[cc-community] Licenses and law interaction.

Javier Candeira javier at candeira.com
Thu Nov 4 21:00:14 EDT 2010


On Fri, Nov 5, 2010 at 9:56 AM, Alan Cox <alan at lxorguk.ukuu.org.uk> wrote:
>> Could you please quote a statute or tell us about cases when
>> translation was not considered a creative work, or jurisdictions where
>> those the translator doesn't get control? If we are talking about
>> non-Berne countries, we should be making that proviso for anything we
>> discuss on this list, as Creative Commons licenses are based on Berne.
>
> The one I came across (not that got to a court) was a translation of
> tables which was deemed to be a mechanical process. You still needed the
> permission of the original author, and it would not have been an end run
> about CC but the translator in that case (or rather the translators perl
> scripts) didn't itself have any rights to the resulting work. I'll try
> and dig out a reference.

Yes, but IMO that has nothing to do with it being a translation, and a
lot to do with it being done by a computer program. I will quote
Spanish law first, then Google for Berne:

Spain (lightly paraphrased translation):
http://civil.udg.es/normacivil/estatal/reals/Lpi.html

- Copyright belongs to the author of a work.
- Author means natural person who creates a literary, artistic or
scientific work.
- In the cases specifically stated in the law, legal persons (personas
jurídicas, ie companies) can also benefit from protections accorded to
authors.

If the translation is done by computer, it's not the work of an
author, but of a machine, therefore no copyright or authorship.

Berne:
http://www.wipo.int/treaties/en/ip/berne/index.html

No definition of what "author" means, but the text implies an author
is a human male: "This protection shall operate for the benefit of the
author and his successors in title."

In any case, I think it's safe to agree that it's not the
"translation" bit that makes a work not a lack the status of original
authorship, but the "made by computer" bit. Same thing happens to
compilation, doesn't it? It's a purely mechanical step, so it doesn't
create a derivative work. Sorry, am in a hurry so I should stop
googling.

> One thing I've always wondered about translations is whether I commit an
> offence if I paste a website into babelfish so I can read it ? (Ditto
> google translate etc)

Yes, I wonder too about authorship in this case. What it would seem to
me is that, according to Spanish law, Google would have no rights of
authorship on the mechanical translation, and you would be right: all
copyright would still belong to the original holder.

J



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