The Bombay High Court recently passed an interim injunction to restrain publication of a translated version of the Bhagavad Gita by Thomson Press. (Read the order here). The Bhaktivedanta Book Trust (“BBT’) claimed copyright in Srimad Bhagvatam, a translated, reprinted version of the Bhagavad Gita.
BBT contested that Thomson Press had reprinted a ‘classic’ version of Srimad Bhagvatam, a translation in which they held copyright. Further, they argued that there was no license agreement for the publication of this and other works by Swami Prabhupada between the parties as was claimed by Thomson Press. Justice Patel held that there was a strong prima facie case made out by BBT for the ownership of the work, as they had registered their copyright in the translation. He went on to grant an interim injunction to prevent Thomson Press from printing and reproducing the impugned work in any manner until the final disposition of the suit.
Translations as Derivative Works
The bundle of rights guaranteed in Section 14 of the Copyright Act (‘Act’) includes the right of authors of literary, dramatic or musical works to either make a translation of the work, or authorise the making of a translation. Further, authors have the right to reproduce, issue copies, perform, and to make cinematographic films/sound recordings in a translated work as well. It is important to keep in mind that translations are given the same importance as adaptations, and are perhaps to be treated as derivative works.
This isn’t the first time the copyright in a translated version of a religious text has been in dispute. In the 1999 case of Hafiz P.H. Abdul v. Abdurahiman, the Kerala High Court adjudicated on the alleged infringement of a translated version of the Quran. The Respondent argued that as the author of the translation, he had the right to prevent others from the using parts of his work. The Court recognised that even in translations, where “brain, labour and skill have been used, or where some literary works are carried out, the person who did the said work in the translation is the author having copyright over the same.”
The Delhi High Court, in the famed 2008 case of Eastern Book Company v. DB Modak had classified secondary or derivative works to be literary works based on existing subject matter, but held that such works classified for independent copyright protection should enough skill, capital and labour be expended on it. It is these factors that must be kept in mind while working on a translation of the work. The Madras High Court in the 1958 case of Blackwood & Sons v. A.N. Parasuraman was also faced the ownership of translations of Rabindranath Tagore’s works. The Court considered the provisions of the Copyright Act, 1914 before coming to the conclusion that the copyright in the translation vested in Rabindranath Tagore before it was validly assigned to the Plaintiffs in 1919.
Should the copyright in the original work still exist, permission/a license must be sought before the translation can be made. If the work is in the public domain – such as the bhagavad gita – there still might be an independent copyright in the translation, should it satisfy the above factors. However, if the author is dead, unknown, or cannot be traced – an application should be made to the Copyright Board to publish a work in which copyright still subsists.
License to Produce and Publish Translated Works
Section 32 of the Act lays down that ‘any person’ may apply to the Copyright Board (‘Board’) for a license to produce and publish translated dramatic or literary works in any language, but only after a period of seven years from the first publication of the work. However, there are a few exceptions to this rule. Should the translation be for purposes of teaching, scholarship, or research, the application may be made after three years. Additionally, should the translation be in a language which is not in ‘general use in any developed country’, the application may be made after a year.
The applications should be made in the prescribed form, as well as deposit such fee as may be prescribed. After holding an inquiry as may be prescribed, the Board may grant a non-exclusive license to the applicant mandating the payment of pre-determined royalty. Further, this Section lays down conditions under which a license may be granted. A few of which are as follows:
- A translation of the work has not been published by the author in the seven/three/one year period, as applicable.
- The applicant has proved to the satisfaction of the Board that he had requested permission from the author and then been denied authorisation to publish said translation. Where the applicant was not able to locate the author, the applicant must show that he requested the publisher for permission at least two months before applying. For translations for teaching, scholarship, or research – a period of six months should have elapsed from the request for permission, and for translations not in general use in developed countries, nine months.
- The Board must be satisfied that the applicant is competent to produce and publish a correct translation, as well as have the means to pay the determined royalty.
- The author should not have withdrawn copies of the work from circulation.
- The author of the work should be given an opportunity to be heard if it is feasible.
To the best of my knowledge, there have been no other cases than the ones discussed above that have dealt with the copyright that subsists in translations. I’d love to hear from our readers on this!
Image from here.
