Considerations for translation rights 2.0

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Translation Spaces ( ), . . /ts. . sad / - - John Benjamins Publishing Company

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Considerations for translation rights 2.0

Gaafar Sadek

As the contours of the globalized digital information society become appar-ent, so does the need for a reform of translation rights within the intellectualproperty regime. Te history of translation rights provides insights that help usunderstand the underlying economic and political tensions in copyright negotia-tions today. Te various versions of agency in translation studies, which runparallel to recent interactive technologies, destabilize important notions in copy-right law, such as authorship, originality, and the idea-expression dichotomy.Finally, translational ethics can perhaps contribute to redirect current dialogueson copyright and language policy towards increased interdisciplinarity andinternationalism, in part, as a result of decentralizing power.

Keywords: intellectual property, language policy, information society, digitaleconomy, globalization, ethics

Introduction: How laws come to be

As I write these words, there are ongoing protests as well as considerable mediaattention against the Anti-Counterfeiting rade Agreement (AC A), especiallyin Europe. Tis is a multinational treaty that has been in the works since 2007, andif approved, 1 the end-result would be yet another governing body whose mandatewould be to set international standards for the enforcement of intellectual prop-erty rights, in addition to the World Intellectual Property Organization (WIPO)and the World rade Organization (W O).

Te negotiation process thus far has been severely criticized, to the pointwhere the official rapporteur and European Parliaments appointed chief investi-gator, Kader Arif, resigned from his position and stated that he wanted to:

[] denounce in the strongest possible manner the entire process that led tothe signature of this agreement: no inclusion of civil society organisations, alack of transparency from the start of the negotiations, repeated postponing ofthe signature of the text without an explanation being ever given, exclusion of


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the EU Parliaments demands that were expressed on several occasions in ourassembly. As rapporteur of this text, I have faced never-before-seen manoeuvres fromthe right wing of this Parliament to impose a rushed calendar before public opin-ion could be alerted, thus depriving the Parliament of its right to expression andof the tools at its disposal to convey citizens legitimate demands. Everyone knows the AC A agreement is problematic, whether it is its im-pact on civil liberties, the way it makes Internet access providers liable, its conse-quences on generic drugs manufacturing, or how little protection it gives to ourgeographical indications. Tis agreement might have major consequences on citizens lives, and still,everything is being done to prevent the European Parliament from having its say

in this matter. Tat is why today, as I release this report for which I was in charge,I want to send a strong signal and alert the public opinion about this unacceptablesituation. I will not take part in this masquerade. ( La Quadrature, 2012)

Justiably, one may wonder: what is the link between these events and transla-tion studies? Tis question itself reveals the unfortunate lack of collaborationbetween scholars in translation studies and copyright law. Te overlaps betweenthese two elds have been largely ignored, apart from a few notable exceptions:Bentley (1993, 2007); Venuti (1998); Basalamah (2000, 2001, 2004, 2005, 2007,

2008, 2009); Wirtn (1998, 2004, 2009, 2011a, 2011b, and with Ryman 2009); Ost(2008, 2009); and Gow (2007).Te AC A agreement is primarily concerned with the enforcement of intel-

lectual property rights in an increasingly digital world and does not concern trans-lation in any direct manner. As for translation, it has been an issue of contentionfor copyright legislation since the rst international negotiations around copyrightduring the nineteenth century, calling into question notions of authorship andoriginality, and highlighting power relations between central and peripheral lan-guages, colonizing and colonized states, and between producers and consumers.

Te AC A agreement is reminiscent of the many other national and inter-national negotiations which have given us, over the past century and a half, thecurrent intellectual property (IP) regime, including translation rights ( R), withwhich this article is concerned. 2 According to Geist (2012), however, these previ-ous negotiations were far more open than AC A.

As one reviews the transcripts of the meetings and conferences that led to theseminal Berne Convention for the Protection of Literary and Artistic Works3 (Berne)for instance, one is quickly reminded of the colonial framework of the nineteenth

century, and the pivotal role of translation in that context. At that time, it wasGreat Britain and especially France, the two superpowers of the day, who led theway, with relentless fervour, for the implementation of the IP regime. Nations thatwere producers and exporters of literary and artistic goods generally supported


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these regulations, because they were nancially benecial to them, while import-ing nations at least the few that were present expressed much more concern

and reluctance towards these measures, because it was clear to all that they wouldhinder their nancial and cultural progress.

