Translation, Government, Law and Policy

Considerations for translation rights 2.0

Gaafar Sadek

As the contours of the globalized digital information society become apparent, so does the need for a reform of translation rights within the intellectual
property regime. The history of translation rights provides insights that help us
understand the underlying economic and political tensions in copyright negotiations today. The various versions of agency in translation studies, which run
parallel to recent interactive technologies, destabilize important notions in copyright law, such as authorship, originality, and the idea-expression dichotomy.
Finally, translational ethics can perhaps contribute to redirect current dialogues
on copyright and language policy towards increased interdisciplinarity and
internationalism, in part, as a result of decentralizing power.
Keywords: intellectual property, language policy, information society, digital
economy, globalization, ethics

Introduction: How laws come to be

As I write these words, there are ongoing protests as well as considerable media
attention against the Anti-Counterfeiting Trade Agreement (ACTA), especially
in Europe. This is a multinational treaty that has been in the works since 2007, and
if approved,1 the end-result would be yet another governing body whose mandate
would be to set international standards for the enforcement of intellectual property rights, in addition to the World Intellectual Property Organization (WIPO)
and the World Trade Organization (WTO).
The negotiation process thus far has been severely criticized, to the point
where the official rapporteur and European Parliaments appointed chief investigator, Kader Arif, resigned from his position and stated that he wanted to:
[] denounce in the strongest possible manner the entire process that led to
the signature of this agreement: no inclusion of civil society organisations, a
lack of transparency from the start of the negotiations, repeated postponing of
the signature of the text without an explanation being ever given, exclusion of

Translation Spaces 1 (2012), 81100. doi 10.1075/ts.1.04sad

issn 22113711/e-issn 2211-372x John Benjamins Publishing Company

82

Gaafar Sadek

the EU Parliaments demands that were expressed on several occasions in our

assembly.

As rapporteur of this text, I have faced never-before-seen manoeuvres from
the right wing of this Parliament to impose a rushed calendar before public opinion could be alerted, thus depriving the Parliament of its right to expression and
of the tools at its disposal to convey citizens legitimate demands.

Everyone knows the ACTA agreement is problematic, whether it is its impact on civil liberties, the way it makes Internet access providers liable, its consequences on generic drugs manufacturing, or how little protection it gives to our
geographical indications.

This agreement might have major consequences on citizens lives, and still,
everything is being done to prevent the European Parliament from having its say
in this matter. That is why today, as I release this report for which I was in charge,
I want to send a strong signal and alert the public opinion about this unacceptable
situation. I will not take part in this masquerade. (La Quadrature, 2012)

Justifiably, one may wonder: what is the link between these events and translation studies? This question itself reveals the unfortunate lack of collaboration
between scholars in translation studies and copyright law. The overlaps between
these two fields have been largely ignored, apart from a few notable exceptions:
Bentley (1993, 2007); Venuti (1998); Basalamah (2000, 2001, 2004, 2005, 2007,
2008, 2009); Wirtn (1998, 2004, 2009, 2011a, 2011b, and with Ryman 2009); Ost
(2008, 2009); and Gow (2007).
The ACTA agreement is primarily concerned with the enforcement of intellectual property rights in an increasingly digital world and does not concern translation in any direct manner. As for translation, it has been an issue of contention
for copyright legislation since the first international negotiations around copyright
during the nineteenth century, calling into question notions of authorship and
originality, and highlighting power relations between central and peripheral languages, colonizing and colonized states, and between producers and consumers.
The ACTA agreement is reminiscent of the many other national and international negotiations which have given us, over the past century and a half, the
current intellectual property (IP) regime, including translation rights (TR), with
which this article is concerned.2 According to Geist (2012), however, these previous negotiations were far more open than ACTA.
As one reviews the transcripts of the meetings and conferences that led to the
seminal Berne Convention for the Protection of Literary and Artistic Works3 (Berne)
for instance, one is quickly reminded of the colonial framework of the nineteenth
century, and the pivotal role of translation in that context. At that time, it was
Great Britain and especially France, the two superpowers of the day, who led the
way, with relentless fervour, for the implementation of the IP regime. Nations that
were producers and exporters of literary and artistic goods generally supported

Considerations for translation rights 2.0

these regulations, because they were financially beneficial to them, while importing nations at least the few that were present expressed much more concern
and reluctance towards these measures, because it was clear to all that they would
hinder their financial and cultural progress.

Realizing the power relations

As one can imagine, developing the worlds first multilateral copyright treaty was
a path mined with many volatile issues, but none of which would be as problematic as translation. The French wanted translation to be considered as a mere
reproduction of the original, because they were primarily producers and exporters
of art and literature and did not feel any need to resort to translation. Nations
with minor languages, because they relied more on translation for their art and
literature, pushed for a different, freer idea of translation and resisted the notion
of translation as an activity to be fully assimilated with reproduction rights belonging exclusively to the author of the original. Sweden, as one of the importing
countries, and perhaps representative in that regard of most other nations, went
so far as to present itself as a culture of translation (Wirtn 2011a) and objected
to restraining translation rights in the manner we know today, for the sake of national welfare and as a form of resistance.4
Should the author have an exclusive right over the translation of his work?
What about the translators right over his translation? And for how long should
such rights remain in effect? These were some of the questions that required answers before international copyright legislation could be passed. Authors obviously realized the benefits of having their translated works reach new markets and
readers, but also understood the possibilities of losing control over the quality of
the final product, not to mention missing out on potential financial gains from the
translated versions of their works. So although it was discussed at times as if it were
a form of piracy or counterfeiting similar to counterfeited prints, translation was
a more complex issue to resolve than printing piracy because of the benefits associated with the dissemination of ones works. It was the medium through which
works would flow from one nation to another, and WIPO (1986, 153) labelled it
la question internationale par excellence.5
As the debates progressed, it became exceedingly difficult to define the nature
of the transformation that resulted from a translation: was the translation a mere
reproduction, an entirely new work, or something in between? The arguments
centered on the importance of attributing works to their authors in the most faithful manner, as a duty not only towards authors, but also towards the general public. The issues were of such contention, however, that the French were not able to

83

84

Gaafar Sadek

see translation fully assimilated into reproduction rights until the 1908 Revision
Conference in Berlin. Ironically, it was also then that translations were granted
protection as originals in their own right. One cannot help but wonder, along with
Professor Basalamah (2007, 122), how can the original remain present within the
translation, when the change in language constitutes a major change in form, and
it is the form alone the expression which is protected under copyright?