Interesting. I’m not aware of any other judgements, but it seems obvious that a translation is as much a literary work as the work translated; if made without the permission of the copyright owner of work translated, then it infringes the copyright in the translated work. See Section 13: copyright does not subsist in a film or sound recording that infringes other works, hence it would subsist in other infringing works. Inclusio unius…. Now, to be the Devil’s Advocate: the copyright owner of an infringing translation would have remedies against infringement of the translation. This plaintiff’s suppression of the fact that his own work was infringing (assuiming he knew it) would not even be a material suppression qua his cause of action. The copyright owner in the original work would not be a necessary party: the matter could be completely adjudicated without him. The copyright owner of the work infringed would, of course, have remedies against both the plaintiff and the defendant, but in a separate suit.
Dear Sir,
Thank you for bringing up these pertinent points! Just a thought – following your interpretation of Section 13, would the rights guaranteed to an infringing translation under Section 14 then be subject to permission from the original owner of copyright in the work that was translated?
My Devil’s Advocate argument goes like this: the translation, would undoubtedly infringe the rights of the copyright owner of the translated work unless the latter had permitted the translation; but that issue has to be distinguished from the translator’s rights in his translation as an independent, original literary work. (BTW, if translation were a form of reproduction, then why should section 14 make it a distinct, separate right rather than an instance of reproduction.; hence it counts as an independent literary work.) This being so, the author of the translation independently owns all the different rights subsisting in an original literary work under Section 14(a) and can enforce them independently (as explained in my earlier comment). His liability to the copyright owner of the translated work is a different issue altogether. Now, if i were a Judge, I would eschew literal interpretation of the law and deny relief on grounds of public policy–that is, if I came to know that the translation was infringing. But I might not come to know of it and the plaintiff (owning copyright in the translation) would not strictly be guilty of material suppression for failing to acquaint me with the fact; indeed the plaintiff, if an assignee, might himself not know that the translation
Absolutely Sir, but wouldn’t the lines between the ownership of the two works blur if the exercise of the exclusive rights under Section 14 by the translator causes economic loss to the original copyright owner, for example?
Another point to be noted is perhaps the applicability of Section 57, if the translation ‘distorts’ or ‘modifies’ the work in a manner prejudicial to the original author’s reputation.
The author might have a cause of action under Section 57 with any translation, regardless of any issues regarding copyright infringement I don’t see that coming into the picture.
As far as ownership of copyright under the Act is concerned, the author is the first owner of copyright. If we proceed on the basis that the translation is not a reproduction of the translated work then on this basis, the author of the translated work is the copyright owner of his own original work. The author of the translated work may be aggrieved by infringement of his own work, but whether he has suffered economic loss is hypothetical, a question of fact that he must prove. His suffering loss does not confer copyright ownership on him, it’s the other way round: he may (or may not) have a claim to damages or accounts depending on the facts of the case (though of course, he can claim an injunction). A claim to damages arises from ownership, rather than being itself evidence of ownership.
If a translation is held to be a reproduction of the translated work, then the translator’s contribution is hard to disentangle from the original and to that extent he would not have a right to claim sole authorship of an original work.. I have suggested that arguably a translation is not a reproduction but the whole question, in my view, turns on that.
Just a footnote to the comment I’ve just sent you, trying to make my point of view clearer.. The author of the translated work would be aggrieved by infringement of copyright in the translated work. That does not per se blur the line between rights in the translated work and the translation. What would blur that line would be if the translation were to be regarded as a reproduction of the translated work (which is something different from merely being a derivative work).
My last post was incomplete. Just add the words “…was infringing”.
Thank you so much for taking out the time to clarify this, Sir.
Hi,
If you are referring to cases in 1957 Act, there are hardly any case because by that time, the entire discussion, debate and controversies surrounding translations in India had reached a sort of settlement from judicial and legislative perspective. However, the history of copyright laws in the pre-independence era had lot to do with copyright in translations.
The issue of copyright in translations in India did not evolve until the interest of English publishers were hampered followed by lobbying for the protection of English works and their translations. Both the Imperial Act of 1842 and the 1847 Act were silent on the copyright protection for translations. In fact, the early English decisions based on the Statute of Anne, 1710 in Burnett v Chetwood and Millar v Taylor held that the statutory “right to print” a book does not confer a “right to translate” a book or to print a translation of the book. Subsequent to Berne Convention in 1886 , the International Copyright Act, 1886 provided for translation right for a period of ten years on works first produced in foreign countries specified by Order in Council. The Act applied to every British possession, as if it were part of the United Kingdom. But it was not clear whether this Act applied to translation of works of authors in India or translation of English works in India until the decision in the case of Munshi Sheikh Abdur Rahman v Mahomed Shirazi (ILR 14 Bom 586 (1890)). The decision in a way clarified that the applicable law for works published in India was the 1847 Act. The Plaintiff published a book in Urdu called “Moontakhebate Bakiri” (selections by Bakiri) consisting of receipts for chemicals, metals, dyes for the purpose of art and manufacturers being a revised edition of the book published by him in 1885 which was later in 1887 registered in the name of the first plaintiff under 1867 Act and plaintiffs claimed copyright to the same. Defendants published a book in the Persian language which was named “Moontakhebate Mahomedi” (selections by Mahomed). The book was almost an exact translation of the large parts of the plaintiff’s book. The issue before the court was whether defendant’s book, even if identical to that of Plaintiff’s, was an infringement when it was a translation into a different language. Defendant alleged that plaintiff’s book was merely a translation in Urdu of the various parts of English books and is not an original compilation in the first place.