Realizing the power relations

As one can imagine, developing the worlds rst multilateral copyright treaty wasa path mined with many volatile issues, but none of which would be as prob-lematic as translation. Te French wanted translation to be considered as a merereproduction of the original, because they were primarily producers and exportersof art and literature and did not feel any need to resort to translation. Nationswith minor languages, because they relied more on translation for their art andliterature, pushed for a different, freer idea of translation and resisted the notionof translation as an activity to be fully assimilated with reproduction rights be-longing exclusively to the author of the original. Sweden, as one of the importingcountries, and perhaps representative in that regard of most other nations, wentso far as to present itself as a culture of translation (Wirtn 2011a) and objected

to restraining translation rights in the manner we know today, for the sake of na-tional welfare and as a form of resistance. 4

Should the author have an exclusive right over the translation of his work?What about the translators right over his translation? And for how long shouldsuch rights remain in effect? Tese were some of the questions that required an-swers before international copyright legislation could be passed. Authors obvi-ously realized the benets of having their translated works reach new markets andreaders, but also understood the possibilities of losing control over the quality ofthe nal product, not to mention missing out on potential nancial gains from thetranslated versions of their works. So although it was discussed at times as if it werea form of piracy or counterfeiting similar to counterfeited prints, translation wasa more complex issue to resolve than printing piracy because of the benets as-sociated with the dissemination of ones works. It was the medium through whichworks would ow from one nation to another, and WIPO (1986, 153) labelled itla question internationale par excellence.5

As the debates progressed, it became exceedingly difficult to dene the natureof the transformation that resulted from a translation: was the translation a merereproduction, an entirely new work, or something in between? Te argumentscentered on the importance of attributing works to their authors in the most faith-ful manner, as a duty not only towards authors, but also towards the general pub-lic. Te issues were of such contention, however, that the French were not able to


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see translation fully assimilated into reproduction rights until the 1908 RevisionConference in Berlin. Ironically, it was also then that translations were granted

protection as originals in their own right. One cannot help but wonder, along withProfessor Basalamah (2007, 122), how can the original remain present within thetranslation, when the change in language constitutes a major change in form, andit is the form alone the expression which is protected under copyright?

Digitalization and 2.0

Not only does translation breathe a new life in works by rewriting, reframing,and reinterpreting them, it also extends them towards cultural horizons that werenever within their reach (Derrida 1987). But, in this way, translation is perhaps notso different from other types of reproductive or derivative activities.

ranslation rights are part of the wider bundle of rights called copyright law,where the most important ideas are authorship and originality. 6 And it is pre-cisely those two ideas that have been most challenged by translation since thebirth of copyright law, and, more recently, by the proliferation of user generatedcontent (UGC) on the Internet. ranslators cannot freely contribute to UGC con-

tent because their activity is restricted by translation rights that have been grantedexclusively to the original contents rights holder. At the same time, the role oftranslation for developing cultures and economies has always been recognized in-ternationally and is even explicitly stated in the Appendix (WIPO 2012) to theBerne Convention, entitled Special Provisions Regarding Developing Countries.Te incongruity between these two positions is quite puzzling, to say the least.

As antagonistic to our modern individualistic and romantic ideas of author-ship and originality as it may seem, science, art, and culture have always progressedby further developing the works of the past and, in the words made famous byNewton, standing on the shoulders of giants ( urnbull 1959, 416). As Aristotlewrote over two thousand years ago:

the instinct of imitation is implanted in man from childhood, one differencebetween him and other animals being that he is the most imitative of living crea-tures, and through imitation learns his earliest lessons; and no less universal is thepleasure felt in things imitated. (Aristotle 2009)

But this is perhaps even truer today, in the digital context of the 21st century,

where most cultural activities involve some form of copying, borrowing, trans-forming something into something else, or simply, mashing-up. 7

When copyright laws were rst negotiated, the only other possible author be-sides the author proper was the translator, whose work was eventually recognized


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as copyrightable. Tat is because the very idea of translation questions the stabilityof the original. But in todays world of blogs and You ube, everyone is an author

and a producer, and, as a result, notions of originality and authorship are moreunstable, more contested than perhaps ever before in history. Mash-up activitiesand all forms of user-generated content were never foreseen by those who put theIP regime in place, at a time when access to materials depended mainly on slowand costly printing mechanisms. It is therefore not surprising that, as technologymakes things faster and cheaper by freeing us from the shackles of the physicalrealm through virtual access, the foundations of the old system start to crumble,and their applicability to such new realities becomes questionable.

