Translation Rights
by David Bellos
One of the problems with ownership of an intangible asset like a literary work is that it constitutes a property unlike all others. Reading a book leaves the book unaltered, whereas eating a loaf leaves naught. Translating likewise. But what about quoting it, ripping it off, adapting it for the theatre, excerpting it in a newspaper or in an anthology, or making an abridgement of it?
In 1710, Queen Anne of England signed the royal assent to an “Act for the Encouragement of Learning” which attributed the beneficial ownership of printed books “and other writings” to their authors and their assigns. The law had been a long time coming, and it was a strange compromise between the vested interests of London printer-publishers that were members of the Stationers’ Company, and the new-found interest of the reading public to have access to books at lower cost. The right it accorded to the creators of what was not yet called intellectual property was limited by design: fourteen years from first publication, renewable for another fourteen if and only if the author was still living; and twenty-one years from the date of the royal assent for works legally published and registered prior to that date. Its main aim was to suppress the piratical activities of printers not members of the cartel (mostly in the English provinces, in Scotland, Ireland and Holland), who had been able to bring out cheaper editions of books that the Stationers believed belonged to them. It made no mention of any rights beyond the right to license publication. And as it accorded the right to authors and their assigns, it seemed to leave the publisher-printers of the Stationers’ Company, who bought manuscripts from writers in order to print them, with unaltered control of the market for books new and old.[1]
The first challenge to this new law—not yet called copyright—came from a translation. It is a strange story. A witty cleric by the name of Thomas Burnet had published a work in Latin in the late 17th century.[2] It contained amongst other things a mildly comical imaginary dialogue between Adam and Eve. In 1716, a London publisher announced his intention of bringing out an English translation. Burnet’s brother and legatee went to court to suppress the publication on the grounds that it infringed the new right of ownership that the Statute of Anne had created, and of which he, as his brother’s heir, was the legal owner. The defendants argued that the Statute was aimed only “to encourage learning by giving the advantage of the book to the author” and “could be intended only to restrain the mechanical art of printing” but “not to hinder a translation of the book into another language, which in some respects may be called a different book, and the translator may be said to be the author, in as much as some skill in language is requisite thereto”. In 1721, when the case finally reached Chancery, the Lord Chancellor agreed that “such endeavors were not within the prohibition of the act”. But he quashed the publication nonetheless, on what would now be called public interest grounds: it was a book that contained “strange notions”, he said, and should not be made available in the vulgar tongue. It should remain in Latin only, “in which language it could not do much hurt, the learned being better able to judge” the work.[3]
The effect of Burnet v Chetwood was to keep translations out of the full compass of copyright in the UK for almost two centuries. They did not become fully protected until the Copyright Reform Act of 1911.
In the United States, the first copyright law was adopted in 1790, and it granted rights over literary work and a number of other related creations only to US citizens. As a result, no foreign work had any rights attached to it at all, and the young Republic translated a great deal. Works translated by citizens and properly registered were copyright in the translator’s name. The most stunning example was the superfast production in 1862 of Charles Wilbour’s version of Les Misérables, which sold more copies than any other book throughout the nineteenth century, and made Wilbour a rich man. (He spent the fortune on an expedition to Egypt, where he acquired many great treasures that now fill the Egyptian collection at the Brooklyn Museum of Art, including the Elephantine papyrus.)
Similarly, in the eighteenth and early nineteenth centuries, there was a vibrant and enriching industry of novel translation between England and France, and there’s no doubt that the rise of the modern novel owed much to the porosity of the line separating “French” from “English” literature.[4] Russia, of course, imported most of its theatre and reading matter by means of translation, from German, French and English (and Dostoevsky most certainly did not ask, did not need to ask, for the language rights when he brought an entirely revised and altered Eugénie Grandet to readers in Moscow and St Petersburg in 1844). After 1917, the Soviet Union disregarded foreign copyrights, just like the USA in the previous century, and through Maksim Gorky’s wonderful World Literature series and its many successors, brought the treasures of many languages to an increasingly vast reading public at little cost.[5]
So where did the idea of translation rights even come from? Not from China or Japan, that’s for sure, nor from Russia or the USA. It was the brainchild of the capital of the nineteenth century: Paris, France.
