If you find this infographic hard to read you can see it better at Fair Use Week.
Piracy is obviously “a bad thing”. Just because some heedless enthusiast once asserted “information wants to be free” doesn’t mean that information producers want the same thing. However nice it is to run around shouting liberal slogans, we do live in a world where the rule of law still hangs on. The invention of the e-book has made piracy rather easier, or certainly affordable.
As the AAP wrote in their monthly newsletter for August 2015:
Technology has changed the ways in which books, journals and other published copyrighted literary works are created, shared and purchased. Copyright law, however, is technology-neutral, meaning that copyright protections are meant to apply equally to eBooks and printed books. AAP’s recent amicus brief supporting the International Trade Commission’s (ITC) authority to address unfair trade practices involving infringing copies of such works, regardless of whether they are imported in hard copy or as eBooks, aims to defend this central principle of copyright.
Our support of the ITC’s trade authority with respect to infringing works in digital formats aligns with our top priorities for modernizing copyright, which include ensuring that publishers and other rights holders have effective tools to combat online infringements. Every year, the U.S. government publishes a Notorious Markets List [2015 is the most recent available report] highlighting the online (and offline) markets outside the U.S. that post mass-quantities of infringing copies of books, movies, music and other creative works that undercut the royalties paid to authors, filmmakers and musicians.
Now here’s The Creative Penn on how we should embrace the pirate: better read free than unread. This is the same thought that Neil Gaiman was expressing in his 2011 video (which can be found in the link in the first line of this post). Maybe this is the spirit behind The Digital Reader‘s comment on Digimarc’s report on piracy of e-books, which they estimate at $315,000,000 in 2016. Maybe he’s being ironic in dismissing this number as “nothing to worry about”, though he does link to the Creative Penn piece, so I suspect that the remark is addressed to the narrow issue of piracy’s effects on the individual self-published author. Now it may well be that any individual’s share in the heap of pirate-pinched revenue is small, and that encouraging reading by giving away a few free downloads of a novel has the desired effect of increasing readership, but not all publishing is like that. It may well happen that a pirated copy of your novel will indeed lead to further sales as the pirate recommends the work all around. Now of course, not all books are e-books, whatever the enthusiasts might like to think. Print piracy is and remains a large problem. Given the nature of the technology it tends differentially to affect big books like textbooks and reference books. If an Oxford Chinese-English dictionary, say, is pirated in China that is purely and simply a lost sale. It’s not like the pirates go around telling their chums that there’s now this amazing thing called a Chinese-English dictionary, which suddenly releases demand for this hitherto unimaginable production. The best it’ll do is encourage more illegal downloads.
So while it may be just fine for most self publishers to blithely ignore piracy, it’s not something the whole industry can really afford to do. I don’t think 10% (if that’s what it is) is really something any company can afford to ignore. Any publisher would make fairly significant offerings to Gaiman’s gods if that would secure them an annual revenue increase of 10%.
The U. S. Copyright Office defines it thus:
“Copyright law protects a work from the time it is created in a fixed form. From the moment it is set in a print or electronic manuscript, a sound recording, a computer software program, or other such concrete medium, the copyright becomes the property of the author who created it. Only the author or those deriving rights from the author can rightfully claim copyright.
There is, however, an exception to this principle: “works made for hire.”
If a work is made for hire, an employer is considered the author even if an employee actually created the work. The employer can be a firm, an organization, or an individual.
The concept of “work made for hire” can be complicated. This circular refers to its definition in copyright law and draws on the Supreme Court’s interpretation of it in Community for Creative Non-Violence v. Reid, decided in 1989.”
Their circular provides more detail.
Probably the most obvious example of “work made for hire” is work written by an employee as part of the scope of their employment. Think journalists. Other categories depend on an agreement between the parties. Thus, perhaps if you were employed by a publisher as a Production Director and wrote a few last-minute entries for an Encyclopedia, fleshing out its coverage of baseball, your work would only be work made for hire if you had a piece of paper in which your publisher asked you to do the work under these terms. The fact that I didn’t have such a piece of paper doesn’t really matter, as I had/have no intention of suing for what is an utterly worthless right. Of course the law courts might decide that this was in fact part of the scope of my employment even though my job didn’t involve writing stuff, and although I wrote in the evenings while not in the office. One of the constant problems about copyright law is that you can rarely be certain about things: you can only really know as a result of a law suit — and law suits cost more than the bone of contention is usually worth.
