As a freelance translator do you have any rights regarding Copyright?
Before going into business we must establish a few definitions:
- In English speaking countries Copyright relates only to the economic rights
over a creation; the moral rights fall in the field of common law. In other
countries like France, Spain and Latin American countries the term “Authors
Rights” covers both economic rights and moral rights, so both terms aren’t
- The author of a translation is he who creates it, with due respect to the
rights of the author of the original text. The translator requires authorization
by the original author to translate the text. A legal entity can’t be
an author but it can buy some of the author’s rights.
- Economic rights mean that the author or his successors has the right to allow
or disallow the commercial use of his creation. Both the original author and
the translation author have these rights and further rights on any successive
creations born from their creation (i.e. translations from the translation).
- Moral rights mean that the creator shall always be mentioned as the author
of the work; he can object to modifications or deny its publication. Both the
original author and the translation author have moral rights related to their
creation, and all successive creations born from it.
- Owner of Copyright: can be the author or the person or organization that has
acquired the economic rights from the author, limited by the conditions of his
- Work-made-for-Hire (Corporate ownership/authorship): work prepared by an employee
within the scope of his or her employment. In this case Copyright ownership
belongs to the:
- employer (US; Ecuador; Argentine, Venezuela, Holland*, Japan*, Turkey*, France*)
- employer but only if certified by a written statement that the authors are
- employer in absence of any agreement in writing in contrary (UK; Can; AUS;
Guatemala, Costa Rica, Honduras, Nicaragua, Paraguay, Peru, Spain, Uruguay)
- in equal proportion between employer and employee (Mexico)
- employee in absence of a work contract (Mexico)
- employee in absence of any agreement in writing in contrary (Portugal*)
- Commissioned work (Contract for services): work done by a freelance translator.
The copyright belongs to the:
- translator, unless a written limited cession transfers rights to the commissioner
- commissioner; there is an implicit limited non-exclusive license (contract)
commissioner (UK; US; AUS; Can; Ecuador; Argentine; Cuba; Peru; Uruguay;
- commissioner; an implicit exclusive cession (Venezuela)
- commissioner; an implicit cession unless agreed otherwise (Panama; Guatemala;
El Salvador, Nicaragua, Paraguay)
- commissioner; an implicit cession if accompanied by proof of commissioned
- commissioner, if the parties agree in writing that the work shall be considered
“Work made for Hire” (US)
- commissioner, if the authors have received a payment by the commissioner (Chile).
- Non-exclusive copyright license: the author can benefit from his own use
of his creation or
grant further licenses.
- Exclusive cession: the author cannot make any use of his creation or grant
further licenses. All economic rights are transferred, all possible uses, in
all territories, and permanently.
- Limited cession: limits relate to the amount or type of uses, the territory,
the period length, etc.
- Implicit: means that the transfer of rights does not need to be expressed
in writing, and that any limitation to this transfer should be expressed in
writing if any limitation is allowed.
- Expressed: means that only those rights expressed can be transferred.
- Jurisdiction: a translator must file his complaint in that country where his
creation has been used or where his complaint is enforceable; usually where
the commissioner or employer is based. If they are both in the same country,
depending on the country, he might be able to file a complaint in his own town.
In relation to moral rights, there is a great murkiness, because although obviously
some rights must be waived (right to retract or prevent publishing) so that
the acquirer can make full use of his economic rights, in some countries the
waiver is spelled out in such a vague way that moral rights are lost completely,
or moral rights are expressly transferred to the employer/commissioner or simply
are considered his rights because he is considered the author (or creator),
including attribution and the right to prevent alterations.
After reading all the above, you probably are already concluding some main points.
Let me help you:
- You are a translator, an employee working in a company: unless you luckily
work in Mexico or Portugal, the copyright over your translations and your “moral
rights” belong to your employer. This should have a cost for the employer:
you should be getting a better salary, social security and other benefits than
if you didn’t waive your rights. In most countries there is no obligation
to stipulate these in the contract, but it is advisable. If you have some space
to negotiate, you might have your name published on your translations.
- You are a freelance translator: unless you negotiate your rights before accepting
an assignment you may lose the possibility of limiting the loss of all your
rights. With clients in many countries you don’t have the possibility
of negotiating because your rights are implicitly transferred to the client
without the possibility of bargaining. Either you accept the job or not.
If you accept a job as “Work made for Hire” for a client in the
US you are waiving all your rights, and he should treat you as an employee:
demand health insurance and social security (if you didn’t notice I’m
In a freelance translation, who is the owner of the original text, the TM and
the translated text?
- In all countries the copyright of the original text belongs to who created
it, only he can translate it or allow someone else to translate it. This protection
also covers “derivative works” like a translation or adaptation,
which also are creations.
- A direct client, an agency or a company that wishes to translate a text must
be the owner of copyright, either because he created it, he is the employer
of who created it or he bought an authorisation (license) to translate it from
- Although a client has a license to translate the original text, the creator
or author of the translation owns the copyright over his creation so he is the
first owner of that copyright; however, as the translator has signed a contract
with the client where he agrees to deliver a translation in exchange for payment,
according to the contract’s stipulations, he is delivering a second license
to use the translation by his client who owns the first license to translate.
