The Translator’s Invisibility

The translator’s authorship is never given full legal recognition because of the priority given to the foreign writer in controlling the translation—even to point of compromising the translator’s rights as a British or American citizen. In subscribing to international copyright treaties like the Berne Convention for the Protection of Literary and Artistic Works, the United Kingdom and the United States agree to treat nationals of other member countries like their own nationals for purposes of copyright (Scarles 1980:8–11). Hence, British and American law holds that an English-language translation of a foreign text can be published only by arrangement with the author who owns the copyright for that text—i.e., the foreign writer, or, as the case may be, a foreign agent or publisher. The translator may be allowed the authorial privilege to copyright the translation, but he or she is excluded from the legal protection that authors enjoy as citizens of the UK or US in deference to another author, a foreign national. The ambiguous legal definition of translation, both original and derivative, exposes a limitation in the translator’s citizenship, as well as the inability of current copyright law to think translation across national boundaries despite the existence of international treaties. The Berne Convention (Paris 1971) at once assigns an authorial right to the translator and withdraws it: “Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work” held by the foreign “author,” who “shall enjoy the exclusive right of making and of authorising the translation” (articles 2(3), 8).[5] Copyright law does not define a space for the translator’s authorship that is equal to, or in any way restricts, the foreign author’s rights. And yet it acknowledges that there is a material basis to warrant some such restriction.

{10} Translation contracts in the postwar period have in fact varied widely, partly because of the ambiguities in copyright law, but also because of other factors like changing book markets, a particular translator’s level of expertise, and the difficulty of a particular translation project. Nonetheless, general trends can be detected over the course of several decades, and they reveal publishers excluding the translator from any rights in the translation. Standard British contracts require the translator to make an outand-out assignment of the copyright to the publisher. In the United States, the most common contractual definition of the translated text has not been “original work of authorship,” but “work made for hire,” a category in American copyright law whereby “the employer or person for whom the work was prepared is considered the author […] and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns ail the rights comprised in the copyright” (17 US Code, sections 101, 201 (6)). Work-for-hire contracts alienate the translator from the product of his or her labor with remarkable finality. Here is the relevant clause in Columbia University Press’s standard contract for translators:

You and we agree that the work you will prepare has been specially ordered and commissioned by us, and is a work made for hire as such term is used and defined by the Copyright Act. Accordingly, we shall be considered the sole and exclusive owner throughout the world forever of all rights existing therein, free of claims by you or anyone claiming through you or on your behalf.

This work-for-hire contract embodies the ambiguity of the translator’s legal status by including another clause that implicitly recognizes the translator as an author, the creator of an “original” work: “You warrant that your work will be original and that it will not infringe upon the copyright or violate any right of any person or party whatsoever.”