Publishers contracting out jacket design to freelance designers should no-doubt note somewhere in their communications with the designer that the result will be considered work made for hire. No way you want to be delaying a reprint gettting permission for a copyright holder.
Should scientific research be available free?
I find it difficult to give a clear Yes or No answer. It rather depends on the authors and their intentions and preferences. It just is the fact that a paper will automatically be protected by copyright, and copyright exists to provide encouragement to authors (by giving them some income ideally) to continue to make discoveries. As with any kind of property the author can assign the copyright, and this usually happens with journal articles, so that the copyright becomes the property of a publisher. I regard the ownership of a copyright by a learned society or a university press as a pretty unthreatening situation: after all the university press has a mission to extend learning, so might be trusted not to exploit this ownership. Of course not all publishers are idealistic university presses, and perhaps some university presses are less idealistic than others! I think we can assume that while academics’ motivation in writing journal articles is probably not to make money*, they definitely don’t do it to make money for large corporations.
Many authors of papers in scientific journals are employed by universities or research institutions, and are paid, via salary, to do the research that they write up in journal articles. Whether or not this salary comes from public funds, one could argue that the work has already been paid for by the public in one way or another. Journal publishers tend not to pay for the creation of the papers they publish: everyone, editors, referees, authors, being engaged in a sort of general-welfare effort. Now this is fine as far as it goes, but add that inevitable element — profit-seeking publishing companies — and the waters become turbid. Elsevier is everyone’s favorite villain in this scenario, and their profitability, in the 30% band, does nothing to blunt the attacks.
Sci-Hub to the rescue! (It even has a Wikipedia page.) A Russian organization, it has downloaded thousands of academic papers onto the web where they are available free of charge. Unsurprisingly Elsevier is suing.
At The American Council on Science and Health Chuck Dinerstein blogs about Sci-Hub, and the problems of the unaffiliated scholar. Being forced to go underground and get your stuff free can’t help stimulating feelings of guilt. But still, if it’s there, it’s pretty easy to us the “knowledge wants to be free” kind of argument to justify getting it. There appear to be more mundane problems with Sci-Hub: Scholarly Kitchen has an article on Sci-Hub and identity theft.
The price of academic journals is a real problem. It costs so much to subscribe to important journals that libraries find their book budgets squeezed more and more. Of course there are costs involved, but one cannot avoid the reflection that many journal subscription prices are ludicrously high: can 24 issues really “be worth” more than $15,000 a year? Presumably it can, or people wouldn’t be paying up. Publishers and their subscription agents seek to alleviate this price problem by bundling, but of course getting a discount on a couple of journals by subscribing to half-a-dozen more doesn’t really save you money. Justin Peters’ article at Slate on why academic journals cost so much is pretty sensible, but for me it goes off the rails when it claims “after World War II, heavy government and industrial funding of university science laboratories led to unprecedented specialization of the sciences. This outcome in turn led to a new crop of specialized scientific journals with similarly narrow foci so that these specialist scientists could have outlets in which to publish their research results. As the number of publications increased, academic libraries felt obliged to subscribe to them all or to as many as possible.” Isn’t it more likely that specialization in the sciences results from the nature of knowledge? We no longer talk about “natural philosophy” because to do so would obscure the differences between philosophy and logic at one end and, let’s say, interpreting the Hadron Collider’s results for particle physics at the other. The more we find out about our world the more complicated the structure of scientific (and all other) knowledge becomes. This isn’t a result of government funding: the ramification of government funding is a result of it.
Here’s an article from BloombergView, (linked via The Digital Reader). I’m always surprised at these people who go on about how iniquitous it is that publishers (especially these days Elsevier) charge for material which is available for less elsewhere. “If you want to read an article from the Journal of Financial Economics, and you don’t have a subscription or access to a library that does, publisher Elsevier will charge you $39.95. For one article!” shouts Justin Fox. You rarely see complaints at The Folio Society’s “unscrupulous” attempts to get you to pay $75.95 for Jules Verne’s Twenty Thousand Leagues under the Sea, when everybody knows it is available for free as a Kindle book! Hey; we publishers are in business! Our job is to get money from readers. If there are folks out there who find it simplifies their life to buy that article from Elsevier at $39.95, who are we to tell them they can’t do that? Naturally it doesn’t sound good, and is surely bad PR, but as long as there are buyers we’ll offer the service. The real problem arises when there’s not a free version out there of course.
