able to get a copyright. Thus, it was held in this case that "Novelty or invention or innovative idea is not the requirement for protection of copyright but it does require minimal degree of creativity."
Applying the said principle, in the case of The Bhaktivedanta Book Trust v. Thomson Press (India) Ltd., an interim injunction was granted in favour of Plaintiffs holding that "the Plaintiff holds the copyright in the work in question, a translation of the Bhagwat Gita under the title 'Srimad Bhagvatam'".
Recommendation & Conclusion
Though there is no direct provision in India under the Copyright Act of 1957, considering the cases decided, as of today, a translated work enjoys copyright protection if it has a minimal flavour of creativity as against the presence of skill and labour alone.
It is to be highlighted that as per Article 2(3) of the Berne Convention, even a translated work is eligible to get a copyright. While India is a signatory to Berne Convention, still there has been no effect given to this provision as per which translated works are to be protected as original works.
Thus, it is recommended that suitable amendment be made in accordance with the said provision.
Copyright Claim By Translators
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