Digitalization and 2.0

Not only does translation breathe a new life in works by rewriting, reframing,
and reinterpreting them, it also extends them towards cultural horizons that were
never within their reach (Derrida 1987). But, in this way, translation is perhaps not
so different from other types of reproductive or derivative activities.
Translation rights are part of the wider bundle of rights called copyright law,
where the most important ideas are authorship and originality.6 And it is precisely those two ideas that have been most challenged by translation since the
birth of copyright law, and, more recently, by the proliferation of user generated
content (UGC) on the Internet. Translators cannot freely contribute to UGC content because their activity is restricted by translation rights that have been granted
exclusively to the original contents rights holder. At the same time, the role of
translation for developing cultures and economies has always been recognized internationally and is even explicitly stated in the Appendix (WIPO 2012) to the
Berne Convention, entitled Special Provisions Regarding Developing Countries.
The incongruity between these two positions is quite puzzling, to say the least.
As antagonistic to our modern individualistic and romantic ideas of authorship and originality as it may seem, science, art, and culture have always progressed
by further developing the works of the past and, in the words made famous by
Newton, standing on the shoulders of giants (Turnbull 1959, 416). As Aristotle
wrote over two thousand years ago:
the instinct of imitation is implanted in man from childhood, one difference
between him and other animals being that he is the most imitative of living creatures, and through imitation learns his earliest lessons; and no less universal is the
pleasure felt in things imitated. (Aristotle 2009)

But this is perhaps even truer today, in the digital context of the 21st century,
where most cultural activities involve some form of copying, borrowing, transforming something into something else, or simply, mashing-up.7
When copyright laws were first negotiated, the only other possible author besides the author proper was the translator, whose work was eventually recognized

Considerations for translation rights 2.0

as copyrightable. That is because the very idea of translation questions the stability
of the original. But in todays world of blogs and YouTube, everyone is an author
and a producer, and, as a result, notions of originality and authorship are more
unstable, more contested than perhaps ever before in history. Mash-up activities
and all forms of user-generated content were never foreseen by those who put the
IP regime in place, at a time when access to materials depended mainly on slow
and costly printing mechanisms. It is therefore not surprising that, as technology
makes things faster and cheaper by freeing us from the shackles of the physical
realm through virtual access, the foundations of the old system start to crumble,
and their applicability to such new realities becomes questionable.
In 2006, Time Magazine selected You as the person of the year, to express
societys general understanding of what Web 2.0 means. Every individual was now
a potentially major player in a decentralized, post-Fordist world, able to produce,
create, and share content with the rest of the community a community now at
ones fingertips, literally. From this point on, any person could have a significant
publishing or intellectual property impact, because the Internet made large scale
distribution and sharing of content cheap and accessible.
When companies realized the business potential of leveraging UGC for financial gain, they made available various specialized platforms, such as MySpace,
Flickr, Amazon, and YouTube, for users to share and distribute content as they
liked. Users appreciated the ease and efficiencies of platforms which made it possible for them to both produce and consume, opening the door to potentially
countless collaborative endeavours. This has since become a social phenomenon,
leading to a number of major collaborative projects, such as Linux and Wikipedia.
Everyone was now a potential producer-consumer (prosumer), an independent
unit of production (Toffler 1980; see also Tapscott 1995; Ritzer and Jurgenson
2010).
One would think that, as a result of these technical strides, everyone would
live happily ever after. But that was not the case, because the typical industrial
producers of content who established copyright in the first place were now
in competition with users and their user-generated content. Users were threatening to transform business models and cultural practices, including copyright law.
The platforms mentioned above depend on the information content generated
by prosumers for their success. They will therefore promote and enable the free
exchange of non-exclusive information and provide the tools and space for users
to do so. In other words, their business model stands in contrast to the model of
traditional content producers (publishers, broadcasters), who have typically relied on exclusive control over content for their viability (Benkler 2006). Evidently,
copyright law is at the center of these social transformations.