In 2006, Time Magazine selected You as the person of the year, to expresssocietys general understanding of what Web 2.0 means. Every individual was nowa potentially major player in a decentralized, post-Fordist world, able to produce,create, and share content with the rest of the community a community now atones ngertips, literally. From this point on, any person could have a signicantpublishing or intellectual property impact, because the Internet made large scaledistribution and sharing of content cheap and accessible.

When companies realized the business potential of leveraging UGC for -nancial gain, they made available various specialized platforms, such as MySpace,

Flickr, Amazon, and You ube, for users to share and distribute content as theyliked. Users appreciated the ease and efficiencies of platforms which made it pos-sible for them to both produce and consume, opening the door to potentiallycountless collaborative endeavours. Tis has since become a social phenomenon,leading to a number of major collaborative projects, such as Linux and Wikipedia.Everyone was now a potential producer-consumer (prosumer), an independentunit of production ( offler 1980; see also apscott 1995; Ritzer and Jurgenson2010).

One would think that, as a result of these technical strides, everyone wouldlive happily ever a er. But that was not the case, because the typical industrialproducers of content who established copyright in the rst place were nowin competition with users and their user-generated content. Users were threaten-ing to transform business models and cultural practices, including copyright law.

Te platforms mentioned above depend on the information content generatedby prosumers for their success. Tey will therefore promote and enable the freeexchange of non-exclusive information and provide the tools and space for usersto do so. In other words, their business model stands in contrast to the model oftraditional content producers (publishers, broadcasters), who have typically re-lied on exclusive control over content for their viability (Benkler 2006). Evidently,copyright law is at the center of these social transformations.


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It is, however, difficult not to argue for a reform of copyright law that wouldtake into account these collaborative realities, instead of hindering them. Copyright

law was originally designed to provide incentives for producing content by mo-nopolizing information, instead of sharing it. Regardless of the validity of this lineof reasoning and its applicability to intangible, intellectual goods, it is clear thatits raison dtre is contrary to the increasingly collaborative user-generated natureof work done in a knowledge society. Since its beginnings, the Internet has al-ways been a source of hope and inspiration for a more open, democratic society inwhich information ows unobstructed on the World Wide Web, everywhere, andto the benet of everyone (Elkin-Koren 1996, 2002; Litman 2004; Cohen 2005).Or so we thought.

If we look at the publishing and broadcasting of news for example, the natureand quality of the information provided by publishers and broadcasters usuallyserves the interests of owners and advertisers and has a primary purpose of gar-nering the highest ratings possible. In concrete terms, the news may not be asimpartial or complete as one would hope, and marketing strategies usually aimadvertisement strategically to shape consumer choices, instead of catering to theirpreferences (Baker 1997, 2007). UGC provides alternatives and breaks free fromthe grip of the sole source model, moving society closer to decentralized sources

of information and cultural production. 8 Te absence of intermediaries would, inturn, make the information more diverse, more authentic, and more representa-tive of tastes and preferences, be it in politics, the arts, or anything in between(Shirky 2008). Te choice of what to translate, and when and how, has alwaysbeen controlled by the same content producers who controlled original content,with the same self-serving intentions. By opening up the right to translate, insteadof keeping it exclusively in the hands of the originals author (or rights holders),translators can join the UGC movement, as amateurs as well as professionals, andhelp disseminate knowledge across borders. 9

Society has witnessed many cultural and societal changes with the adoptionof Web 2.0 practices that have extended to all areas of life. As the past two decadeshave shown, there are other business models beyond the monopolistic selling ofcopies and the one-to-many model that can be successful without resorting toexclusive control over content. But instead of seeing copyright adapt to the tech-nological and cultural realities of our world, lobbying efforts by traditional contentand rights owners are still able to keep copyright laws moving in the oppositedirection, adding restrictions and creating barriers by always extending the scopeof copyright laws and strengthening their enforcement. 10

Tere are different collaborative translation projects that have recently seenthe light of day, such as Le Vocabulaire Europen des Philosophies, raduXio, EDOpen ranslation Project, Project Lingua, the World Wide Lexicon, Cucumis, and


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WikiProject Echo, but such activities will remain very restricted so long as trans-lators must secure permission from the author of the original for any translation

they wish to make public.For the time being, however, translators can concentrate on some of the pos-sibilities offered by copyle licenses. Tere is an increasing number of works thatare protected by some of the Creative Commons copyright licenses allowing de-rivatives. ranslators can therefore reproduce these works, and license them withthe Share Alike option, which ensures that others can retranslate them under simi-lar conditions. Such practices are in line with the collaborative environment ofthe digital age and the information society and will highlight the obvious tensionsbetween our new realities and the outdated central governance mechanisms ofcopyright law, which aim to concentrate power in the hands of single owners.

