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Reimagining Worlds and Works through Translation

Copyright began as the right to copy or reprint a protected work and, in time, it has become the right to control avenues through which a work may be financially exploited. At the micro level, this has meant that copyright has evolved from a right which does not allow author-owners of works a say in whether or by whom or how their works may be translated to a right which enables them to control, at the very least, whether a protected work can be translated at all and, if it is translated, by whom it may be translated.

Granting permission for a protected work to be translated, however, may be an act of faith. What happens once an author-owner grants such permission varies dramatically depending on the jurisdiction involved. In the UK, for example, Section 80(2) of the 1988 Copyright, Designs and Patents Act prevents authors from claiming that their moral right of integrity in respect of works they've created has been violated by translations having accorded their works derogatory treatment. In contrast to this, Indian law contains no such preclusion in Section 57 of the 1957 Indian Copyright Act, and translations which distort, mutilate, modify works so as to prejudice the honour or reputation of the authors of the works which have been translated could, assuming the requirements of the provision are otherwise satisfied, be considered to have violated the special rights which vest in those authors.

Although both these positions are diametrically opposed to each other, they reveal an aspect of contemporary understandings of copyright law which are in consonance with each other: translation results in the creation of a new work although the work arises from a precedent work. The act of translation is exegetic rather than merely mechanical, and it is possible that translations, which almost certainly view works through the lenses of cultures other than those in such they were originally written, could significantly remagine works possibly in ways that would not meet with the original authors' approval.

And, so, it comes to be that a translation is simultaneously an original work and an adaptation of a precedent work. This layered understanding finds expression in Article 2(3) of the Berne Convention which, introduced by the 1908 Berlin Revision to the treaty as Article 2(2), states that translations of literary and artistic works shall be protected as original works without prejudice to the copyright in the original works. In other words, although translations are works in their own right, they cannot, to be legitimate themselves, infringe the copyright subsisting in the works they translate.

The recognition of translations as protectable works is not new: courts in the England, the land which formulated the modern understanding of copyright in the common law world, have consistently recognised that translation is an act of authorship and not the exercise of a copyist, as the cases of Burnett v Chetwood (1720), Millar v Taylor (1769), Wyatt v Barnard (1814), Walter v Lane (1900), and Byrne v Statist Company (1914) all indicate.

The legitimacy and, in consequence, the protectability, of a specific translation has, however, been a bone of contention ever since attempts were made to formulate the first international understandings of copyright. Unsurprisingly, as is par for the course in the field of copyright, the existence and extent of the translation right has been a pitched battle first between colonial powers and colonised peoples and, later, with the fall of empires in the twentieth century, between exactly the same players in their new avatars as erstwhile colonisers and once-colonised peoples.

Colonisers were, of course, those who tended to promulgate their languages and to be exporters of what passed for good literature and reliable science in the colonial world, and they sought to control who had access to knowledge. This was done not only through copyright subsisting in original works but also through the steady internalisation of the translation right into the fold of copyright.

In 1886, Article 5 of the Berne Convention granted authors the exclusive right to translate or to allow their protected works to be translated for ten years after they had first been published. Ten years later, the Paris Additional Act modified the Article so that the translation right would vest in authors in respect of their original works for the entire term of copyright protection provided the right had been exercised in the first ten years after publication. A further decade saw the removal of the necessity of first translation within ten years of publication through the 1908 Berlin Revision. Thus, the translation right was finally absorbed into copyright. At a macro level, colonisers were accorded a free rein to determine which texts colonised peoples could access in their own languages.

Nonetheless, the Indian situation was an anomaly: Section 4 of the 1914 Indian Copyright Act derogated from the 1911 English Copyright Act to limit the full translation right in respect of works first published in British India. The translation right could be exercised only for ten years after the first publication of an original work beyond which it could not be exercised unless the work's translation had been published during the ten-year window. Then, too, an author could only enjoy a full translation right only in respect of those languages into which the work had been translated in the first ten post-publication years. However, as the Madras High Court pointed out in its 1958 decision in the case of Macmillan and Company Ltd. v The Little Flower Company, the subsistence of copyright in translations sprang independently from Section 1 of the 1911 English Copyright Act without dependence on Section 4 of the 1914 Indian Copyright Act since translations are themselves original literary works.

It would be reasonable to presume that the Indian dilution of the English translation right had less to do with the British having had a liberal approach to access to knowledge in India than it had to do with India having numerous languages, and the British not believing that they were giving up on an opportunity to monetarily benefit from copyright by not tightly controlling translations which, in practice, were often not translations from English into an Indian language but from one Indian language to another. Indeed, post-colonial India brought in a full translation right in the 1957 Indian Copyright Act; one of the issues which had been discussed before the statute was passed was the manner in which some prominent Indian authors had lived in penury despite their works being widely published in both the original and in translation. The lack of a full translation right had meant that they did not financially benefit from their works being sold in translation.

Post-colonial India addressed not just the extent of the translation right but the rationale underlying its formulation. At home, it protected authors through municipal legislation and, in the international sphere, particularly at the 1967 Stockholm Conference, it rebelled against the privileging of erstwhile colonial powers by seeking to restructure copyright law to allow knowledge initially disseminated in the languages of erstwhile colonisers to flow into once-colonised lands. Despite much resistance, India had some support too, and efforts extended in this regard ultimately resulted in the 1971 Paris Act of the Berne Convention superseding the 1967 Stockholm Act. 

The Appendix to the 1971 Paris Act permitted once-colonised countries — 'developing countries' in its words — to set up compulsory licensing regimes for themselves to facilitate the dissemination of knowledge amongst their own people in their own languages even if, subject to some restrictions, it had originally been disseminated in an erstwhile colonisers' languages. So it was that through its dealings with the translation right, the so-called developing world demonstrated that copyright could be forced to fit into a more equitable mould than the one in which it had, till then, been comfortably ensconced.