France had by then constructed a conception of authors’ rights on grounds rather different from those that held sway in England. Whereas the British invention was construed as a right of property, deriving its justification from the labour theory of property attached to the name of John Locke, France imagined the creations of the mind as an expression of personality, and authors’ right as an inalienable dimension of the fundamental right of citizens to dispose of their own persons. That’s why the Lakanal Law of 1793 (the first true copyright law in France, and which remained part of the civil code until 1957) covered much more than printed books—all forms of writing, musical composition, works of visual art, including engraving, painting and sculpture fell under the droit d’auteur. (That’s the main reason why the phrase cinéma d’auteur remains untranslatable into English and is almost always misunderstood when used outside of France. What it does is to stake a claim as to the ownership of the film, not to its style.)
One of the problems with ownership of an intangible asset like a literary work is that it constitutes a property unlike all others. Reading a book leaves the book unaltered, whereas eating a loaf leaves naught. Translating likewise. But what about quoting it, ripping it off, adapting it for the theatre, excerpting it in a newspaper or in an anthology, or making an abridgement of it? These were the issues that occupied copyright law in the eighteenth and early nineteenth century, and so a body of doctrine grew up about subsidiary rights. Was translation one of them? For a long time, the British answer was a resounding no. In the US, it was a no even for Harriet Beecher Stowe: a German translation of Uncle Tom’s Cabin, done in Philadelphia by a US citizen, was deemed in 1853 not to infringe her copyright. Justice Robert Grier decided that a translation was not a copy of the original, and therefore did not infringe. This decision (though it was unpopular at the time and contested by many) epitomized the traditional approach that saw copyright exclusively as a way to suppress illicit reprinting.[6]
In France in the 1830s and 1840s, however, perceptions began to change. Balzac, Sand, and especially Victor Hugo became increasingly aware that their non-French audience was much larger than their national readership. In the language of the day, France was providing the rest of the civilized world with the greater part of its reading matter for free. Initially, the problem was to stop firms like Tauchnitz in Leipzig and Nelson in Edinburgh from reprinting works in French for sale throughout Europe. Soon, however, piracy suppression morphed into the idea that a French work when translated was also the same work as the original, and that the diffusion of French culture throughout Europe ought to bring rewards to its creators. The campaign for translation rights began in earnest with the creation of the ALAI, the Association littéraire et artistique internationale, founded in Paris by Victor Hugo himself. With a major conference in Brussels in 1858 and a huge and illustrious panel discussion at the Exposition universelle of 1879, ALAI finally secured an intergovernmental conference on copyright protection held in Switzerland, starting in 1883, shortly after Hugo’s death.[7] The conference resulted in the creation of a copyright union, confirmed by the signature of the Berne Convention of 1886. For the first time, translation was included among the subsidiary rights of copyrighted works valid in all countries of the Union. There were only twelve of them at first, and it’s important to note that the USA, Russia, Sweden,[8] Japan and China were not among them.[9] Since then, more and more states have joined. Over the course of the last century, the number of participating nations has grown, slowly at first, and then at an increasing gallop, to reach 179 member states today, covering 99% of the global population. By joining the union, each state signs up to the translation right. Since the 1994 Marrakesh Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), failure to join Berne excludes a state from membership of the World Trade Organisation, and not even the DPRK wishes to be cast out of the concert of nations in that way. Only a handful of Middle Eastern, Asian, African and island states now stand outside of the grip of international translation rights.[10]
The translation right of the original Berne agreement was a very limited thing. The author was granted the sole right to license translation to be published in any member state of the union for ten years after first publication in any other member state, but past that deadline, the right fell into the public domain. This clause was copied from the 1851 Anglo-French copyright treaty (which gave authors a translation right for five years after publication),[11] despite the fact that it had done Victor Hugo no great service. On the advice of a French republican expat in London, he foolishly licensed the translation of Les Misérables to a military historian, Lascelles Wraxall,[12] who had his own view on who won at Waterloo. As a result, he cut out the whole of Part II, Book 1 (“Waterloo”) as well Hugo’s essay on the history of Paris’s sewers, and he also amended a great number of other passages to fit the book to what he saw as the British taste. Because the translation was itself protected by copyright, it remained the sole authorised version in the British Empire for many decades. Its heavy editorial style set the model for all later UK translations, including a Penguin Classics version by Norman Denny that is still in print. British readers did not get to read the whole of Les Misérables in the right order of chapters until 2007,[13] a decade after the Chinese.
