25 September 2013


'Translations in Early Copyright Law' by Patrick Russell Goold - whose article on copyright academics in norm construction was highlighted here - notes that
 Copyright law provides authors with a right to adapt their literary and artistic works. For example, a novelist has the exclusive ability to translate his work, to make theatrical versions, or to transform it into a motion picture.
Scholars believe this right is a modern addition to the law. The dominant historical account states that early copyright gave authors no exclusivity over adaptations. Under this regime, only the production of a near verbatim copy could infringe the author’s right. Over time, however, the scope of copyright has expanded and now permits authors to control the market for various types of adaptation. The expansion of scope has caused concern for some scholars who believe copyright is rapidly becoming too broad.
This article provides a response to that dominant historical account. It focuses on one important type of adaptation: the translation of books. It asks the question: what was the legal status of unlicensed translations in early copyright law? Using archival sources it demonstrates that copyright holders maintained more control over the market for translations than we previously appreciated. Demonstrating that early copyright holders exercised some control over translations makes copyright scholars rethink the commonly held view that copyright is consistently expanding.
Goold comments that
Copyright today is often viewed as a sprawling behemoth, dictatorially governing all aspects of artistic creation. In particular, the scope of the author’s right appears to be constantly expanding, conferring on him an ever-increasing ability to control how others use and interact with his literary and artistic work. The law provides the author not only with an exclusive ability to reproduce his work verbatim,  but also allows him to stop those who wish to adapt his work into new forms. Under this right, the author of a novel, for example, would have the exclusive ability to translate his work, to shorten it, or to transform it into a film. More controversially, there are those who believe this allows the author to control all the channels through which his work reaches the public. Under this broad view, the following activities have been viewed as copyright infringements: writing a Russian language novel about a magical girl called Tanja Grotter (bearing some resemblance to J.K. Rowling’s Harry Potter); taking a seven and a half second sample of a sound recording to incorporate into the hit single, the Macarena; and creating study aids for students that reproduced small parts of copyrighted plays. The extension of copyright in this way has alarmed some7 and one US commentator has accordingly called this the “most troublesome” aspect of modern copyright.
Scholars, and society more generally, view this as a uniquely modern phenomenon. The dominant historical account states that early copyright law provided authors with no right to control adaptations of their work. Rather copyright began as a narrow privilege only to print books and its scope grew over time.  In truth, however, this issue has not received detailed historical examination. We are still unsure of how early copyright law approached the issue of adaptations. To rectify this, Professor Ronan Deazley recently examined the legal status of unlicensed abridgments under the first copyright law, the Statute of Anne.
However, the first case of adaptation that courts dealt with concerned unlicensed translations, not abridgments. This article, therefore, takes another look at the history of adaptations in copyright. It asks the question: what was the legal significance of unlicensed translations in early copyright law? Whereas prior research has suggested that early copyright provided authors with no right to control translations, this article finds the issue to be more complicated than previously appreciated. Although one famous case held that translations did not infringe the law, archival sources suggest that copyright holders maintained some control over them. Views on this issue were ultimately divided due to the special importance of translations to the Enlightenment Era’s ideal of knowledge diffusion. Translating a book opened the work up to a new market. More people could read and learn from it. Thus, allowing people to freely translate could potentially help the diffusion of new ideas throughout society. On the other hand, however, others worried about the quality of these uncoordinated translations. If the original bookseller did not control the translation process, the work may easily be mistranslated. Poor translations would, counter to the Enlightenment ideals, allow misinformation and falsehoods to spread.
Part I of this article recounts the dominant belief that translations were not viewed as copyright infringements in early copyright law. Part II questions that account. Evidence from the booksellers’ internal court, letters patent granted by the monarch, and early Chancery Court documents suggests that booksellers maintained more control over translations than previously understood. Part III then turns to the social significance of translations. This part argues the complex legal status of translations was a result of their equally complex role in knowledge diffusion. Doing so provides a partial response to a common view that copyright is constantly expanding. That translations received some protection from the law’s birth makes today’s modern adaptation right look less out of step with its historical foundations.