INTRODUCTION
Copyright is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work[1] where there could be slight variations in the composition of the rights depending on the work. Author has the exclusive right to publish the translation and no other person has the right to translate his works unless assigned by the author.[2] As soon as the original work is translated, the person translating the book has the copyright for the work in that language because of the investment of labor as the level of originality in copyright is minimal[3]. But the issue arises as regard to the concept of ‘original work’ when a mechanical translator translates the work whereby there is no investment of labor, and thus whether it is copyrightable? Such a copyright, especially for online machine translation, has become the need of the hour for achieving the objective of information dissemination.
An automatic translation is produced machine without the involvement of human translators. It is often known as Machine Translation (MT). Nowadays among students google translator is the most notable and simple available machine translator. Individuals who need documents translated often asked whether they can utilize the computer to carry out the responsibility. As we live in a quick moving world where time is limited and where we want to be super productive in short time, commonly PC could be considered just like friend in deed.
Therefore when a computer translates an entire document automatically and afterwards a human uses it, the procedure is called machine translation. Moreover, when a human writes a translation and calling computer just for assistance in specific tasks such as looking up for specialized words and articulations, the method is called human translation.
Further, for the purpose of information dissemination while safeguarding the interest of the copyright owners a provision has been made for the issue of a compulsory license for a translation on payment of compensation if no translation is published by or on behalf of the owner of the work within seven years of the first publication of the work[4].
NEED FOR LICENSING
The owner of the work can grant any interest in his copyrighted work to some other individual through the way of licensing. It should be duly signed by the owner of the copyright work or by his approved agent. Licensing allows the copyright owners to choose rights a licensee may abuse without passing title. The copyright proprietor can allow permit for one or all exclusive rights or grant more licenses based on geographic territories or other criteria. Each license can list a variety of terms and conditions, limitations and royalty arrangements as decided upon in licensing contract. Licenses hence can create significant financial income for copyright holders.
Non voluntary licenses are essential in India for public interest. If the copyright holder denies republishing or if he denies imparting the same to the public without any sensible or reasonable ground then the complaint can be made against that owner in public interest.
In voluntary licensing, the issue which emerges is in regards to the unreasonable terms and conditions set by the proprietor of the copyright. This pulls the intervention of courts towards the compulsory and statutory licensing. For the hassle free work and for the reduction of suits in court the idea of non voluntary license has been introduced. Prior it was only compulsory licensing now it has been stretched to the statutory licensing as well[5].
COMPULSORY LICENSING IN INDIA
Compulsory license is the term generally applied to a statutorily license to do an which is covered by an exclusive right without the permission from the rightful owner. Compulsory license provisions afford the facility of using protected material in certain circumstances, as provided by statute, without seeking the prior permission of the right owner. Some of the terms (for instance those regarding rates of payment) may be fixed by the court, or a tribunal, outside the provisions of the statute. Article 9 of the Berne Paris Text provides the basis for the provisions concerning compulsory licensing. This provision provides the Convention’s exclusive basis for equitable remuneration and provides for the conditions which should be met before a member country can entirely excuse a use which includes the equitable remuneration and not prejudicing the reasonable interests of the author.
Under the Copyright Act of 1957, section 31C deals with the statutory licensing to make cover versions and rules 23 -28 of the Copyright Rules 2013 talks about the procedure which need to be followed to get the license. The recording can only be made after the expiration of the year after the publication of the copyrighted original work and for the person should need to disclose his intention to produce the same in a prescribed manner, copies are supposed to be provided and the royalty which is fixed by the copyright board need to be paid in advance and the royalty for the minimum of 50,000 copies are need to be pay during each calendar year.[6]
Section 31D[7] provides for statutory licensing with regard to the broadcasting of the literary, musical work and sound recording and Copyright Rules 2013 (rules 29-31) has been disclosed the procedure by which one can get the statutory license.
If any institution or organization wants to broadcast a work which might include sound recording can do the same but for that they are required to give the prior notice to the owner and need to pay royalty in advance which is fixed according to the copyright board. The announcement of the performers or authors name shall be done during the broadcasting. Records and book of account need to be maintained and shall be presented to the owner when required.