So copyright in translation—both the right over translations, and the rights of the translator—does not always work out for the benefit of authors, readers, or even translators.
But as the United States took successive, tiny steps towards becoming a full partner in intellectual property protection (though it did not ratify membership of the Berne Convention until 1989, just before Albania did), it slowly came to realise just how valuable the translation right was—not to translators, far from it, but to what we now call “content owners”, that is to say, the publishers and producers of English-language books, movies, songs, and software. In 1891, the Chace Act allowed the president to extend copyright protection to authors from select nations; but it limited that privilege by requiring the works to be printed from type set in the United States. The general aim was to put the US in a stronger position to obtain reciprocal international copyright for its own writers: it was an embarrassing fact that Mark Twain had been obliged to take up residence in Canada in order to obtain any international rights at all for The Prince and the Pauper (1881). A new copyright act in 1909 confirmed these arrangements, and in 1919 some additional protection was offered to foreign authors based in those states with which the US had bilateral treaties; in 1948 the “manufacturing clause” was dropped. But general international copyright did not arise in our pirate nation until 1976, when the main copyright act that now holds sway as US Code §107 came into force. From an American perspective, therefore, translation right is a recent phenomenon. It only exists as an add-on to the more economically important reciprocal rights covering adaptation (on stage and in the cinema), music, recording and software.
However, the revenue stream from international rights now exceeds the income from domestic sales of even moderately successful English-language novels and plays by a very large margin. That’s because there are always more readers in the rest of the world than at home, wherever that is. The revenue trickles down to authors, though of course in much smaller amounts, with the result that most American authors who live by the pen (and there still are some) make most of their income from readers in languages other than English. The reverse is only the case for the handful of international authors who make a breakthrough into the American market (and through those English translations, into the rest of the world). Ironically, Thomas Piketty’s celebrated neo-Marxist treatise on Capital in the 21st Century, despite its total omission of any consideration of intellectual property, has made its author a wealthy man through the sale of translation rights. Of the two million copies sold world-wide, less than 10% were of the original French version.
But let us get back to first principles. By what philosophical logic does the attribution of an author-right in a created work also grant control of subsidiary or derivative uses of the work, such as translation?
Since the middle of the nineteenth century, the right of an author (but in most cases, the right of the firm or corporation to which the author has transferred her copyright) has been progressively transformed from a limited privilege of relatively short duration into an almost eternal property. Owners of other kinds of property do control almost all possible uses of their asset by all other persons (to live in your house or to remodel it, to drive your car, to eat your bread…), and so by assimilating a copyright to a property, content owners have come to regard all derivative uses as their private domain. The duration of the author right has been extended again and again, from 28 years to 56, from 56 to 65, from 65 to 70, and now, for works made for hire, to 95 years from publication or 120 years from creation, whichever is the shorter. Its scope has also been extended, piecemeal, through many separate pieces of legislation, to include abridgment, stage and film adaptation, performance, recording, photocopying, and distribution through the internet. Translation is just one of the subsidiary rights that was tacked on, country by country, year by year, over the last century. It has no more profound logic to it than the chance to make publishing in those countries that export intellectual property vastly more profitable than in those countries that do not.
Translation right has probably had more impact on the practice and profession of translating than any other change in the last two centuries. From the exciting free-for-all of eighteenth-century European culture to the creation of a mass reading public in the United States in the nineteenth century, from the huge impact of Western literature in Japan and China in the earlier part of the twentieth century to the impressive achievements of the Soviet Union in creating a literate and cultivated population after 1917, “pirate nations” have shown many times the beneficial effects of the refusal of translation right.[14] On the other hand, the spread of translation right has given rise to a new idea of the translator not as creator, but as a hired hand whose underlying job is to “serve the source”, where “the source” is in legal and economic fact, the “content owner”.[15] The current notions of “fair and full” translation and respect for the original, which would have stumped Chapman, Dryden and even Korney Chukovsky, are institutional shadows cast by the twentieth century regime of intellectual property rights. As is the steady, relentless proletarianisation of the profession of translator.
I’m tempted to say: Translators, unite! You have nothing to lose but your chains!