Now we turn over another stone: is it OK for a publisher to republish a free, open access article, and charge money for it? At Scholarly Kitchen, Joe Esposito, using his early experience at New American Library as evidence, says yes, as long as the rights are taken care of. The ability of publishers to sell public domain stuff, Shakespeare, Dickens etc. for good money despite free versions being available continues to impress, and why shouldn’t this be true in the world of scientific journals? David Crotty, also at Scholarly Kitchen explains the legality of all this which involves Creative Commons licensing, not just ©.
We are, I suspect, stumbling towards a solution to all this. Now that we have the internet, Open Access together with an Article Processing Charge provided by the authors or their funding institutions, does show a way forward. In the old days when the only avenue to publication was through the printing press we had no alternative: in the modern on-line world we can’t allow gear-changing from that old world to obscure the purpose behind the entire system of research and publication. Barbara Fister seems to think so in this piece form Library Babel Fish. Naturally publishers are going to dodge and weave in an attempt to preserve their valuable properties — and as Rick Anderson recounts at Scholarly Kitchen they are doing so quite well. The very definitional difficulties addressed in yesterday’s post provide publishers with opportunities to appear to be doing good while at the same time maintaining the status quo. We need to straighten out our thinking. Is this another of those tragedy of the commons problems — worth nobody’s financial investment to cure? Publishers have an asset to protect and scholars and libraries cannot force change. If it’s not all available via Open Access the libraries still have to subscribe to the journal.
* The situation with books and the reproduction of chapters or sections from books is rather different. It is much more likely that an academic book is written with the hope of earning a bit of money for the author. Of course there may be no financial motivation, but only the author can know this, and thus publishers as agents for their authors, have an obligation to be vigilant in the protection of the copyright.
Some of the things I write about are pretty straightforward. There’s not too much more you can say about the Applegath vertical printing machine. Topics like Open Access and Copyright are so onion-form that as soon as you start writing you have to peel off another layer as the topic ramifies before you. I have three different draft essays on Open Access on the go, each with various fascinating links attached to them. If I amalgamate them into a massive unit it’d take hours to read — so of course just wouldn’t get read.
So, at least in part to clear my own mind, I thought I’d get rid of the basic definition problem here. Rick Anderson, an admirable clarifier writing at Scholarly Kitchen attempts to explicate overlapping definitions that tend to bedevil discussions of this subject. Those devilish details! In the course of that piece he links to an earlier attempt at the same thing. The second part of his discussion, focussing more on goals, can be found here. All these papers, and the links he provides, are worth reading if you have any interest in Open Access.
The Scholarly Kitchen has an interesting essay by Robert Harington of the American Mathematical Association under the title The Value of Copyright: A Publisher’s Perspective. This provides a sober overview of where we stand today. Harington reminds us that different authors have different “copyright” motivations.
Are there not now three types of copyright? If I’m right, that’s surely a problem, and they ought probably to be covered by three different legal arrangements.
- Copyright protects big, expensive projects, like movies, where a financial return is fundamental to the whole undertaking. Recouping the investment might take years. It represents part of the company’s capital base.
- Copyright also covers books, (and other works such as photos, drawings etc.) where a modest financial return is more often than not all that is needed. Because of lower investment costs this will probably be delivered more quickly.
- Copyright also covers on-line materials. These materials may often be the same ones as covered under 1. and 2., but are more easily shared, and are often published on-line with the intention that they should be more easily shared.
Copyright in things like software, typeface designs, industrial design in general, even maybe electronic games might form a fourth category, but might perhaps flip over to the Patent system.
Part of the reason, I think, that copyright has become overstretched is our habit of using the term “intellectual property”. Copyright wan’t designed to protect intellectual property, it was designed to encourage innovation by allowing protection to the physical expression of “intellectual property”, so that people would be encouraged to make more of it. Talking about just intellectual property allows the protectionists to expand the discussion without having to make any arguments (c.f. death taxes).
What strikes me is that the things you wouldn’t want people doing to your intellectual property are rather different in each of these three cases. In the third category, you don’t want someone citing, quoting from or reproducing your work without giving credit, or without indicating if they make any changes to what you wrote. And that’s it. This seems perfectly acceptable to almost everyone, and might, without damage, be made a perpetual requirement, having no direct reference to the rest of copyright law. It’s analogous to the Creative Commons license. One could see a system which imported along with the image, or link the appropriate notices. Something like RefME could possibly be tweaked to achieve this. We might call this kind of copyright Access Right.