COPYRIGHTABILITY OF MECHANICAL TRANSLATION
An original literary work is the product of the human mind which may consist of a series of verbal or numerical statements, not necessarily possessing aesthetic merit, capable of being expressed in writing, and which has been arrived at by the exercise of substantial independent skill, creative labor, or judgment[8]. However, it could be defined in precise terms what would be exact amount of knowledge, labor, judgment or literary skill or taste which the author of any book or other compilation must bestow upon his composition in order to acquire a copyright[9]. Thus, a work may be ‘original’ if the author has applied his skill or labor, even though he has drawn on knowledge common to himself and others or has used already existing material[10]. A mere copyist does not obtain copyright is his copy. Thus, the term ‘original’ in reference to a work means that the particular work ‘owes its origin’ to the author, and has not been copied from someone else’s work[11].
Section 2(d) of the Copyright Act, 1957 defines ‘author’ to mean in relation to any literary, dramatic, musical or artistic work which is computer generated, the person who causes the work to be created[12]. There is generally no human labor or skill involved in operating these systems. Thus, random numbers selected by a computer were held to be protected by copyright in the name of who made the arrangements for the numbers to be created[13]. But what if a mechanical translator translates a literary work from one language to another? Whether the translated work can be said to be the original work of the person making the arrangements for the same to be created in such circumstances?
Permission has to be taken from the original author in order to translate his work from one language to another. As soon as the original work of the author is translated, the person translating that work has the copyright in that work[14]. Translator gets the copyright because of investment of labour and application of mind as the originality level in copyright is minimal. But if the person translates the original author work by his permission through machine, whether he will be able to get copyright on that translated work is the point of contention which is still unresolved under the law.
“For a translation to be protected as an original work it must not be constituted as a verbatim translation of the source works lock, stock and barrel.”[15] Thus a significant amount of creative effort is required to be made by the translator in order to make his work qualified for copyright protection and just a copying word by word isn’t enough[16]. Thus, the machine translation results would most likely not fall under the protection of copyright in light of the fact that no creative effort has been applied and there is no application of mind. It is highly improbable that any judge on the planet would recognize that copy pasting any content in the translation software is creative[17].
The copyright implications of Machine Translation have neither been addressed by a Federal Court in United States nor in India[18]. It is beyond question that translations constitute derivative works, which are actionable if not authorized by the copyright holder of the original work[19]. In Ketzan’s article “Rebuilding Babel: Copyright and the Future of Machine Translation Online”, the author states that if an individual X uploads an original piece of work in English and in this manner an individual Y in France translate that piece of work without the authorization in French using online software tool like Google Translator then individual Y would be liable fior direct infringement and the online software could possibly face some kind of liability fir infringement though not directly but indirectly because courts have required a “volitional act” beyond “automated copying by machine occasioned by others”. Though not directly addressing the ownership, Ketzan’s conclude that only the user would face the liability and not the software programme because it will be the user who would own the translation not the software provider.[20]
INTERNATIONAL CONVENTIONS IN RESPECT TO COMPULSORY LICENSING
India is member of two International Conventions on Copyright, to be specific, the Berne Convention for the Protection of Literary and Artistic Works and the Universal Copyright Convention (1952). The Copyright Act, 1957 fits in with the arrangements of these two Conventions. These conventions provide accommodation to certain extra offices to empower the developing nations to grant compulsory licenses for translation and propagation of works of foreign cause needed for purpose of research, scholarship, teaching or for motivation behind precise instructional exercises, if these rights couldn’t get open then certain terms and conditions need to be fulfilled and it should be made available at reasonable costs in their setting.[21]
The Copyright Act, 1957, accommodates compulsory permitting for the translation of a foreign work after the expiry of three years from the production of the work and the if the translation of the work is in a language not as a rule use in created nations, after the expiry of a time of one year from such distribution if such work is needed with the end goal of teaching, scholarship or research. [22] The Copyright Board might focus the royalties payable to the owner of the copyright under the sub-section (4) of Section 32 subsequent to looking into the proposed retail cost of a duplicate of the translation of the work; the overall models of royalties as to translation of works; and such different matters as may be viewed as applicable by the Copyright Board[23].
MECHANICAL TRANSLATION AND COMPULSORY LICENSING
Machine translation is still a long way from usable and as result it has not possessed a capacity to go under the scanner of courts. But legal academics are of the opinion that if Mechanical Translation ever evolves to be good enough, it will create massive copyright encroachments on a surprising scale. Machine Translation needs to be defended from litigation since it is socially, politically and monetarily gainful and it is supporting to achieve the goal of copyright law by protecting public interest in disseminating knowledge[24]. Online Machine Translation has the ability to transform communication by wiping out language obstructions, overcome any issues between distinctive societies, give administrations to minority language speakers, and change worldwide e-commerce by permitting even the littlest online dealer to serve the global business sector. Thus, a mechanism is required for the issuance of compulsory license for online mechanical translation whereby the original author is compensated.
