In Thailand, as in most developing and well-developed countries, there exists a robust translation industry. Companies, government bodies, and law firms, among others, need a wide variety of materials translated. Who owns copyrights in translations? The answer isn’t always clear. However, steps can be taken by private parties to assist in securing ownership of copyrights in translated materials.
Translations belong to the commissioning party. Thus, absent an agreement to the contrary, a commissioning party owns the copyright in translated materials. However, at times, translation companies place language in translation materials, or take other steps, attempting to place restrictions on use of translated materials. To ensure a commissioning party owns any copyrights that may exist in translations, it is best for a commissioning party to have translation companies sign an agreement. Such agreements should specify the commissioning party owns any and all copyrights in the translated materials and require translation companies not to attempt to limit the use rights of the commissioning party.
If the commissioning party and the translation company enter into a written agreement specifying the commissioning party owns the copyright in a translation, the commissioning party will – without doubt — own the copyright in the translation and will be free to use it in any manner (assuming there isn’t a copyright in the materials translated).
News of the day and facts having the character of mere information, which are not works in a literary, scientific or artistic domain, aren’t subject to copyright. Thus, translations of news of the day and facts can be made and used in newspapers and publications. However, where news and facts are compiled and written in a creative manner, the compilation and creative writing are protectable as copyrights. Thus, newspaper articles can’t be translated and republished unless the original writer gives permission or the translation falls within one of the fair use exceptions to the Thai Copyright Law.
In contrast to commissioned translations, Thai Copyright Laws generally favor the copyright creator in an employer/employee scenario. That is, the copyright creator (i.e., the employee) owns the rights to translated works made in the context of the employee’s employment. However, this result can be overcome by having the employee enter into an agreement with the employer whereby the employee agrees the employer will own all copyrights to translated works created. Indeed, employers should have written agreements signed by their employees, for translations as well as all other employee intellectual property creations, to ensure the employer owns all copyrights and other intellectual property created in the course of the employee’s employment.
Derivative Work Issues
If a copyright exists in an original writing, the party owning copyrights in a translation needs approval from the original copyright owner to use the translated materials in a commercial manner. In such instances, the translated materials are derivative copyright works of the underlying copyrighted materials and can only be used pursuant to the fair use provisions of the Thai Copyright Act or with the express permission of the owner of the underlying copyright.
Under Thai Copyright Law, fair use includes – but is not limited to — such uses as:
- Research or study of the work which is not for profit;
- Comment, criticism or introduction of the work with an acknowledgement of the ownership of copyright in such work;
- Reproduction, adaptation, exhibition or display by an instructor for the benefit of instruction provided that the act is not for profit;
- A reasonable recitation, quotation, copying, emulation or reference in part from a copyright work by virtue of this Act with an acknowledgement of the ownership of copyright in such work, provided it is research or study of the work which is not for profit.
Thus, in all instances, parties must carefully consider not only who owns copyrights in translations, but also whether the translated material is a derivative work subject to use restrictions.
Not Lost In Translation
In summary, while translations create challenging copyright and use issues, those commissioning translations and employers can take proactive steps to ensure they own any and all copyrights in translations and are free to use translations.
By Daniel Q. Greif © April 2011
Daniel can be reached at firstname.lastname@example.org