If you are a corporation and invest millions of dollars in creating a movie series you want/need to recoup your investment, and then to continue making profits off the product. That is after all why you are in business. Because a corporation can live for ever, such a right might justifiably also live for ever. Let’s call this Investment Protection Right. We might reasonably charge a good-sized fee for granting this protection.
Then that would leave Copyright to cover the rest: in my world, books. Nobody has a problem with protecting the author from the theft of his/her work; it’s the number of years of that protection that we often find problematic. I think there’s a consensus out there that “life of the author plus 70 years” is just too long (based as it is on the “life” of Mickey Mouse). Allied to the automatic vesting of copyright in a work immediately it is recorded in tangible form, this lengthy term has created a huge category of orphan works — works protected by copyright, but by a copyright held by a person who has vanished, thus preventing anyone getting permission to use the work in protected ways. Reducing the term to a number of years without regard to the author’s survival would surely be sufficient. Maybe 25 years would be OK? Is it really essential to keep copyright protection going on John Grisham’s The Pelican Brief, published in 1992? A film was made of it in 1993, so Mr Grisham needn’t worry about Hollywood ripping him off. Warner Bros. no doubt have an interest in protecting the movie under my Investment Protection Right, but surely copyright in the book isn’t hugely valuable any more. Mr Grisham may still be happily receiving royalties but his publishing contract could allow for Random House to pay royalties whatever the copyright situation.
It might be right to point out that I selected Mr Grisham not as any kind of copyright protectionist — I have no idea what he thinks about all this. I chose the book as an example of a literary copyright which would have been very valuable in 1992 and for a few years thereafter, which still earns, yet which doesn’t on the face of it carry any inherent need to be sedulously protected for another 70+ years. In other words, a trade book.
See also Term of copyright.
Basically an orphan book is one whose author has gone missing. The Copyright Office has defined an orphan work as “any original work of authorship for which a good faith prospective user cannot readily identify and/or locate the copyright owner(s) in a situation where permission from the copyright owner(s) is necessary as a matter of law.” In the past such works presented less of a problem, mainly because copyright holders had to make an effort to to assert and renew their rights. The current assumption that a work is automatically copyright, and the automatic renewal of that copyright have created a group of works which remain in copyright although there may actually be nobody there to benefit from that right.
The problem is that making unauthorized use of a copyright work can bring a large fine if the ghostly author emerges from the shadows after your work has become a success.
Books, whether by activist or by invisible authors, do go out of print (not so much nowadays perhaps with the development of print-on-demand and digital storage); publishers do go out of business; even without that excuse they have been known to lose addresses and other paperwork; they often get taken over and subsumed within other organizations; authors do move house and fail to notify the publisher of a book they did years ago; authors have been known to want to disavow books they published in their youth; authors have been known to die intestate and impoverished. In some ways it’s rather surprising that there aren’t more orphan works. Just how many orphan books there might be is impossible to know: think how you might go about establishing a number. Wikipedia tells us that it was estimated in 2009 that there were 25 million orphan works in British public libraries, but this includes non-book items like photos and folk music.
Apparently Congress came close to adopting orphan work legislation in 2008, but of course they didn’t. The legislation would have worked by limiting the liability of an “infringer” who had made a diligent effort to locate the copyright owner, which remains the Copyright Office’s preferred, and quite sensible remedy. La lutte continue.
The Copyright Office continues to engage with the problem, adding to their liability limit remedy described above, a more controversial Extended Collective Licensing (ECL) proposal. Their Report can be found at the tab on the right hand side of the page linked to, labelled Full Report. Here’s comment from Cory Doctorow on the Copyright Office’s ECL plans, and here’s The Digital Reader’s round up of the issue, with lots of links. (I rather suspect that many of the objections cited here may have been taken into account by the Copyright Office in their final report.) The UK set up such an arrangement in 2014. The ECL idea looks similar in essence to the proposal under the aborted Google Settlement that royalties for digitized works would be collected centrally and distributed to relevant copyright owners by an agent established under the settlement. I don’t know that there’d be much objection to such a scheme if it only covered orphan works, but to scale it up and make it economically viable the Copyright office proposes extending it to all digital database scanning. Now it is undoubtedly true that it’s too expensive to obtain permission for the scanning of some works even where the copyright owner is identifiable and locatable. The potential revenue is just less than the cost of obtaining permission, which effectively means that access to the few people who’d benefit from the content is denied by market forces unless there were some general remuneration system.
