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.