But there is little chance that you will. Translation right is now an integral part of the US economy, in which the copyright industries generate revenue of quite stupendous proportions.
One recourse for the practising translator is to look to works written by authors who died prior to 1951. But that is a very long shot. An editor at a well-known collection of world literature confessed to me there are at most forty titles for which they would commission a retranslation. You can probably make the list yourself, because its contents never vary. The world canon in English is quite tiny.
That’s why so much of contemporary translation studies focuses on retranslations of a limited set of out-of-copyright works.[16] Translation right may regulate the world republic of letters in ways that we feel we understand, but it makes no contribution to the spread of enlightenment, enjoyment or creative play. But it will be with us for a long while yet.
David Bellos
January 5, 2022.
NOTES:
[1] Stat. 8 Anne, c.19. On the history, politics, and effects of the Statute of Anne, see John Feather, Publishing, Piracy and Politics: An Historical Study of Copyright in Britain. London: Mansell, 1994.
[2] T. Burnet, Archaelogica Philosophica, 1692.
[3] Ronan Deazley, commentary on Burnet v Chetwood, Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org (henceforth PSC).
[4] See Mary Helen McMurran, The Spread of Novels: Translation and Prose Fiction in the Eighteenth Century. Princeton University Press, 2010.
[5] Maria Khotimsky, “World Literature, Soviet Style. A Forgotten Episode in the History of an Idea”, Ab Imperio 3 (2013): 119-154.
[6] Stowe v. Thomas, 23 F. Cas. 201 (C.C.E.D.Pa. 1853), available at PSC.
[7] The ALAI remains a powerful lobby in the expansion and internationalization of copyright protection; see https://www.alai.org for current activities. Alongside Les Misérables, it is undoubtedly Victor Hugo’s most durable achievement.
[8] That is why Jack London’s Martin Eden, in the 1909 novel of that name, makes a sharp distinction between his translation rights in French and German, and his prospects in Swedish. See Martin Eden, Penguin Classics, 1993, p. 471.
[9] Some of the signatories were of little consequence—Haiti, Liberia and Tunisia, for instance. The real contracting parties were Britain, France, Spain, Belgium, Germany, Italy and Switzerland—all European, all contiguous, and using only five languages between them.
[10] The current (2022) list of non-signatories is: Afghanistan, Angola, Burundi, Cambodia, Eritrea, Ethiopia, Iran, Iraq, Kiribati, Kosovo, Maldives, Marshall Islands, Myanmar, Palau, Palestine, Papua New Guinea, Seychelles, Sierra Leone, Somalia, South Sudan, Taiwan, Timor Leste and Uganda.
[11] Anglo-French Copyright Treaty, London (1851), article III; full text at PSC.
[12] In his full glory, Sir Frederic Charles Lascelles Wraxall, 3rd Baronet (1828 – 11 June 1865).
[13] Victor Hugo, Les Misérables, translated by Julie Rose. London, Penguin, 2007. It was heavily and rather meanly criticized, partly because Julie Rose is Australian. In 2013 Penguin finally brought out a “proper” British-English translation by Christine Donougher, under the title The Wretched. Wilbour’s full American translation of 1862 could not be sold in the UK for copyright reasons, and officially it is still not available there.
[14] Two works in praise of piracy are well worth reading: Adrian John, Piracy: The Intellectual Property Wars from Gutenberg to Gates. University of Chicago Press, 2009; and Lionel Gossman, Spreading the Word: Scottish Publishers and English Literature, 1750-1900. Transactions of the American Philosophical Society, Volume 109, Part 2.
[15] I have yet to come across a work on translation method or translation history that deigns to mention these facts.
[16] I’m not going to check, but I’ll buy a drink for any reader who can find in George Steiner’s After Babel any serious discussion of the translation of a work that was still in copyright in 1975 (in the US at that time, copyright in foreign works covered only those published in approved countries after 1919).
David Bellos is Meredith Howland Pyne Professor of French and Comparative Literature at Princeton. He has translated more than thirty books from French and is the author of biographies of Georges Perec, Jacques Tati and Romain Gary. His book about translation, Is That A Fish in Your Ear? has itself been translated into many languages, most recently Japanese, Russian and Farsi.
Originally published on Hopscotch Translation
Tuesday, February 8, 2022
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