We come across the tragedy of the commons everywhere. Here it is preventing the digitisation, and thus effective availability, of a whole age-cohort of books, orphans and weaklings together. TechDirt reports on the hole in culture thus caused by our copyright laws. I wonder if a solution might be found in some sort of compulsory public-domain-licencing after sales of a book drop below a certain level for a few years: in other words a sunsetting feature in the next copyright law revision. Nowadays we surely have the technology to track something like this. Allied to an ECL operation this might not be unacceptable to many authors.
Cambridge University Press, Oxford University Press and Sage Publications, Inc. recently lost a case charging Georgia State University with copyright infringement in the matter of digital copy reserves for class study. The plaintiffs allege that GSU administrators systematically encouraged faculty to offer unlicensed digital copies to students as a no-cost alternative to traditionally licensed course-packs. Having appealed, the publishers have lost again, as Publishers Weekly reports. The publishers are reviewing options, and may appeal, at least the damages awarded.
This seems to me a travesty — I base my view on the playground view of fairness rather than a strict application of the law, so of course I know before you object that I’m just wrong, wrong, wrong. But somehow the law has to be screwed up here. Can it really be that authors should go unremunerated for material they write which has the “misfortune” to be “adopted” for class use by a college? That just cannot be the intention of the copyright law. The situation has to be “merely” a consequence of badly drafted laws.
The law does clearly state that multiple copies for class use can be regarded as fair use, though such use would also have to pass the four factor test. (The relevant clause is quoted in my earlier post, linked to above.) Factor 1 is against the publishers, but it’s hard to see how digital reserves for class use could pass the fourth test: if publishers bring out a book for a class market, it’s surely going to affect the market if teachers are allowed to reserve an electronic text for the free use of all their students. Still, judgements don’t get made on the basis of one general factor: it’s detail and balance that the judge is seeking. If indeed the Court did argue that despite publishers mostly maintaining systems for licensing of paper excerpts, the fact that many do not have systems for licensing digital excerpts shows that there is no market for the licensing of digital excerpts, that just seems willfully dumb. What the situation suggests to anyone who has worked in publishing is that publishers have been slow to confront something which they regarded as a minor issue — criminally slow and arrogantly carefree. This omission is however surely not enough to justify making no payments to authors (and the publishers as their agents). Well, of course, in law it probably is. In the school playground though, no way.
We live in the world we live it: and in that world this judgement just isn’t fair. One could see a world in which it might be OK to use an author’s work free of charge for educational purposes: a world in which the system of remuneration for the work of compiling the material might be awarded differently. One could envisage a world in which students could attend university free of charge, and would be given the books, course-packs, and everything they needed for the learning process free of charge. It’s as easy as Bernie Sanders saying so. But of course such a world, however desirable, isn’t going to be a world in which university teachers work for free: it’d be a world in which we had worked out a way for the cost of tertiary eduction to be paid for from central government funds. We could of course have arguments about whether it was more important to get healthcare centralized like this before college education, or even a basic income which might collapse many government welfare programs into a single monthly payment to every adult not in full-time (free) education. The number of things we could ask our governments to fund for us is almost infinite: the resources the government has access to are not. So there would need to be action on the revenue side too. It does seem to me that there should in theory be enough out there to make something like this possible, but raising the tax just doesn’t seem politically feasible. The plan is all too radical for any non-revolutionary world we know of. Still, if authors were paid a fee, a stipend, an honorarium, a wage by central government, they could happily see their work distributed free to students. I’m not sure why the law courts should decide that in the absence of that tat, the tit of allowing students to use the product of their labor free of charge should be acceptable.
Not that it has any relevance in this discussion, but just in case some zealots are tempted to jump up and shout “But textbooks are ridiculously expensive. Publishers have been gouging us for years: it’s now payback time”, I will add that no doubt there are cases in which publishers have overcharged, or appear to have overcharged, but that this seems to present no reason to me for stealing the copyrighted work of an author (a different author too no doubt), however noble the use intended. (See also my earlier discussion of the expense of textbooks.)
We all know it when we see it: fair’s fair. We may be vaguely aware that other people see fairness slightly differently than we do, but that’s not important. What we feel to be fair is obviously what’s fair. We all leaned about it in the playground.
Unfortunately, for a concept so important in copyright law, fair use is “defined” in our law about as precisely as my first paragraph. Copyright owes its existence to a wish to safeguard intellectual property for the good of society; it wasn’t invented as a way to line the pockets of corporations. It was all about encouraging research and writing so that readers could benefit from the writer’s insights and go on and build on them. Now the purpose of copyright is to restrict access by others to “your” copyrighted works. Of course creators of intellectual property deserve to be rewarded, but the real motivation behind copyright was originally to protect the creators so that they’d be keen to create and share, and to make it straightforward for others to stand on their shoulders and extend the reach of knowledge. We’ve come a long way.