The extent of this second license should be defined by the stipulations in the
contract, and it doesn’t grant rights to the agency but to the end client
(the agency is a mere middleman). But the laws in most countries rule that in
commissioned work it is implied that full copyright rights (and even moral rights)
are transferred from the translator to client, and in those countries where
that transfer can be limited or non-exclusive it represents an exception, that
is, it must be agreed in writing. If it is not agreed in writing the full rights
belong to the client.
- According to copyright and “Author’s rights” laws a TM doesn’t
exist. It is not mentioned anywhere related to copyright, as years ago computer
programs weren’t mentioned. Is a TM a creation? Yes it is, because although
it includes the original text, its function is to offer possible translations,
your creations. Can we extrapolate from the copyright laws any element that
might be considered an equivalent to a TM? I believe we can. With this in mind
I’ll explore the similarities between a negative (for photography) and
a TM (for translation).
The Business Process:
Assignments - Commissioned work
|- Original (Film/paper):
- selects a subject.
- tells the photographer what he wants the images to express.
- pays the photographer to use his technical means to “shoot”
the photograph when HE feels it is how the CLIENT wants it (the photographer
creates something new through composition, lighting, etc. to produce the
message the client wants).
- delivers a text.
- tells the translator who will be the readers and other instructions.
- pays the translator to use his technical means to re-write in another
language how the TRANSLATOR feels is best (the translator creates something
new, he chooses the words and gives them an arrangement with as much freedom
as he believes adequate).
||- Photographer should consider possible future re-uses of the images when
quoting as he will have to grant an exclusive or non-exclusive copyright
license to the client.
||- Translator should consider possible future re-uses of the text when
quoting as he will have to grant an exclusive or non-exclusive copyright
license to the client.
|- Negative / TM
||- photographer can make many copies (reuse).
- photographer is bound by “corporate image” and Brand issues
so many images can’t be used by the photographer without the consent
of the client (this should be taken into account when quoting on an assignment).
This means selling the copyright to the client.
|- translator can make many copies (reuse)
- translator is bound by confidentiality issues so many segments of a TM
cannot be re-used without modifications.
- If the client demands that translator destroys the TM, translator should
consider adding that fact to his quote according to the value that TM has
- If the TM is modified to eliminate any confidentiality issue the translator
doesn’t need the client’s permission to re-use the TM.
||- the client receives as many copies, or rights to use, as he has paid
||- the client receives as many copies (or reuses) as he has paid for)
|- Value of the negative or TM
||- the photographer can resell photographs that are not Company/Brand-related
unless the client has demanded exclusive rights.
||- the translator can benefit from suggested translations (fuzzies) in
future jobs and some increased efficiency. This can be useful in technical
and legal texts where many titles and contents are written in a standardized
way. It is not very useful in creative translations.
Which would be your rights as an author of a translation?
Which could be the value of your economic rights?
1) You can allow your client to use your translation or publish it (when you
accepted the job you gave him the right to use your translation after he pays
you: you waive this right against payment);
2) You can limit the uses your client makes with your translation (some translations
can have many uses and some uses might not be favourable for your reputation).
3) You can establish further fees if the client uses your translation for further
uses (some translations can have many uses and some uses can be very profitable
for a client, and for you):
- Commercial Publishing
- Digital distribution
- Advertising and promotional material
- Website (in full or in parts)
4) You can demand that your name is published as author of the translation.
5) You can allow/deny any modification done to your translation.
6) You can allow/deny the use of your translation in separate or divided parts.
7) You can allow/deny its adaption to another format (audio, video)
Should I demand my rights with all my clients?
Of course, but not all translations deserve being subject to copyright. You
should only consider negotiating your economic rights over those translations
that might produce further future profits for your client. Either you establish
it as your present fee or as a future royalty. With regard to your moral rights
(authorship and integrity), I believe you should establish them as a prerequisite
for any job that shall be distributed and/or published.
In the editorial field this practice is customary and the procedures are extensively
accepted, although errors or abuse still occur. You should consider stipulating
your rights in the event that further uses and profits may arise in the future
Maybe you won’t be able to increase your fees as you might lose a client,
but at least you can limit the use of your work (with the hope that another
use might give you extra earnings), and maybe more important, you can enforce
your “moral right” to be mentioned as author of the translation
(something that can bring you more clients).
||Which is the future revenue you might expect from further uses of your
work? Is there a market for it? Is it useful internally for your own work?
|- Type of use:
||If a text is used in an advertisement or in a newspaper it will produce
different revenues for the client. If a text will only be used internally
by a company it will rarely produce additional revenue.
|- Readership (audience)
||The amount of readers can reduce its value by limiting further readership
while increasing revenue.
|- Number of uses
||The same text or parts of it might be used for creating different products:
Annual Report, leaflet, corporate CV, brochures, website, etc., and each
one has an added promotion value.
|- Print run
||As with readership it is directly related to revenue and burning of further
||As with readership it is directly related to revenue and burning of
* This information was copied from: http://www.garridorengifo.com/bienvenidos/doc/El%20Derecho%20de%20Autor%20en%20las%20obras%20creadas%20por%20encargo%20y%20en%20el%20marco%20de%20una%20relaci%C3%B3n%20laboral.pdf
without confirmation from the sources due to language barriers.