Compulsory licensing is a solid procedure for dispersal of information as it adjusts the interests of copyright proprietors and customers by convincing the owner of copyright to grant licenses on solicitation, against the payment of just compensation[25].
CONCLUSION
Mechanical translation more likely has the potential to take individuals crossways that prevails between individuals from different places. Online Machine Translation has the quality to transform communication by uprooting language and social obstructions, giving administrations to minority language speakers and empowering the weakest section of online merchant to dominate the universal market in this e-commerce across the world. Thus, there needs to be a mechanism for formation of protection of online translations software through licensing and statutory clarification on non encroachment in nature. Translations are generally made because there is market accessible and in this way there is a probability of business misuse and thus permit is vital.
If machine translation is performed, would the ensuing translation be protected by copyright laws? The obvious answer is no, because no “creative effort” has been applied. No judge in the world will acknowledge that pasting a text in Google Translator or any other translation software is “creative”. It could be perhaps argued that the “creativity” is on the side of the machine translation (MT) software, but in that case it could be also argued that the copyright holder would be the MT software developer, though I doubt that this could be upheld in court.
So, along these lines since there is no creative effort involved machine translation would not fall under the copyright assurance.
Also Read – The Concept of Originality in IPR- Through the Works of Duchamp and Dali in Mona-Lisa
[1] ‘Work’ corresponds to original literary, dramatic, musical & artistic works and also cinematograph films and sound recordings.
[2] Cherian Joseph v. K. Prabhakaran Nair, (1967) Ker. 234 (India).
[3] M/s Blackwood & Sons v. A.N. Parsuraman, (1959) Mad. 410 (India).
[4] Statement of Object and Reasons of the Copyright Act, 1957.
[5] T G Agitha, International Norms for Compulsory Licensing and the Indian Copyright Law, 15(1) The Journal Of World Intellectual Property. 26-50 (2012).
[6] Ibid
[7] The Copyright Act, 1957
[8] VK Ahuja, Law Relating to Intellectual Property Rights, 1 Lexis Nexis. 25 (2007)
[9] VK Ahuja, Law Relating to Intellectual Property Rights, 1 Lexis Nexis. 26 (2007)
[10] Macmillan v. Cooper, (1916) 2 Ch. 601 (India)
[11] Rupendra Kashyap v. Jiwan Publishing House, (1996) Del. 439 (India)
[12] VK Ahuja, Law Relating to Intellectual Property Rights, 1 lexis nexis.37 (2007)
[13] Express Newspaper v. Liverpool Daily Post, (1985) 1 WLR. 1089
[14] Ajay Sahni, Lal’s Commentary on The Copyright Act, 1957, 4th edn Delhi Law House. 182 (2010)
[15] Originality concept in copyright protection, richard pasipanodya, http://www.theindependent.co.zw/2012/11/23/originality-concept-in-copyright-protection/
[16] Feist Publication Inc v. Rural Telephone Service Co, 499 U.S. 340-345 (1991)
[17] Machine Translation- No copyright on the result?,seo translator,
http://www.seo-translator.com/machine-translation-no-copyright-on-the-result/
[18] Ketzan, Erik, Rebuilding Babel: Copyright and the Future of Machine Translation Online, Tulane Journal Of Technology & Intellectual Property, Spring. (2007)
[19] Express Newspaper v. Liverpool Daily Post, (1985) 1 WLR. 1089
[20] Urantia v. Maaherra, 114 F. 3d 955-958, (9th Cir. 1976)
[21] Ajay Sahni, Lal’s Commentary on The Copyright Act, 1957, 4th edn Delhi Law House. 181 (2010)
[22] Jaman H Shah, India and the International Copyright Conventions, 8(13) Econimic And Political Weekly. 645-658 (1973).
[23] Ibid
[24] Raman Mittal, Licensing Intellectual Property: Law& Management, Satyam Law International. 203 (2011)
[25] Sergei Nirenburg, Machine Translation: Theoretical And Methodological Issues (1987).
This article is authored by Praharsh Verma, student of B.A. LL.B (Hons.) at Maharashtra National Law University Mumbai