85

86 Gaafar Sadek

It is, however, difficult not to argue for a reform of copyright law that would
take into account these collaborative realities, instead of hindering them. Copyright
law was originally designed to provide incentives for producing content by monopolizing information, instead of sharing it. Regardless of the validity of this line
of reasoning and its applicability to intangible, intellectual goods, it is clear that
its raison dtre is contrary to the increasingly collaborative user-generated nature
of work done in a knowledge society. Since its beginnings, the Internet has always been a source of hope and inspiration for a more open, democratic society in
which information flows unobstructed on the World Wide Web, everywhere, and
to the benefit of everyone (Elkin-Koren 1996, 2002; Litman 2004; Cohen 2005).
Or so we thought.
If we look at the publishing and broadcasting of news for example, the nature
and quality of the information provided by publishers and broadcasters usually
serves the interests of owners and advertisers and has a primary purpose of garnering the highest ratings possible. In concrete terms, the news may not be as
impartial or complete as one would hope, and marketing strategies usually aim
advertisement strategically to shape consumer choices, instead of catering to their
preferences (Baker 1997, 2007). UGC provides alternatives and breaks free from
the grip of the sole source model, moving society closer to decentralized sources
of information and cultural production.8 The absence of intermediaries would, in
turn, make the information more diverse, more authentic, and more representative of tastes and preferences, be it in politics, the arts, or anything in between
(Shirky 2008). The choice of what to translate, and when and how, has always
been controlled by the same content producers who controlled original content,
with the same self-serving intentions. By opening up the right to translate, instead
of keeping it exclusively in the hands of the originals author (or rights holders),
translators can join the UGC movement, as amateurs as well as professionals, and
help disseminate knowledge across borders.9
Society has witnessed many cultural and societal changes with the adoption
of Web 2.0 practices that have extended to all areas of life. As the past two decades
have shown, there are other business models beyond the monopolistic selling of
copies and the one-to-many model that can be successful without resorting to
exclusive control over content. But instead of seeing copyright adapt to the technological and cultural realities of our world, lobbying efforts by traditional content
and rights owners are still able to keep copyright laws moving in the opposite
direction, adding restrictions and creating barriers by always extending the scope
of copyright laws and strengthening their enforcement.10
There are different collaborative translation projects that have recently seen
the light of day, such as Le Vocabulaire Europen des Philosophies, TraduXio, TED
Open Translation Project, Project Lingua, the World Wide Lexicon, Cucumis, and

Considerations for translation rights 2.0

WikiProject Echo, but such activities will remain very restricted so long as translators must secure permission from the author of the original for any translation
they wish to make public.
For the time being, however, translators can concentrate on some of the possibilities offered by copyleft licenses. There is an increasing number of works that
are protected by some of the Creative Commons copyright licenses allowing derivatives. Translators can therefore reproduce these works, and license them with
the Share Alike option, which ensures that others can retranslate them under similar conditions. Such practices are in line with the collaborative environment of
the digital age and the information society and will highlight the obvious tensions
between our new realities and the outdated central governance mechanisms of
copyright law, which aim to concentrate power in the hands of single owners.
Copyright reforms, however, need not be seen as extreme measures. For example, a less dramatic modification could be implemented, rendering translated
works collaborations, whereby translators would be automatically granted rights
over their works as collaborators. Most importantly, they wouldnt need permission to publish their translations, so long as they were clearly presented as such.
Just as anyone is free to publish a commentary, summary, or interpretation of any
work without seeking permission, so anyone could be free to publish their own
translation of any work. If an author so wishes, he or she could further endorse
this or that translation of their work as the author-approved translation. Such
measures would help the case of translation and translators, but wouldnt result
in any destabilization of the system, and would in fact only help copyright law
extend its reach to new works.
Another possibility would be to add a use it or lose it clause to translation
rights. If the translation of a work does not appear within, say five or ten years from
the day of publication of the original, it would be considered fair use to translate it.
We live in an information society in which information is doubling very fast (every
18 months, according to the American Society of Training and Documentation;
every 5 years, according to Bill Clinton; or every 11 hours, according to IBM); a
clause like this would make sense in such a dynamic context. This is yet another
reality that ought to be reflected by legislation dealing with access to information.
But until copyright policymakers realize that current IP trends are moving in
the wrong direction, and that they are doing more harm than good by pushing
for policy that goes against normal consumer expectations, and until they start
relaxing the structure of copyright law and open it to allow for collaborative and
interactive works, we must resort to such measures as copyleft licensing if we want
to see translation participate fully in todays world. Open and collaborative translation projects are still possible, providing good opportunities to participate in the
democratizing of knowledge and the fomenting of creativity. However, at the rate

87

88

Gaafar Sadek

intellectual property rights restrictions are taking over the intellectual realm, such
possibilities may soon be rendered even more difficult to apply.
In addition to casting doubts on the notions of authorship and originality,
translation also raises issues with another important foundational element of
copyright law, often referred to as the idea-expression dichotomy. Copyright distinguishes between the idea behind a work and its expression or manifestation in
the real world. Contrarily to patents, which protect the idea or content, copyright
intends to protect the manifestation, or the form of an idea, by granting a monopoly over its commercial use to the author. That is why there are so many novels
and movies recounting the classic love tale for instance, all of them with the same
general premise and denouement. Although the main idea remains similar from
work to work, the manner in which the plot unfolds and the characters interact,
the manner in which the idea is expressed or clothed in language, differs. And in
the eyes of copyright law, that is enough to consider every new novel and movie
where characters overcome the obstacles that make their love impossible and finally live in eternal bliss, an original work. In return for the protection and monopoly granted to the author of the original work, society benefits from a constant
flow of new ideas, which, we are told, enriches its culture.
The distinction between idea and expression is not always easy to make. This
difficulty becomes apparent if we look at modern conceptual art for instance,
which has interesting overlaps with various aspects of translation. In the 2008 case
of Jacob Gautel v. Bettina Rheims, the French Cour de Cassation considered the
placement of the word PARADIS in gold over the bathroom door of the former
dormitory of a hospital for alcoholics, as a material expression of an original idea,
and therefore a copyrightable work. Bettina Rheims, a famous photographer, had
two models pose in Gautels Paradise twelve years later in her New Eve. She defended herself by stating that the former piece was only reduced to an idea and
was therefore not protected by copyright law. This argument did not convince the
French judges, who ultimately thought that Gautels aesthetic choices were a reflection of his personality, that his was a work and not a mere idea, and thus must
enjoy copyright protection.11 We may be told that an idea is not protected, but it
seems that, if it is original enough, it may be.
If that is the case, then one may wonder how translation fits into copyright.
Translation is usually understood as the changing of the form, the linguistic container, of a work, while faithfully preserving the idea or content. So, if copyright
protects the expression and not the idea, and if translation is a change of the expression, then shouldnt this change in the expression of a work be deemed sufficient to consider it an original?
Recent scholarship in translation studies, however, consistent with the linguistic turn that has swept across all the humanities, has questioned this simplistic

