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According to the Copyright Act, copyright subsists in all original work of authorship that is fixed in a tangible medium of expression.  Originality means that the work was not copied from some-one else and possesses at least a small amount of creativity.

Therefore the question arises as to whether the work of translators meets the requirements for copyright.  The Copyright Act discusses the status of translations.

A translation is basically a derivative work.  Only the copyright owner can authorize a translation that will be distributed.  This includes works that are translated into another language and distributed in parts of the world where that language is spoken.  Derivative works are infringing if they are not created with the permission of the copyright holder.  Thus, a work of fiction or a best-selling biography cannot be translated into another language and distributed without the original author’s or copyright holder’s permission.  If the author authorizes a translation, the author owns the copyright in the translation since the translation is a work for hire.   This is because in case of a work for hire, the employing party is the author.  In fact, it is not even necessary that the translator’s name be revealed in the work.

There are some translations that definitely would meet the originality requirement–for example, a new translation of an ancient Greek play or epic poem.  The underlying work is in the public domain; thus, the translator may claim copyright if s/he is working from the original or an early version.  Although it is a derivative of a public domain work, there is likely enough originality to make the translation eligible for copyright since these original works often exist only in fragments and different versions.

There is a second type of work for hire where there is no formal employment situation but when the translation nevertheless may be considered a work for hire.  Section 101 of the Copyright Act lists nine types of works which may be specially ordered or commissioned for use as a contribution to collective works.  These are considered as work for hire and translations are included in this list described by the statute.  However in such cases, the parties must agree in writing that the work will be a work for hire and in such cases, the employer is considered the author and s/he owns the copyright in the work.   Thus, there are three requirements to make the non-employment situation work a work for hire:

1. The work must be specially ordered or commissioned.

2. The work must fall into one of the nine listed categories.

3. There must be a writing specifying that the work is a work for hire.

Service of translator is also commonly availed by libraries, especially those in the for-profit sector, when the library engages the services of a translator or translation service to translate a scientific or technical article for use within that company.  In these cases, the article is translated and a single copy is delivered to the company.  This copy is then passed around to the researchers who need to see it.  The translator is in such cases paid for his services, but in no way can s/he claim copyright in the translations produced; the copyright is in the underlying article.

However if the company digitizes these works and make them available over the internet, the company has caused an unauthorized derivative work to be created and therefore the company will be infringing the copyright in the original article by distributing the translation.  Posting something on the internet is the equivalent of publishing the work.  Therefore posting an article without permission from the owner of the copyright in the article is infringement.  Therefore even if it is possible that the publisher would grant permission for posting the translation on the intranet, permission should be requested before undertaking such distribution.

Most translations of scientific and technical literature are works for hire in a sense, but not in the copyright sense.  In copyright law, a work for hire relates to the underlying copyrighted work.  Here, the company hires a translator, but the company has no ownership rights in the copyright of the underlying article. Thus, it is not a work for hire under the copyright law.

Inside Translation