Copyright reforms, however, need not be seen as extreme measures. For ex-ample, a less dramatic modication could be implemented, rendering translatedworks collaborations, whereby translators would be automatically granted rightsover their works as collaborators. Most importantly, they wouldnt need permis-sion to publish their translations, so long as they were clearly presented as such.Just as anyone is free to publish a commentary, summary, or interpretation of anywork without seeking permission, so anyone could be free to publish their own

translation of any work. If an author so wishes, he or she could further endorsethis or that translation of their work as the author-approved translation. Suchmeasures would help the case of translation and translators, but wouldnt resultin any destabilization of the system, and would in fact only help copyright lawextend its reach to new works.

Another possibility would be to add a use it or lose it clause to translationrights. If the translation of a work does not appear within, say ve or ten years fromthe day of publication of the original, it would be considered fair use to translate it.We live in an information society in which information is doubling very fast (every18 months, according to the American Society of raining and Documentation;every 5 years, according to Bill Clinton; or every 11 hours, according to IBM); aclause like this would make sense in such a dynamic context. Tis is yet anotherreality that ought to be reected by legislation dealing with access to information.

But until copyright policymakers realize that current IP trends are moving inthe wrong direction, and that they are doing more harm than good by pushingfor policy that goes against normal consumer expectations, and until they startrelaxing the structure of copyright law and open it to allow for collaborative andinteractive works, we must resort to such measures as copyle licensing if we wantto see translation participate fully in todays world. Open and collaborative trans-lation projects are still possible, providing good opportunities to participate in thedemocratizing of knowledge and the fomenting of creativity. However, at the rate


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intellectual property rights restrictions are taking over the intellectual realm, suchpossibilities may soon be rendered even more difficult to apply.

In addition to casting doubts on the notions of authorship and originality,translation also raises issues with another important foundational element ofcopyright law, o en referred to as the idea-expression dichotomy. Copyright dis-tinguishes between the idea behind a work and its expression or manifestation inthe real world. Contrarily to patents, which protect the idea or content, copyrightintends to protect the manifestation, or the form of an idea, by granting a mo-nopoly over its commercial use to the author. Tat is why there are so many novelsand movies recounting the classic love tale for instance, all of them with the samegeneral premise and denouement. Although the main idea remains similar fromwork to work, the manner in which the plot unfolds and the characters interact,the manner in which the idea is expressed or clothed in language, differs. And inthe eyes of copyright law, that is enough to consider every new novel and moviewhere characters overcome the obstacles that make their love impossible and -nally live in eternal bliss, an original work. In return for the protection and mo-nopoly granted to the author of the original work, society benets from a constantow of new ideas, which, we are told, enriches its culture.

Te distinction between idea and expression is not always easy to make. Tis

difficulty becomes apparent if we look at modern conceptual art for instance,which has interesting overlaps with various aspects of translation. In the 2008 caseof Jacob Gautel v. Bettina Rheims, the French Cour de Cassation considered theplacement of the word PARADIS in gold over the bathroom door of the formerdormitory of a hospital for alcoholics, as a material expression of an original idea,and therefore a copyrightable work. Bettina Rheims, a famous photographer, hadtwo models pose in Gautels Paradise twelve years later in her New Eve. She de-fended herself by stating that the former piece was only reduced to an idea andwas therefore not protected by copyright law. Tis argument did not convince theFrench judges, who ultimately thought that Gautels aesthetic choices were a re-ection of his personality, that his was a work and not a mere idea, and thus mustenjoy copyright protection. 11 We may be told that an idea is not protected, but itseems that, if it is original enough, it may be.

If that is the case, then one may wonder how translation ts into copyright.ranslation is usually understood as the changing of the form, the linguistic con-

tainer, of a work, while faithfully preserving the idea or content. So, if copyrightprotects the expression and not the idea, and if translation is a change of the ex-pression, then shouldnt this change in the expression of a work be deemed suf-cient to consider it an original?