Our Copyright Law §107. Limitations on exclusive rights: Fair use says
Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
The trouble with this clause, which isn’t even 100% clear on the face of it, is that it’s only there as an illustration of the sort of thing that might be considered a valid excuse for using someone’s copyright without permission. It’s not a list of permissible uses, though it does first appear to set up a list of OK uses; but it then backtracks and subjects them to assessment by four tests. Effectively the only way to know for sure whether this or that use of copyright material is fair or not, is to be sued by the copyright owner, and to win the lawsuit. An expensive test. Most publishers have concluded that it’s better (cheaper) to work on the basis of when in doubt apply for permission. The US Copyright Office maintains a Fair Use Index where you can look up cases about fair use, and get bogged down in glorious detail.
This video from Professor Tom Bell is a sort of trailer trailer for his book Intellectual Privilege: Copyright, Common Law, and The Common Good.
Professor Bell doesn’t waste time on fair use in his video: but his criminal mastermind is surely innocent of the crimes she stands charged with. Making a copy of a page or two of a book for your own study is not an infringement of copyright: it’s fair use. The joke joke is that its creator would probably wish that everyone should forward the joke to as many friends as possible, so that maximum exposure was achieved, though “publishing” it might nevertheless technically be an infringement. Drawing your own Bart Simpson would only move into the realm of copyright abuse when you sought to publish it — you can happily draw away for yourself: if you made it into a parody, you’d probably be protected anyway. Since Professor Bell made his video Happy Birthday has of course been rescued for the public domain.
The video is taken from Copyright as a government-granted privilege at The National Review.
We tend to agree that translation, other than perhaps a sort of Googlized machine translation, is an art. We can all tell a good translation from a bad one. When we come across a great translation do we think we are looking at a new work of art or not? If it is a new work of art shouldn’t it be separately copyrightable, a transformative use made under the fair use exemption? The example given in this thoughtful discussion from IO: In the open, Samuel Beckett’s translation of Rimbaud’s Le bateau ivre, points up the case.
Of course the rest of Beckett’s work represents an instance of translation doubt. He wrote in French and then “translated” his own work into English. As Paul Auster tells us in his Editor’s Note to the Centenary Edition “Beckett’s renderings of his work are never literal, word-by-word transcriptions. They are free, highly inventive adaptations of the original text — or perhaps more accurately “repatriations” from one language to the other, from one culture to the other. In effect, he wrote every work twice, and each version bears his own indelible mark, a style so distinctive that it resists all attempts at imitation. No matter how deft or skillful my translations might have been, they never would have come out sounding like Beckett.” Of course the question here is irrelevant. Whether Beckett holds English language copyright in his role as author or translator is doubtless legally neither here nor there. I wonder if anyone has ever tried to translate the French version of one of his books into English (without looking at the Beckett version) or vice versa. It might be a good learning exercise.
I think the difficulty with all this is that this is not an issue that lawyers can be asked to rule on. The judgement as to whether this translation is transformative and may thus represent a new work in its own right is not a legal, right/wrong, matter of fact. It’s a judgement call and as such will be made differently by different people. You cannot prove the matter one way or the other. To me this means we need to play it safe and protect the author’s rights by adjudging all translations derivative of the source text.
Unsurprisingly publishing practice varies in this matter. No real problem with Farrar Straus’ decision that “A new verse translation” of Beowulf should be © 2000 Seamus Heaney. Nor should we be unduly exercised by Grosset & Dunlap’s omission of any copyright notice in their “Great French masterpiece of suspense and horror” The Hunchback of Notre Dame. They don’t even mention the word translation, let alone the name of the translator or even the year the book was published. Viking do what is probably now the approved practice: they say “Translation Copyright © Charles Johnson, 1977” in their version of Eugene Onegin. Schocken Books go the whole hog in their Franz Kafka: The Complete Stories: they claim the whole kit and caboodle as “Copyright © 1946, 1947, 1948, 1949, 1954, 1958, 1971 by Schocken Books, Inc.” — so take that Kafka! My Bertelsmann Lesering translation of The Divine Comedy into German is tersely marked “© by Atlantis Verlag AG., Zürich”. That “by” is intriguing: in English. I guess Germans think © is an English word too? Good practice nowadays does seem to be © original author, plus © translation.