Considerations for translation rights 2.0 89

Figure1. Jakob Gautel, Le Paradis, ancien dortoir des alcooliques de lhpital de Ville
Evrard (source: http://www.connaissancedesarts.com).

understanding of translation as being a mere change of form. Form and content

are not so easily disentangled. The language we use serves as a grid to analyze and
express reality, and the seemingly linguistic transfer from one language to another
carries with it historical, cultural, psychological, ideological, and even cognitive
implications that necessarily modify the content, and even the receiver of that
content, be it a language, a history, a semantic network, or a society.12 Accepting
the conclusions of such scholarship would mean that a translation is not only the
modification of the expression and the preservation of the idea, but rather, the
modification of both expression and idea. And of course, this would undeniably
grant (at least some) translations the status of originals.

Globalization and policy

In the 1990s, when the Internet was so young that none of us were addicted to
it yet, the general impression was that English would always be the language of
information and communication technologies (ICT). Almost twenty years later,

90 Gaafar Sadek

although English is still the dominant language on the Internet, it has nowhere
near the absolute dominance it was once thought to have. At present English accounts for just around 27% of users, and is losing ground. It may seem counterintuitive that we are headed towards linguistic plurality, instead of moving towards
the simplicity of monolingualism.
A few years ago, most language experts would have said that their biggest concern in matters of language policy was the double-edged sword of having English
as both a lingua franca that facilitates communication through a common language and as a reflection of the U.S.s hegemonic colonization of all dimensions of
life, including the linguistic (which carries a renewed significance in an information society where language becomes yet another commodity that yields power).
But we are, after all, living in a globalized world where many of the rules and
structures from the pre-globalization era are no longer sufficient to help us understand what changes are happening in global human culture. And perhaps the
greatest change we need to understand is that in a globalized world everything
moves towards mutual interconnectedness and cross-impacts, including languages. Gone are the days of explaining language change in the simple terms of unidirectional effects. Languages now have a felt reciprocal action on one another;
languages at the center affect peripheral languages and languages at the periphery
affect central languages. In fact, some have even said that today it is impossible
to write in a language without being influenced by and aware of other languages
(Glissant 1996).
So it obvious that a nation with only one language at its disposal, such as
England for instance, will be at a disadvantage, with progressively stronger tendencies towards isolation and insularity in its general outlook as well as in the
more technical areas of research and output. In turn, this can have devastating
repercussions on the competitiveness of the country, which, given the current economic climate, is the last thing any country is willing to allow. This conclusion
has been echoed in various studies and reports, especially in Europe. In 2009, the
British Academy published a report, Language Matters, in which it explained, for
instance, the problem of insularity and marginalization in scholarship (or, in the
words of the report, to be a scholar that is world-famous only in England). Other
studies have highlighted and reached similar conclusions (Graddol 1997; 1999;
2000; 2006; 2010). Manifestly, unilingualism is seen as a problem for everyone,
and language experts are recognizing the need for a renewed look at language policies, especially given the repercussions of technology and globalization.
One of the initiatives to counter this domination of English is the intercomprehension movement, in Europe. In short, it proposes to teach Europeans (starting with the staff of the European Union), the linguistic elements common to a
family of languages. Although the intercomprehension method will not make it

Considerations for translation rights 2.0

possible to speak the other languages of the same linguistic family, it will be possible to understand them sufficiently. Intercomprehension would significantly reduce translation and interpretation costs in the European Union (which currently
has 23 official languages), foster new feelings of European identity and citizenry,
and perhaps weaken the dominance of the United States (and English) in some
areas by weakening its linguistic grip.
If even Europe, a superpower in its own right, fears for its cultural and linguistic identities, then we can see how the developing and least developed nations would be even more fearful. These nations are increasingly at the mercy
of others, not only economically and politically, but culturally and linguistically.
Intercomprehension and other linguistic resistance movements recognize the importance of actively resisting the growing domination of English by resorting to
the use of other languages and hence support the argument for the cultural role
to be played by translation.
Translation, as we have said, entails more than simply rendering a message
in another language. Citizens of America and the United Kingdom, or of Brazil
and Portugal, will not necessarily always understand each other despite speaking
the same language; while they share a common language they do not share cultural spheres. When these speakers communicate, they exchange, as a result, different cultural content from those spheres. Similarly, translation doesnt just make
linguistic changes; it also opens channels of communication to different cultural
content. A multiplicity of languages and cultures opened by translation would lead
to epistemological plurality, not only in general worldviews, but also in particular
content fields that are heavily influenced by language, such as law.
Louis-jean Calvet (2007) said that the lingua franca model eventually leads to
a cultural scientific autism, to a uniformity which leads to the impoverishment of
the language at the center, contrarily to the languages at the poles and the periphery. Only a translation policy can ensure scientific progress: guarantee the circulation of information, the sharing of conclusions, discoveries, comparisons, and
critiques from fresh eyes and different perspectives all things without which no
real human progress can take place.
But there is hope, because many have already realized the growing role translation is playing in our world, not least of which is Europe, as we have seen, and
not only economically (Dwyer 2010). For example, the European Commission
recognizes the important roles of translation for its politics, culture, and economy,
and devotes specific activities and funds to its study. Increasingly, scholars and
institutions have identified translation as the point of convergence for the social,
cultural, political, and economic threads we have been discussing here.
For Europe to become unified, we are told, the magic formula is not hidden in some common language, but rather, in multilingualism. Respecting

