A year ago I published the results of my research into translation copyright, Copyright “Rustling” in English-Language Translation: How Translators Keep (and Lose) Rights to Their Work—Data from Translations Published in 2014. Subsequently, I participated, along with
many other colleagues, in a months-long campaign against what I called “copyright rustling”—that is, the common practice by which publishers of translations register translators’ copyrights in someone else’s name—the publisher’s, typically.
In the year since, I’ve noticed a shift in the copyright battle. Three recent experiences, all of them with Italian clients, have made me wonder whether a willingness to give lip service to the question of copyright has increased in direct proportion to a growing acceptance of the practice of treating a translator’s work as someone else’s property.
Of particular concern to me in this context is the proliferation of so-called literary agencies, which are just translation agencies dressed up in slightly swankier clothes. The only difference is that the kinds of translations they commission are intended solely for publication.
Without attempting to argue that literary agencies are inherently evil, it is still possible to observe that one of the purposes they sometimes serve is to provide a means to bypass issues of copyright and of translators’ intellectual property rights.
Often, that is, they attempt an end run around copyright law within the European Union or the U.S. by treating all translations as work for hire—even when those translations are undertaken for the sole purpose of being sold to publishers. In reality, the question of whether the client “employs” the translator (whose work might therefore legitimately be considered “work-product” that belongs to the client) is not complicated in the case of translation for publication (which might be called, in a sort of useful calque, “editorial translation”). And yet literary agencies and publishers often go to great lengths to pretend that it is.
Sometimes literary agencies are engaged by authors directly, sometimes by agents, and increasingly by publishing houses themselves. By inserting themselves between the translator and the party that would normally be the translator’s direct client, which is to say the publisher, they are able to maintain the thin fiction that the translation is no longer produced by an author (i.e., the translator) who inherently possesses intellectual property rights. Instead, it is produced by an agency.
To get down to specifics, a literary agency recently commissioned me to translate a catalog for an art exhibition that it then intended to publish through its editorial arm. In this case, the distinction between the literary agency and the publisher was non-existent: the literary agency was also the publisher—a small publisher, to be sure, but a publisher for all intents and purposes. The catalogue was to appear in print with an ISBN number, just as any book would.
During negotiations, I made clear that I would not transfer copyright to the agency/publisher, and I was surprised when the agency raised no objection. Rather, I would retain copyright in my own name but, as with all publishing-related translations, I would lease the copyright for a specific fee, for specific purposes, and for a specific length of time. This is, in fact, what any contract with a publisher should do.
As I say, the agency did not balk. I completed and delivered the translation, and then the fun began. What I quickly learned was that, in the estimation of the literary agency, the original author of the text in Italian had every right to modify the translation as he saw fit. When I begged to differ, I was told that the agency’s approach towards clients was one of “maximum flexibility.”
I certainly understand the “clients are always right” mentality, which is one of the reasons why I so rarely work for agencies, but my objection was twofold. First, while I accept an agency’s choice to adopt such a business strategy, I would argue that it has no right to impose that requirement on me as a condition of working with the agency. (In fact, the agent told me that, unless I accepted “maximum flexibility,” they could not send me future projects.)
More specifically, what the agency called “flexibility” was actually a violation of my contract and of copyright law, both of which specifically spell out that the translator is the author of a translation and that her or his work may not be altered without consent. The fact that this stipulation is frequently ignored and blatantly violated does not make it less so.
What happened in this case, then, is that the agency officially recognized the translator’s copyright but unofficially treated that copyright as meaningless. I had no right to control my text, even in a case in which I believed that the agency’s client had introduced errors that significantly altered the quality of the translation. My only recourse was to take my name off the translation—that is, to abandon my copyright.
I don’t believe the literary agency set out to try to swindle me, but I do know the agent was shocked by my objections. That, in turn, tells me a couple of things, foremost among which is that many translators never raise such issues. They have capitulated to the law of the market, and they don’t see why it matters. They don’t understand the need to make a fuss.
Well, one way in which it matters hugely is that their decisions affect not solely their own businesses, but mine as well.
In a second instance, an author wanted me to translate an unpublished novel and was happy to accept my condition that I would not grant rights to the use of the translation until he found an English-language publisher, at which point negotiations could proceed between me and a future editor. He did, however, want me to include a clause in our agreement to the effect that I would accept any English-language publisher he found, even if that publisher insisted on making changes I didn’t like to the translation or wanted to take my copyright. In other words, he was happy to say that he recognized my intellectual property rights in the translation—he just wouldn’t recognize them in practice.
In a third case, finally, commercial translations intended for use as signage and brochures at an international food and beverage fair were challenged by the client—not on the basis of misrepresentation of the product but simply because the client, who was not a native English speaker, felt he could sense shades of meaning in the translations that were not present in the original.
He was wrong, and I’ll give you one small example. At a certain point, fruit grown by the client was described as being of alta qualità. I translated that small fragment of a sentence as “high-quality fruit.” The client characterized the translation as excessive, claiming that it violated the spirit of the original. The client wanted what it called a “low-key approach” and insisted on changing the translation to say simply that the firm produced “quality fruit.”
Here, there was no grave violation of the character of the translation; there is obviously no substantial difference between “high-quality fruit” and “quality fruit.” The issue is the nature of the objection; namely, that the client demanded the right to impose its preferences on the translation. I leave it to the reader to judge whether “high-quality” is a defensible translation of alta qualità.
This was, of course, a commercial translation and not a translation for a publisher. As such, it was not subject to copyright in the same way, nor do I claim it was. The point I would like to make in grouping these examples together concerns a lack of respect for the work of the translator.
In my view, a growing disregard for the intellectual-property interests of translators, together with a translation workforce that is increasingly amateur and incompletely trained, has led to this untenable situation.
In addition, as English becomes more diffuse throughout Europe and the rest of the world, there is the pervasive sensation that “everyone” knows English and can therefore judge its quality. I am not raising a new or particularly original complaint in saying this, so I will leave it at that.
I will, however, suggest that if clients have become accustomed to working with translators who are not native English speakers and who are minimally trained in their craft, then it becomes not only acceptable but reasonable to question the translator’s work.
This is the context in which failure to recognize translators’ copyrights in the publishing realm intersects with distrust for the translator’s work in all realms. The clear connection is the idea that the translator is not an author and that the translator’s work belongs to someone else—not as a legal principle but as a practical consideration.
I don’t mind reaping what I have personally sown, but I am deeply troubled that my business must suffer because others have chosen to sow among thorns. Those thorns have sprung up now, and they are choking us.