Recent scholarship in translation studies, however, consistent with the linguis-tic turn that has swept across all the humanities, has questioned this simplistic


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understanding of translation as being a mere change of form. Form and contentare not so easily disentangled. Te language we use serves as a grid to analyze andexpress reality, and the seemingly linguistic transfer from one language to anothercarries with it historical, cultural, psychological, ideological, and even cognitiveimplications that necessarily modify the content, and even the receiver of thatcontent, be it a language, a history, a semantic network, or a society. 12 Acceptingthe conclusions of such scholarship would mean that a translation is not only themodication of the expression and the preservation of the idea, but rather, themodication of both expression and idea. And of course, this would undeniablygrant (at least some) translations the status of originals.

Globalization and policy

In the 1990s, when the Internet was so young that none of us were addicted toit yet, the general impression was that English would always be the language ofinformation and communication technologies (IC ). Almost twenty years later,

Figure 1. Jakob Gautel, Le Paradis, ancien dortoir des alcooliques de lhpital de VilleEvrard (source: http://www.connaissancedesarts.com ).
http://www.connaissancedesarts.com/http://www.connaissancedesarts.com/


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although English is still the dominant language on the Internet, it has nowherenear the absolute dominance it was once thought to have. At present English ac-

counts for just around 27% of users, and is losing ground. It may seem counterin-tuitive that we are headed towards linguistic plurality, instead of moving towardsthe simplicity of monolingualism.

A few years ago, most language experts would have said that their biggest con-cern in matters of language policy was the double-edged sword of having Englishas both a lingua franca that facilitates communication through a common lan-guage and as a reection of the U.S.s hegemonic colonization of all dimensions oflife, including the linguistic (which carries a renewed signicance in an informa-tion society where language becomes yet another commodity that yields power).But we are, a er all, living in a globalized world where many of the rules andstructures from the pre-globalization era are no longer sufficient to help us un-derstand what changes are happening in global human culture. And perhaps thegreatest change we need to understand is that in a globalized world everythingmoves towards mutual interconnectedness and cross-impacts, including languag-es. Gone are the days of explaining language change in the simple terms of uni-directional effects. Languages now have a felt reciprocal action on one another;languages at the center affect peripheral languages and languages at the periphery

affect central languages. In fact, some have even said that today it is impossibleto write in a language without being inuenced by and aware of other languages(Glissant 1996).

So it obvious that a nation with only one language at its disposal, such asEngland for instance, will be at a disadvantage, with progressively stronger ten-dencies towards isolation and insularity in its general outlook as well as in themore technical areas of research and output. In turn, this can have devastatingrepercussions on the competitiveness of the country, which, given the current eco-nomic climate, is the last thing any country is willing to allow. Tis conclusionhas been echoed in various studies and reports, especially in Europe. In 2009, theBritish Academy published a report, Language Matters, in which it explained, forinstance, the problem of insularity and marginalization in scholarship (or, in thewords of the report, to be a scholar that is world-famous only in England). Otherstudies have highlighted and reached similar conclusions (Graddol 1997; 1999;2000; 2006; 2010). Manifestly, unilingualism is seen as a problem for everyone,and language experts are recognizing the need for a renewed look at language poli-cies, especially given the repercussions of technology and globalization.

One of the initiatives to counter this domination of English is the intercom-prehension movement, in Europe. In short, it proposes to teach Europeans (start-ing with the staff of the European Union), the linguistic elements common to afamily of languages. Although the intercomprehension method will not make it


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possible to speak the other languages of the same linguistic family, it will be pos-sible to understand them sufficiently. Intercomprehension would signicantly re-

duce translation and interpretation costs in the European Union (which currentlyhas 23 official languages), foster new feelings of European identity and citizenry,and perhaps weaken the dominance of the United States (and English) in someareas by weakening its linguistic grip.

If even Europe, a superpower in its own right, fears for its cultural and lin-guistic identities, then we can see how the developing and least developed na-tions would be even more fearful. Tese nations are increasingly at the mercyof others, not only economically and politically, but culturally and linguistically.Intercomprehension and other linguistic resistance movements recognize the im-portance of actively resisting the growing domination of English by resorting tothe use of other languages and hence support the argument for the cultural roleto be played by translation.

ranslation, as we have said, entails more than simply rendering a messagein another language. Citizens of America and the United Kingdom, or of Braziland Portugal, will not necessarily always understand each other despite speakingthe same language; while they share a common language they do not share cul-tural spheres. When these speakers communicate, they exchange, as a result, dif-

ferent cultural content from those spheres. Similarly, translation doesnt just makelinguistic changes; it also opens channels of communication to different culturalcontent. A multiplicity of languages and cultures opened by translation would leadto epistemological plurality, not only in general worldviews, but also in particularcontent elds that are heavily inuenced by language, such as law.