91

92

Gaafar Sadek

multilingualism gives every culture an opportunity for developing itself while preserving its identity and difference. Promoting a multilingual Europe is not only
essential for maintaining respect and unity in the European Union, but also for
preserving the economic prosperity of the European states. A complete language
policy would not only preserve ones language, but also promote the learning of
other languages through increased exposure. The improvement of the linguistic
skills of European citizens will make it easier to reach Europes political and economic objectives of having societies that are founded on integration and respect
of the other, while at the same ensuring the sustainability of the workforce and the
stability of European economy (Orban 2010, 4358).
Since May 2004, the area covered by the European Union has expanded by a
quarter, its population by a fifth, its GDP by 10%, while the number of languages
has soared from 11 to 23. The European Union now includes about 500 million
citizens, 27 member states, 3 different alphabets, and 23 official languages (in addition to about 60 other non-official languages). All of these differences must be seen
as factors of wealth, and not as barriers. And it seems that European politicians
and policy makers are slowly starting to realize what translation studies has been
repeating for decades, that their identity lies in being united in their difference.
And quite frankly, if it is good enough for Europe, it should be good enough for
the rest of the planet. Perhaps this puts Umberto Ecos famous words Europes
language is translation a little bit more in context.

Ethics of translation, international and interdisciplinary

As copyright law becomes more infiltrated into every aspect of our daily lives, it
should also become more interdisciplinary and therefore in need of being translated into the target languages of other disciplines, such as economics and politics. However, it really seems that the only extent to which copyright scholarship
is interdisciplinary is that scholars from other fields are all talking in parallel
about copyright from their respective standpoints. That is, copyright is still very
much discussed in silo, and not much is looked at outside of the law itself and its
discrete application to particular disciplines (Wirtn 2009).
Though case studies and corpora studies in translation scholarship are highly
valuable methodological and pedagogical tools, if we accept to see translation at a
more abstract level, as the theoretical discipline that it truly is by looking beyond
the linguistic analysis of corpora it can help us identify the important players
and factors in situations of transformation and change, and highlight power relations between these elements. Going even further, translation can be seen as a
disciplinary paradigm, a philosophical outlook that can help us establish an ethics

Considerations for translation rights 2.0

of transformation and otherness, which has always been present but implied in the
act of translating (see Basalamah 2010, 6877). When we translate these seemingly
abstract notions to international affairs, we get ethical policy-making, in which all
stakeholders are treated with respect and equivalence; when we translate them to
academic disciplines, we get true interdisciplinarity, mutual collaboration taking
place in neutral spaces in-between.
For the purposes of this article, this point can be further illustrated by applying the translation paradigm to law (Legrand 2005).13 Alan Watson (1993, 118)
claims that borrowing is the main way law develops. It is seemingly a statement
with which most would agree. But the question is not whether this is the case,
but whether it ought to be the case, and if so, in what way. Just as there cannot be
perfect identity, only some equivalence, between a poem in its original language
and in translation, so there cannot be perfect identity between a legal notion in
its original legal context, and its form once transplanted elsewhere, in a different
legal, linguistic, historical, cultural, economic, and political context.
A law (Steiner 1997, 1819) is encrusted, beyond lexical-grammatical definition, with phonetic, historical, social, idiomatic overtones and undertones. It carries with it connotations, associations, previous usages, and even graphic, pictorial
values and suggestions (the look, the shape of words). The part can never state its
own meaning, or the entire meaning, because it is an expression of a network of
moral and political assumptions that lie in its background. To a very large extent, a
rule, a policy, a law receives its significance from the context from which it stems.
If that premise is accepted, then in order for a real legal transplant to occur, the
rule must be transplanted, transported, along with the context that gives it its significance, to the other culture. Just as the same words will not generate the same
ideas in a different language and culture, different legal notions will have a different significance in another culture.
The interpretive standpoint will change from culture to culture. As we are reminded by Dan Sperber, the fact that exactly the same word gets printed or uttered again and again does not mean that exactly the same meaning (which is half
the word) spreads from mind to mind (Sperber 1996, 14). This is so because in
order to transport a single word without distortion, one would have to transport
the entire language around itIn order to transport the language, or text, without
changing its meaning, one would have to transport its audience as well (Hoffman
1991, 175, 272273).
When a translator is faced with cultural elements in the source text, the translator will adapt the work to make it understandable, accessible to the readership
of the host language. The translator will go so far as to manipulate and adapt the
target language in order to accommodate the foreign work, to highlight its otherness. Whether this is done for literary, cultural, or political reasons, there is now a