The Court decided that under section 7 of the 1847 Act, the words used were “prints or cause to be printed” only and omission of the word “translate” appear very important considering the doubts, the Act intended to remove and there was no definition of the term “book” or “translation” either.’
Court held:
“It is apparent that translations and a copy stand on different footings; on the former the skill and time and labour of another have been employed and a book has been produced available for a different class or race of readers. There is not necessarily any competition between the two.”
Court relied upon Millar v. Taylor and Burnett v. Chetwood while holding that under English law translation has always been considered to be an original composition.
This decision pertained only to Indian authors and translation of their works. However, subsequently, in 1895, the decision in Macmillan v Shams ul-Ulama M. Zaka (ILR 19 Bom 557 (1895)) seriously undermined the interests of English copyright holder in India particularly the right to translations. The defendants translated in English, works of mathematics, of which plaintiff’s were the copyright owners under the Imperial Act of 1842 in London. The prime issue before the Court was whether the defendant’s translations into Urdu of Barnard Amith’s two works were infringement of the plaintiff’s copyright. Court opined that copyright being creation of statute, the rights of the proprietor of copyright must be derived based on construction of the statute, as the boundaries of exclusive privileges are determined by the Statute after the publication of the work, rather than ‘what benefits an author ought or ought not to derive from the creation of his brain and pen.’ Court observed that the provisions of 1842 Act did not provide for translation rights and why they should not be mentioned in the Act if translation of copyrighted work were intended to be prohibited by the statute. Taking a cue from the International Copyright Act of 1844, according to the Court, ‘in the opinion of the Legislature of that time, different considerations applied to translations from those which applied to making of the copies’ which was in line with the Judicial interpretations as developed in Burnett v. Chetwood and Millar v. Taylor, Court held that translation were not copies and did not infringe the copyright and decided the case from the perspective of public interest:
“It would be strained and unnatural use of language to say that translations are copies. They are different productions one is intellectual and the other mechanical and they stand on different footing from copies. They are rarely made by the author of the original work and they circulate among different class of reader, a class to which original works are completely sealed as if they had not been written. There is a conflict of interest and rights; a conflict between the intellectual interests of the persons for whom the translations are intended and the caprice or possible pecuniary interest of the proprietor of the copyright, if he shall not, or shall, intend to translate the work himself, or cause it to be translated. There is no hardship on him, he can always protect himself by being the first in the field with a translation. In the matter of copyright the Legislature has always kept the interest of the public before it. Section 5 of the 1842 act shows this and when the legislature provided for translation in the International copyright Act, it took care (Section 2) that the public should not be neglected by being left without them and translations in this Act are dealt with an entirely different manner from copies.”
But interestingly the case was also dismissed on the ground of lack of jurisdiction of Bombay High Court in the matter. This decision led to a lobbying campaign by English Publishers for a change in the copyright legislation whose interpretation by the Courts exposed the serious gap in the existing legislations where the foreign authors were protected against unauthorised translations in India under the 1886 International Copyright Act but British authors were not; however, the campaign did not yield any result.
Under the Paris Additional Act to the Berne Convention in 1896, the existence of translation right to the full period of copyright was made, provided an authorised translation occurred within 10 years. The UK 1911 Act following the Berlin conference in 1908 included the provision of translation as it is and extended it to the full term of the copyright; however, it was made clear that accession to Berlin Convention by Britain did not apply to India. Later, as British India acceded to the Berlin Convention, it did so with reservation and utilising the flexibility of section 27 of the 1911 Act, it passed the 1914 Indian Copyright Act, limiting the term of translation right to 10 years.
The Above is extract from a Paper which is WIP by myself. Also, you will find substantive materials in Prof. Bently’s seminal work on this : http://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3616&context=cklawreview.
Dear Sir,
Thank you very much for both the abstract and the link to Prof. Bently’s work. The pre-1957 era is something that I hadn’t looked into, thank you for taking out the time to explain this in such detail.