Louis-jean Calvet (2007) said that the lingua franca model eventually leads toa cultural scientic autism, to a uniformity which leads to the impoverishment ofthe language at the center, contrarily to the languages at the poles and the periph-ery. Only a translation policy can ensure scientic progress: guarantee the circu-lation of information, the sharing of conclusions, discoveries, comparisons, andcritiques from fresh eyes and different perspectives all things without which noreal human progress can take place.

But there is hope, because many have already realized the growing role trans-lation is playing in our world, not least of which is Europe, as we have seen, andnot only economically (Dwyer 2010). For example, the European Commissionrecognizes the important roles of translation for its politics, culture, and economy,and devotes specic activities and funds to its study. Increasingly, scholars andinstitutions have identied translation as the point of convergence for the social,cultural, political, and economic threads we have been discussing here.

For Europe to become unied, we are told, the magic formula is not hid-den in some common language, but rather, in multilingualism. Respecting


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multilingualism gives every culture an opportunity for developing itself while pre-serving its identity and difference. Promoting a multilingual Europe is not only

essential for maintaining respect and unity in the European Union, but also forpreserving the economic prosperity of the European states. A complete languagepolicy would not only preserve ones language, but also promote the learning ofother languages through increased exposure. Te improvement of the linguisticskills of European citizens will make it easier to reach Europes political and eco-nomic objectives of having societies that are founded on integration and respectof the other, while at the same ensuring the sustainability of the workforce and thestability of European economy (Orban 2010, 4358).

Since May 2004, the area covered by the European Union has expanded by aquarter, its population by a h, its GDP by 10%, while the number of languageshas soared from 11 to 23. Te European Union now includes about 500 millioncitizens, 27 member states, 3 different alphabets, and 23 official languages (in addi-tion to about 60 other non-official languages). All of these differences must be seenas factors of wealth, and not as barriers. And it seems that European politiciansand policy makers are slowly starting to realize what translation studies has beenrepeating for decades, that their identity lies in being united in their difference.And quite frankly, if it is good enough for Europe, it should be good enough for

the rest of the planet. Perhaps this puts Umberto Ecos famous words Europeslanguage is translation a little bit more in context.

Ethics of translation, international and interdisciplinary

As copyright law becomes more inltrated into every aspect of our daily lives, itshould also become more interdisciplinary and therefore in need of being trans-lated into the target languages of other disciplines, such as economics and poli-tics. However, it really seems that the only extent to which copyright scholarshipis interdisciplinary is that scholars from other elds are all talking in parallelabout copyright from their respective standpoints. Tat is, copyright is still verymuch discussed in silo, and not much is looked at outside of the law itself and itsdiscrete application to particular disciplines (Wirtn 2009).

Tough case studies and corpora studies in translation scholarship are highly valuable methodological and pedagogical tools, if we accept to see translation at amore abstract level, as the theoretical discipline that it truly is by looking beyondthe linguistic analysis of corpora it can help us identify the important playersand factors in situations of transformation and change, and highlight power rela-tions between these elements. Going even further, translation can be seen as adisciplinary paradigm, a philosophical outlook that can help us establish an ethics


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well-established tradition in our discipline that recognizes the merits of foreigniz-ing translations. 14 Part of the intrinsic ethics of translation is that the host agrees

to change his ways in order to welcome the guests (Legrand 2005).Tere are, therefore, links to be made between the dominant presence ofone language English, currently and law. In her 2008 book InternationalCopyright Law and Policy , Silke von Lewinski writes that it may be worthwhilestudying whether the prevalence of the English language has had an impact onthe perception of this eld of law, or given rise to a possibly enhanced inuence ofcopyright thinking (von Lewinski 2008, vii). It would not be difficult to make thecase that, there have only been two empires that shaped international copyrightlaw: the French and the American. Both highly imperialist, and both were able toleverage the powerful symbolic value of their respective language to dominate dis-cussion and negotiations. 15 French was the language of law and diplomacy, and itis clear that French interests were the primary concern and drive behind copyrighttalks. Te situation is not so different today, with English as the vehicle of expres-sion of the concerns of the United States, which are expressed mainly through theW Os RIPS (trade-related aspects of intellectual property rights).