93

94 Gaafar Sadek

well-established tradition in our discipline that recognizes the merits of foreignizing translations.14 Part of the intrinsic ethics of translation is that the host agrees
to change his ways in order to welcome the guests (Legrand 2005).
There are, therefore, links to be made between the dominant presence of
one language English, currently and law. In her 2008 book International
Copyright Law and Policy, Silke von Lewinski writes that it may be worthwhile
studying whether the prevalence of the English language has had an impact on
the perception of this field of law, or given rise to a possibly enhanced influence of
copyright thinking (von Lewinski 2008, vii). It would not be difficult to make the
case that, there have only been two empires that shaped international copyright
law: the French and the American. Both highly imperialist, and both were able to
leverage the powerful symbolic value of their respective language to dominate discussion and negotiations.15 French was the language of law and diplomacy, and it
is clear that French interests were the primary concern and drive behind copyright
talks. The situation is not so different today, with English as the vehicle of expression of the concerns of the United States, which are expressed mainly through the
WTOs TRIPS (trade-related aspects of intellectual property rights).
Copyright negotiations have a lot to gain from this kind of reasoning. If copyright laws, and translation rights in particular, were more respectful of the developmental circumstances of every geo-political region; if law-making was less dependent on the violence of domestication, and the reduction of the other to the
same with all the utter disregard, arrogance, and distortions of the Belles infidles;
if the laws actually stemmed from the respective interests and situations of every
community, instead of the lobbying efforts of private companies halfway around
the world, then perhaps there wouldnt be such a need for tracking and enforcing
copyright laws, to the point where every one of our basic privacy rights is thrown
out the window to please content owners. But until those lessons are learned, we
must keep pushing for translation rights that will at least destabilize and decentralize power from the few to the many.
In the same way as literary translators accept that words do not just travel across
languages, lawyers must begin to appreciate that laws do not just travel across
legal cultures. And in the same way as literary translators accept that translation
requires modifications to the work in translation, lawyers must accept that legal
borrowing requires modifications to the law in transit [] It is therefore simplistic to approach the matter of legal borrowing as if rules were interchangeable
across space and time. (Legrand 2005)

Considerations for translation rights 2.0

Conclusion
Translation can help us understand not only the complexity of the history of copyright law, but also the main issues that copyright faced from its beginnings and is
still facing today, especially in a digital and globalized society.
For digital realities, translation has always questioned the stability of works by
casting doubts on the foundational notions of copyright, namely authorship, originality, and even fixation. But beyond those internal, technical questions, translation reminds us of the very important and ever-present power relations that dictate all legal negotiations, especially in a context of globalized societies.
The new capital, the new power of the knowledge society, is information.
Whoever controls information and its flows also holds the power, be it financial,
cultural, or economic. Translators can control the flow of that information in the
world. But that power comes with a responsibility to disseminate knowledge, to
bridge the gap between the haves and have-nots, which starts with an awareness
of the agency of translation, and its pivotal roles in making or breaking societies.
Therefore, translation implies an underlying ethical discourse, an implied ethics
of the other, of interpreting the other, without reducing the other to the same,
because it is impossible.
While conventions, norms, and laws suffer the homogenizing effects of globalization, and at a time of instantaneous, global and multimedia information, the
far-reaching power of the dominant discourses about means of textual productions
and the hierarchies that ensue can only reproduce a normative knowledge, reflecting the unilingual logic of economic hegemony that underlies it. When copyright
seemed to have won, however, the virtual world of the Internet gave birth to a
resistance movement which not only questions traditional norms of authorship
by encouraging sharing and free access to various creations, but also proposes an
alternative to the monopolistic globalized power of industrial and commercial entities by insisting on a user right of creation, that is, the right to translate creations
into other creations. Indeed, to be is to inherit!16 (Derrida 1993, 94).
There is an urgent need to appreciate how various legal communities think about
the law, why they think about the law as they do, why they would find it difficult to
think about the law in any other way, and how their thought differs from ours. []
lawyers can only account in a meaningful way for how the law is constructed in
a foreign legal culture through an interdisciplinary investigation. (Legrand 2005)

Bringing translation into the debate about copyright not only ensures that translation is represented as a profession and a theoretical discipline defending its rights,
but it may also uncover promising possibilities, especially through its intrinsic
ethics of alterity, be it at the disciplinary, the individual, or the international levels.

95

96 Gaafar Sadek

Notes
1. That is, if it is ratified by 6 signatories among the 22 EU countries or Australia, Canada, Japan,
Morocco, New Zealand, Singapore, South Korea, and the United States.
2. Ranging from the International Conferences of the People of Letters (18581878), to the
International Literary and Artistic Association (1878), to Berne (1884 and onward)
3. Such as the 1884, 1885, and 1886 conferences. See, for instance, Ricketson (1987, 5580,
963972)
4. As the Americans were a culture of reprinting.
5. See also Louis Renault, Rapport prsent au nom de la commission par la dlgation Franaise
Actes de la Confrence Runie Paris 1896, in La Convention de Berne, 168, in Basalamah (2009).
6. According to both the utilitarian argument of the sweat of the brow, as well as the moral
philosophy argument of considering the work an extension of the personhood of the author.
7. Digital media content containing any or all of text, graphics, audio, video and animation
drawn from pre-existing sources, to create a new derivative work (Wikipedia.org 2012).
8. Though the sources of the information are more decentralized, platforms are still controlled
by few entities. So they are decentralized only relatively.
9. There is a misconception that most of the content provided on UGC platforms is of lower quality. And though this is obviously not the case, as numerous studies have shown, the
relevance of this point to translation is perhaps to be found in the increasing automation of
the translation process. With the booming demand for translation, it is only logical to expect
providers to find efficiencies, such as resorting to automating the process. This is consistent
with translation scholarship encouraging the setting of various quality standards, representing
the various needs of translation projects. Sometimes a translation of machine quality is actually sufficient, and sometimes it isnt. Translators must concentrate their efforts or be utilized
where their work is value-added, and not where a machine can do the work (see Bowker (2009,
123155; 2011, 211236; and with Ehgoetz 2007, 209224). With regards to machine translation, most algorithms make all language pairs go through English. More work has to be done so
that this intermediation and potential interference is avoided, and translation is actually done
directly from the source to the target language (see Cassin 2007).
10. For instance, see Bill C11 in Canada and SOPA in the U.S.
11. The judges stated the following : cette oeuvre porte lempreinte de la personnalit de son
auteur ds lors quelle exprime des choix tant dans la typologie des lettres retenues que dans leur
excution manuelle la peinture dor patine et estompe que sur le choix du lieu de leur inscription, partie intgrante de luvre, mais aussi de la porte, dont la serrure est en forme de croix, et
de ltat des murs et des sols qui participent caractriser limpression esthtique globale qui se
dgage de lensemble de cette reprsentation, (Paris, 28 juin 2006, Com. com. lec. 2006, comm.
120, note C. Caron)
12. See parallels with the merger doctrine in copyright law for instance, where expression and
idea are merged.

