The software giants Google and Oracle have been in a legal scuffle over the last few years. Oracle, owner of Java, a set of programming instructions that allow software to work with different platforms, argued that any company, including Google, should pay royalties for it whenever they used Java. Google contended that subjecting software to copyright protection would amount to stifling innovation:
The high court’s decision Monday left intact a prior ruling that certain kinds of programming instructions are entitled to copyright protection, as Oracle argued. Google and some other industry groups argued that treating the instructions as creative works protected by copyright could hurt the ability of companies and programmers to take advantage of standard software functions and make different programs work together.
Source: The Wall Street Journal, June 29, 2015, http://www.wsj.com/articles/supreme-court-denies-google-appeal-on-oracle-suit-1435585873
Current copyright law protects the expression of an idea, whether this is conveyed in written, visual or software form, or a variation thereof. Fortunately for Oracle —and for the world of commercial translations— the Supreme Court left a prior finding standing: software can be copyright protected.
However, current copyright law protects translations as derivative works in the sense that they are not equal to the original:
However, it could be argued that a commercial translation (as opposed to a literary one) still carries the distinction of being an original written work. The late Argentinean writer Jorge Luis Borges famously wrote that “the original is unfaithful to the translation.” Whether a translation is a poem, a novel, a blueprint or an employee manual, it is a separate creation, a fact that is more markedly evident the better the translation is executed. For example, if you were to peruse the Spanish version of a U.S. hospital brochure, chances are that the Spanish translator may be quite bilingual but not necessarily a good writer in her native language. Hence, a separately created text or written work cannot be considered derivative in any sense, any more than Weird Al Yankovik’s song “Amish Paradise” is of “Gangsta’s Paradise” by rap artist Coolio. That Al Yankovic’s song was inspired by Coolio’s original work is true and cannot be denied, but Yankovic created a new original work, whether you like Weird Al’s work or not.
Naturally, it was lawyers and similarly learned men who conceived of copyright legislation governing intellectual property, including original works and derivative works. Not knowing the true nature of the concept and product of translation, they likely went for the very obsolete concept that any translation is a literal interpretation of a written work. Has the world changed since? No, because translation is not valued higher than an impromptu bilingual interpretation of a statement, an email or video. Another fact: government agencies and hospitals, to name a few, seek translators while operating under the assumption that a bilingual person has automatically acquired excellent writing skills. To make things worse, the American Translators Association does nothing to clear this confusion.
Our copyright laws and international conventions to that effect are based on society’s conceptual interpretation of what translation is or is supposed to be. They are not based on scientific observation or empirical theories. Therefore, it could be proposed that current legislation protecting original work, whether it’s text or software or video or song, need to evolve with a more accurate concept of the objects under the law and their purpose in society.
Society right now considers literary translation quite separate from any other kind of translation, the latter being viewed as purely utilitarian and bereft of aesthetic value. I would contend that that is not the case, especially if the parties buying translation services secured the services of highly competent translators. The better and more competent the translator, the more original the translation will be.
For an enlightening discussion of intellectual property, copyright and translation, you are welcome to read Dr. Lenita M.R. Esteves article published in the Translation Journal.