Copyright negotiations have a lot to gain from this kind of reasoning. If copy-right laws, and translation rights in particular, were more respectful of the devel-

opmental circumstances of every geo-political region; if law-making was less de-pendent on the violence of domestication, and the reduction of the other to thesame with all the utter disregard, arrogance, and distortions of the Belles indles;if the laws actually stemmed from the respective interests and situations of everycommunity, instead of the lobbying efforts of private companies halfway aroundthe world, then perhaps there wouldnt be such a need for tracking and enforcingcopyright laws, to the point where every one of our basic privacy rights is thrownout the window to please content owners. But until those lessons are learned, wemust keep pushing for translation rights that will at least destabilize and decentral-ize power from the few to the many.

In the same way as literary translators accept that words do not just travel acrosslanguages, lawyers must begin to appreciate that laws do not just travel acrosslegal cultures. And in the same way as literary translators accept that translationrequires modications to the work in translation, lawyers must accept that legalborrowing requires modications to the law in transit [] It is therefore sim-plistic to approach the matter of legal borrowing as if rules were interchangeableacross space and time. (Legrand 2005)


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Notes

. Tat is, if it is ratied by 6 signatories among the 22 EU countries or Australia, Canada, Japan,Morocco, New Zealand, Singapore, South Korea, and the United States.

. Ranging from the International Conferences of the People of Letters (18581878), to theInternational Literary and Artistic Association (1878), to Berne (1884 and onward)

. Such as the 1884, 1885, and 1886 conferences. See, for instance, Ricketson (1987, 5580,963972)

. As the Americans were a culture of reprinting.

. See also Louis Renault, Rapport prsent au nom de la commission par la dlgation Franaise

Actes de la Confrence Runie Paris 1896 , in La Convention de Berne, 168, in Basalamah (2009).. According to both the utilitarian argument of the sweat of the brow, as well as the moral

philosophy argument of considering the work an extension of the personhood of the author.

. Digital media content containing any or all of text, graphics, audio, video and animationdrawn from pre-existing sources, to create a new derivative work (Wikipedia.org 2012).

. Tough the sources of the information are more decentralized, platforms are still controlledby few entities. So they are decentralized only relatively.

. Tere is a misconception that most of the content provided on UGC platforms is of low-er quality. And though this is obviously not the case, as numerous studies have shown, therelevance of this point to translation is perhaps to be found in the increasing automation ofthe translation process. With the booming demand for translation, it is only logical to expectproviders to nd efficiencies, such as resorting to automating the process. Tis is consistentwith translation scholarship encouraging the setting of various quality standards, representingthe various needs of translation projects. Sometimes a translation of machine quality is actu-ally sufficient, and sometimes it isnt. ranslators must concentrate their efforts or be utilizedwhere their work is value-added, and not where a machine can do the work (see Bowker (2009,123155; 2011, 211236; and with Ehgoetz 2007, 209224). With regards to machine transla-

tion, most algorithms make all language pairs go through English. More work has to be done sothat this intermediation and potential interference is avoided, and translation is actually donedirectly from the source to the target language (see Cassin 2007).

. For instance, see Bill C11 in Canada and SOPA in the U.S.

.Te judges stated the following : cette oeuvre porte lempreinte de la personnalit de sonauteur ds lors quelle exprime des choix tant dans la typologie des lettres retenues que dans leurexcution manuelle la peinture dor patine et estompe que sur le choix du lieu de leur inscrip-tion, partie intgrante de luvre, mais aussi de la porte, dont la serrure est en forme de croix, etde ltat des murs et des sols qui participent caractriser limpression esthtique globale qui se

dgage de lensemble de cette reprsentation, (Paris, 28 juin 2006, Com. com. lec. 2006 , comm.120, note C. Caron)

. See parallels with the merger doctrine in copyright law for instance, where expression andidea are merged.


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. Pierre Legrand has presented these ideas from the viewpoint of a comparatist at law.

. E.g., Herder, Venuti, Spivak, Berman, etc.

.Prior to 1948, the Berne Convention was only official in French, and Article 37(1)c. still de-clares the primacy of the French: In case of differences of opinion on the interpretation of the various texts, the French text shall prevail.

. tre [] cela veut dire [] hriter .