Considerations for translation rights 2.0

13. Pierre Legrand has presented these ideas from the viewpoint of a comparatist at law.
14. E.g., Herder, Venuti, Spivak, Berman, etc.
15. Prior to 1948, the Berne Convention was only official in French, and Article 37(1)c. still declares the primacy of the French: In case of differences of opinion on the interpretation of the
various texts, the French text shall prevail.
16. tre [] cela veut dire [] hriter.

References
Aristotle. 2009. Poetics. Translated by S. H. Butcher. Accessed March 1, 2012. http://classics.mit.
edu/Aristotle/poetics.html.
Baker, C. E. 1997. Giving the audience what it wants. Ohio State Law Journal 58, 311.
Baker, C. E. 2007. Media Concentration and Democracy: Why ownership matters. New York:
Cambridge University Press.
Basalamah, Salah. 2000. Compulsory License: An instrument of development? IDEA: The
Journal of Intellectual Property Law and Technology 40, 4. Accessed February 22, 2012.
http://www.ipmall.org/hosted_resources/IDEA/40_IDEA/40-4_IDEA_503_Basalamah.
pdf.
Basalamah, Salah. 2001. The thorn of translation in the side of the law. Toward ethical copyright
and translation rights. In: The Translator. The Return to Ethics, edited by Anthony Pym,
155167. Manchester: St-Jerome.
Basalamah, Salah. 2004. Du droit lthique du traducteur. TTR 17, 2, 6788.
Basalamah, Salah. 2005. De la justesse de la traduction la justice en traduction. In:
Jurilinguistique: Bilan et perspectives, edited by J. C. Gmar and N. Kasirer, 460467.
Montral: Thmis.
Basalamah, Salah. 2007. Translation rights and the philosophy of translation: Remembering the
debts of the original. In: In Translation: Reflections, Refractions, Transformations, edited by
Paul St-Pierre and Prafulla C. Kar, 117132. Amsterdam: John Benjamins.
Basalamah, Salah. 2008. Aux sources des normes du droit de la traduction. In: Beyond Descriptive
Translation Studies: Investigations in Homage to Gideon Toury, edited by A. Pym, M.
Schlesinger, and D. Simeoni, 247264. Amsterdam: John Benjamins.
Basalamah, Salah. 2009. Le droit de traduire. Une politique culturelle pour la mondialisation.
Ottawa: Presses de lUniversit dOttawa.
Basalamah, Salah. 2010. Translational critique of the Arab postcolonial condition. In:
Globalization and Aspects of Translation, edited by S. M. Shiyab, 6877. Newcastle:
Cambridge Scholars Publishing.
Benkler, Yochai. 2006. The Wealth of Networks: How Social Production Transforms Markets and
Freedom. New Haven: Yale University Press.
Bentley, Lionel. 1993. Copyright and translations in the English speaking world. 12 Translatio:
FIT Newsletter 491, 469499.
Bentley, Lionel. 2007. Copyright, translations, and relations between Britain and India in the
nineteenth and early twentieth centuries. Chicago-Kent Law Review 82, 1181.

97

98 Gaafar Sadek
Bowker, Lynne. 2011. Off the record and on the fly. In: Corpus-based Translation Studies:
Research and Applications, edited by A. Kruger, K. Wallmach and J. Munday, 211236.
London: Continuum.
Bowker, L. 2009. Can machine translation meet the needs of official language minority communities in Canada? A recipient evaluation. In: Looking For Methodological Issues in
Translation Studies, edited by Sonia Vandepitte, 123155. Antwerpen : Artesis Hogeschool
Antwerpen.
Bowker, L. and Ehgoetz, M. 2007. Exploring user acceptance of machine translation output:
A recipient evaluation. In: Across Boundaries: International Perspectives on Translation
Studies, edited by Dorothy Kenny and Kyongjoo Ryou, 209224. Newcastle: Cambridge
Scholars Publishing.
British Academy. 2009. Language Matters. Accessed March 5, 2012. http://www.britac.ac.uk/
policy/language-matters.cfm.
Calvet, L. J. 2007. La mondialisation au filtre des traductions. Herms 49, 4557.
Cassin, Barbara. 2007. Intraduisible et mondialisation. Herms 49, 197204.
Cohen, J. E. 2005. The place of the user in copyright law. Fordham Law Review 74, 347.
Derrida, Jacques. 1987. Des tours de Babel. In: Psych ou Inventions De LAutre, 203235. Paris:
Galile.
Derrida, Jacques. 1993. Spectres de Marx. Ltat de la dette, le travail du deuil et la nouvelle
Internationale. Paris: Galile.
Dwyer, T. 2010. Traducteurs, marchs et associations professionnelles: Approches empiriques.
Herms 6, 7782.
Elkin-Koren, N. 1996. Cyberlaw and social change: A democratic approach to copyright law in
cyberspace. Cardazo Arts & Entertainment Law Journal 14, 215295.
Elkin-Koren, N. 2002. Its all about control: Rethinking copyright in the new information landscape. In: The Commodification of Information, edited by Niva Elkin-Koren and Neil W.
Netaenel, 79106. The Hague: Kluwer Law International.
Geist, Michael. 2012. Assessing ACTA: My appearance before the European parliament INTA
workshop on ACTA. Michael Geist Blog, March 1. Accessed March 15, 2012. http://www.
michaelgeist.ca/content/view/6350/125.
Glissant, Edouard. 1996. Introduction une potique du divers. Paris: Gallimard.
Gow, Francie. 2007. You must remember this: The copyright conundrum of translation memory databases. Canadian Journal of Law and Technology 6, 3, 175192.
Graddol, David. 1997. The future of English? A guide to forecasting the popularity of the English
language in the 21st century. London: British Council. Accessed March 15, 2012. http://
www.britishcouncil.org/new.
Graddol, David. 1999. The decline of the native speaker. AILA Review 13, 5768.
Graddol, David. 2000. The Future of English. London: British Council. Accessed March 15, 2012.
http://www.britishcouncil.org/learning-elt-future.pdf.
Graddol, David. 2006. English Next. London: British Council. Accessed March 15, 2012. http://
www.britishcouncil.org/learning-research-english-next.pdf.
Graddol, David. 2010. English Next India. London: British Council. Accessed March 15, 2012.
http://www.britishcouncil.org/learning-english-next-india-2010-book.htm.
Hoffman, Eva. 1991. Lost in Translation. London: Minerva.
Legrand, Pierre. 2005. Issues in the translatability of law. In: Nation, Language, and the Ethics
of Translation, edited by Sandra Bermann and Michael Wood, 3050. Princeton, NJ:
Princeton University Press.

