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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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Copyfight

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August 23, 2006

Copyright vs Scholarship

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Posted by Alan Wexelblat

In this case it's feminist scholarship. In August of 2004, the New York Times published an op-ed by Sarah Glazer, reporting on the disgraceful state of translation of the feminist classic The Second Sex by Simone de Beauvoir. Glazer covers in detail how the translator's ignorance of philosophy, particularly the Existential and Phenomenological philosophical traditions, led to a work that - in English - has virtually the opposite meaning of the original French.

According to a December 2005 entry in the blog Alas, there are translators and publishers who would love to re-do the translation and, presumably, correct these and other errors. However, the current publisher (Knopf) has the exclusive English-language rights locked up until the book goes into the public domain - in 2056. They are also supposedly refusing both to do an updated transation themselves, and to allow anyone else to publish one.

Don't ask me why it took me this long to hear about this. Just riddle me this: is there any scholarship or educational exception in copyright law that would let someone create a new translation from the original French? I realize one couldn't do a corrected edition of the current copyright book, but wouldn't a proper translation be sufficiently different to qualify as a new work?

Comments (11) + TrackBacks (0) | Category: IP Markets and Monopolies


COMMENTS

1. ruidh on August 23, 2006 6:41 PM writes...

Any English translation is a derivative work of the original French text. So, you would ordinarially need the permission of the author to prepare the derivative work. But it appears that when they authorized the first English translation, the copyright owners sold the exclusive right to authorize an English translation, so the original copyright owners can't authorize the translation. Since the 4 fair use factors are not likely to balance in your favor, you are sunk.

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2. drwex on August 24, 2006 9:03 AM writes...

Bummer. Oh well.

Permalink to Comment

3. Thomason on August 25, 2006 8:06 AM writes...

A scholarly work on a literary work is fair use. Writing a comparative essay on the original and the Knopf translation would seem to be fair use. Where the fair use tends to fall away is when the essay is done for commercial gain, and less for scholarly discussion. Also, fair use is measured by the extent to which you use the copyrighted work. So, if the scholarly work quotes extensive passages from the original and the translation, then it may use too much to be a fair use.

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4. Crosbie Fitch on August 29, 2006 10:31 AM writes...

Is there no hope that a copyleft martyr may produce a translation and suffer the consequences?

I find it strange to contemplate that even in this enlightened age someone may end up imprisoned for translating a book.

A cause célèbre awaits the right person...

Permalink to Comment

5. Crosbie Fitch on August 29, 2006 10:34 AM writes...

A cause célèbre awaits the right person...

(The lesson here is NOT to preview)

Permalink to Comment

6. Anonymous on August 30, 2006 6:55 AM writes...

Or not to use accented characters. Since the Internet and its protocols were largely developed initially by Americans, they don't tend to work well, when they work at all. Shame, but it's true, and plain "celebre" will be universally recognized and understood.

Permalink to Comment

7. Crosbie Fitch on August 30, 2006 10:53 AM writes...

I think we are better off criticising the software and those who develop it, rather than our computers or their users - don't you?

My tadette of french wit was ruined by some coder's ineptitude.

Your jibe that I expected too much from a US website was also ruined - as you became hoist by your own petard.

Let's just call the whole thing off eh? ;-)

Permalink to Comment

8. Ygor Valerio on September 6, 2006 12:08 PM writes...

I actually disagree with Tomason's opinion, as I don't believe there is such a thing as a standard amount of a work that may be reproduced in order to be considered fair Use. A report put together by the Brennan Center for Justice (NYU) - "Will Fair Use Survive?" mentions two cases that well illustrate the need for a comprehensive analisys of all the factors besides the sole amount: a 1985 case in which the Supreme Court did not consider "The Nation"'s magazine usage of 300 words from a whole book to be fair use, whereas in 1986, in Harper&Row vs. Nation Enterprises, the fair use excuse was accepted to allow the copying of as much as 7,000 words.
However, I see only one way out to correct this historical violence made to Beauvoir's piece: to have Ms. Glazer write a critical work pointing translation mistakes, where there would be a lot of room to actually reproduce large chunks of the translation in order to show better ways of doing it.

Permalink to Comment

9. Anonymous on September 10, 2006 6:57 PM writes...

There's always the radical approach, if you don't want to make money or get famous off it: make a better translation yourself, on the QT, and slip it onto filesharing networks. Technically illegal, but not *wrong*, and if they can't figure out who to sue...

Permalink to Comment

10. Laura Quilter on September 21, 2006 7:25 AM writes...

Rather than a "fair use martyr", I wonder if there ought not be many anonymous fair use martyrs. Why not try an open-edit, wiki-style collaborative translation? Combine the "essay" (with commentary & analysis) with new edit opportunities, passage by passage.

Ideally one would have the opportunity to view not just "current" and "last" versions side-by-side, as in wiki, but see several versions all at once; along with discussions below of why & how particular translation decisions were made, and commentary arguing, refuting, discussing particular decisions. Ideally, for any passage a reader/user could see the original in French; the current authorized translation; and various alternative translations, along with commentary and discussion.

Literary translators, is this even doable? Or perhaps such a collaborative-editing translator tool exists already?

As for fair use or copyright infringement, well, I imagine rightsholders might still in some circumstances protest such an endeavor, but the scholarly value of such a work should be pretty obvious. To my mind, at least, that would be significantly transformative of both the original text and the authorized translation. Yes, it's a reproduction and the creation of a new derivative work. It's also highly transformative and an exercise in criticism.

Permalink to Comment

11. Laura Quilter on September 21, 2006 7:34 AM writes...

Rather than a "fair use martyr", I wonder if there ought not be many anonymous fair use martyrs. Why not try an open-edit, wiki-style collaborative translation? Combine the "essay" (with commentary & analysis) with new edit opportunities, passage by passage.

Ideally one would have the opportunity to view not just "current" and "last" versions side-by-side, as in wiki, but see several versions all at once; along with discussions below of why & how particular translation decisions were made, and commentary arguing, refuting, discussing particular decisions. Ideally, for any passage a reader/user could see the original in French; the current authorized translation; and various alternative translations, along with commentary and discussion.

Literary translators, is this even doable? Or perhaps such a collaborative-editing translator tool exists already?

As for fair use or copyright infringement, well, I imagine rightsholders might still in some circumstances protest such an endeavor, but the scholarly value of such a work should be pretty obvious. To my mind, at least, that would be significantly transformative of both the original text and the authorized translation. Yes, it's a reproduction and the creation of a new derivative work. It's also highly transformative and an exercise in criticism.

Permalink to Comment

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