References

Aristotle. 2009. Poetics. ranslated by S. H. Butcher. Accessed March 1, 2012. http://classics.mit.edu/Aristotle/poetics.html .Baker, C. E. 1997. Giving the audience what it wants. Ohio State Law Journal 58, 311.Baker, C. E. 2007. Media Concentration and Democracy: Why ownership matters. New York:

Cambridge University Press.Basalamah, Salah. 2000. Compulsory License: An instrument of development? IDEA: e

Journal of Intellectual Property Law and Technology 40, 4. Accessed February 22, 2012.http://www.ipmall.org/hosted_resources/IDEA/40_IDEA/40-4_IDEA_503_Basalamah.pdf .

Basalamah, Salah. 2001. Te thorn of translation in the side of the law. oward ethical copyright

and translation rights. In: e Translator. e Return to Ethics, edited by Anthony Pym,155167. Manchester: St-Jerome.

Basalamah, Salah. 2004. Du droit lthique du traducteur. TTR 17, 2, 6788.Basalamah, Salah. 2005. De la justesse de la traduction la justice en traduction. In:

Jurilinguistique: Bilan et perspectives, edited by J. C. Gmar and N. Kasirer, 460467.Montral: Tmis.

Basalamah, Salah. 2007. ranslation rights and the philosophy of translation: Remembering thedebts of the original. In: In Translation: Reections, Refractions, Transformations, edited byPaul St-Pierre and Prafulla C. Kar, 117132. Amsterdam: John Benjamins.

Basalamah, Salah. 2008. Aux sources des normes du droit de la traduction. In: Beyond Descriptive

Translation Studies: Investigations in Homage to Gideon Toury , edited by A. Pym, M.Schlesinger, and D. Simeoni, 247264. Amsterdam: John Benjamins.

Basalamah, Salah. 2009. Le droit de traduire. Une politique culturelle pour la mondialisation.Ottawa: Presses de lUniversit dOttawa.

Basalamah, Salah. 2010. ranslational critique of the Arab postcolonial condition. In:Globalization and Aspects of Translation, edited by S. M. Shiyab, 6877. Newcastle:Cambridge Scholars Publishing.

Benkler, Yochai. 2006. e Wealth of Networks: How Social Production Transforms Markets andFreedom. New Haven: Yale University Press.

Bentley, Lionel. 1993. Copyright and translations in the English speaking world. 12 Translatio:FIT Newsletter 491, 469499.

Bentley, Lionel. 2007. Copyright, translations, and relations between Britain and India in thenineteenth and early twentieth centuries. Chicago-Kent Law Review 82, 1181.
http://classics.mit.edu/Aristotle/poetics.htmlhttp://classics.mit.edu/Aristotle/poetics.htmlhttp://www.ipmall.org/hosted_resources/IDEA/40_IDEA/40-4_IDEA_503_Basalamah.pdfhttp://www.ipmall.org/hosted_resources/IDEA/40_IDEA/40-4_IDEA_503_Basalamah.pdfhttp://www.ipmall.org/hosted_resources/IDEA/40_IDEA/40-4_IDEA_503_Basalamah.pdfhttp://www.ipmall.org/hosted_resources/IDEA/40_IDEA/40-4_IDEA_503_Basalamah.pdfhttp://classics.mit.edu/Aristotle/poetics.htmlhttp://classics.mit.edu/Aristotle/poetics.html


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Gaafar Sadek

Wirtn, Eva Hemmungs. 2011b. Cosmopolitan Copyright: Law and Language in the TranslationZone. Uppsala: Uppsala University. Accessed March 1, 2012. http://www.abm.uu.se/evahw/Cosmopolitan.pdf .

Wirtn, E. H. and Ryman, M. 2009. Mashing-up Culture: e Rise of User-Generated Content .Uppsala: Uppsala University. Accessed March 1, 2012. http://www.abm.uu.se/evahw/Mashing-Up.pdf .

Authors address

Arts Hall70 Laurier Avenue EastRoom 401Ottawa ONCanadaK1N 6N5
http://www.abm.uu.se/evahw/Cosmopolitan.pdfhttp://www.abm.uu.se/evahw/Cosmopolitan.pdfhttp://www.abm.uu.se/evahw/Mashing-Up.pdfhttp://www.abm.uu.se/evahw/Mashing-Up.pdfhttp://www.abm.uu.se/evahw/Mashing-Up.pdfhttp://www.abm.uu.se/evahw/Mashing-Up.pdfhttp://www.abm.uu.se/evahw/Cosmopolitan.pdfhttp://www.abm.uu.se/evahw/Cosmopolitan.pdf

Considerations for translation rights 2.0

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