Considerations for translation rights 2.0 99

Litman, Jessica. 2004. Sharing and stealing. Hastings Communications and Entertainment Law
Journal 27, 1, 150.
Orban, Leanard. 2010. La question des langues et de la traduction au cur des politiques de
lUnion europenne. Herms 56, 4358.
Ost, Franois. 2008. La septime cit: la traduction. In: Traduire nos responsabilits plantaires,
recomposer nos paysages juridiques, edited by Ch. Eberhard, 87110. Bruxelles: Bruylant.
Ost, Franois. 2009. Traduire. Dfense et illustration du multilinguisme. La Quadrature, January
28. Accessed March 5, 2012. https://www.laquadrature.net/wiki/ACTA_rapporteur_denounces_ACTA_mascarade.
Ricketson, Sam. 1987. The Berne Convention for the Protection of Literary and Artistic Works:
18861986. London: Centre for Commercial Law Studies.
Ritzer, George and Nathan Jurgenson. 2010. Production, consumption, prosumption: The nature of capitalism in the age of the digital prosumer. Accessed March 5, 2012. http://www.
georgeritzer.com/docs/Production%20Consumption%20Prosumption.pdf.
Shirky, C. 2008. Here Comes Everybody: The Power of Organizing Without Organization. New
York: Penguin Press.
Sperber, Dan. 1996. Learning to pay attention. The Times Literary Supplement, December 27.
Steiner, George. 1997. Errata. London: Weidenfeld and Nicolson.
Tapscott, Dan. 1995. The Digital Economy. New York: McGraw-Hill.
Toffler, Alvin. 1980. The Third Wave. New York: Morrow.
Turnbull, H. W. 1959. The correspondence of Isaac Newton. Cambridge: Cambridge University
Press.
Venuti, Lawrence. 1998. The Scandals of Translation: Towards an Ethics of Difference. London:
Routledge.
Von Lewinski, Silke. 2008. International Copyright Law and Policy. Oxford: Oxford University
Press.
Watson, Alan. 1993. Legal Transplants. An Approach to Comparative Law. Athens, GA: The
University of Georgia Press.
Wikipedia.org. 2012. Mashup (digital). Accessed March 1, 2012. http://en.wikipedia.org/wiki/
Mashup_(digital).
WIPO. 2012. Berne Convention for the Protection of Literary and Artistic Works. Accessed March
1, 2012. http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html March 2012.
WIPO. 1986. Rapport des diverses Confrences diplomatiques. In: 18861986 Centenaire de
la Convention de Berne, 153. Geneva: International Bureau of Intellectual Property. 1986.
Wirtn, Eva Hemmungs. 1998. Global Infatuation: Explorations in Transnational Publishing and
Texts. The Case of Harlequin Enterprises and Sweden. Uppsala: Uppsala University. Accessed
March 1, 2012. http://www.abm.uu.se/evahw/Global_Infatuation.pdf.
Wirtn, Eva Hemmungs. 2004. No Trespassing: Authorship, Intellectual Property Rights, and the
Boundaries of Globalization. Toronto: The University of Toronto Press. Accessed March 10,
2012. http://www.abm.uu.se/evahw/Chapter3.pdf.
Wirtn, Eva Hemmungs. 2009. Translation and copyright: The transmission of the law. MIT
6: Stone and Papyrus, Storage and Transmission. Accessed March 10, 2012. web.mit.edu/
comm-forum/mit6/papers/Wirten.pdf.
Wirtn, Eva Hemmungs. 2011a. A diplomatic salto mortale: Translation trouble in Berne,
188486. Book History 2011. Accessed March 1, 2012. http://www.abm.uu.se/evahw/
BookHistory.pdf.

100 Gaafar Sadek

Wirtn, Eva Hemmungs. 2011b. Cosmopolitan Copyright: Law and Language in the Translation
Zone. Uppsala: Uppsala University. Accessed March 1, 2012. http://www.abm.uu.se/evahw/
Cosmopolitan.pdf.
Wirtn, E. H. and Ryman, M. 2009. Mashing-up Culture: The Rise of User-Generated Content.
Uppsala: Uppsala University. Accessed March 1, 2012. http://www.abm.uu.se/evahw/
Mashing-Up.pdf.

Authors address
Arts Hall
70 Laurier Avenue East
Room 401
Ottawa ON
Canada
K1N 6N5