A French 16-year-old spent a night in jail for daring to translate Harry Potter and the Deathly Hallows from English into his native language. Fortunately, the publisher isn't pressing charges, but this story highlights an interesting wrinkle when it comes to translating copyrighted works.
Under US law, a translation is considered a “derivative work,” which authors have the exclusive right to create. For example, if someone wanted to write a sequel to Deathly Hallows, set twenty years later, they would likely be violating the derivative works right (unless the unauthorized sequel were a parody or some other form of fair use). Creating a stage play, a comic book, or a movie from Deathly Hallows would likewise be a derivative work, and the creators of these new works would have to get permission (here, accompanied by a hefty licensing fee) to create them.
The exclusive right to create derivative works, like all of the exclusive rights granted to copyright holders, exists to ensure that authors have adequate incentive to create new works. Just as authors are less likely to create if someone can copy their work wholesale, the theory is that they have less incentive to create unique plots and characters if the characters and worlds they build are co-opted by me-too hacks (This problem goes back at least as far as Cervantes, who complained about the various unauthorized adventures of Don Quixote).
While the lack of this protection certainly didn't stop Cervantes from giving us one of the great characters of literary history, the exclusive right to create derivative works does insulate artists from having their creations diluted by those merely interested in cashing in on existing popularity.
But what is the rationale for treating translations the same way?
Translation is a different situation: for an audience that does not speak or read English, Harry Potter is inaccessible–not part of the cultural world–until it is translated. Translation creates access to information and knowledge in a way that writing a sequel, or adapting a work for the stage or screen does not. The same is true of audiobook conversions for the blind. The work cannot be accessed at all until it is converted into this new format.
Yet the copyright owner retains the sole power to decide whether this conversion of knowledge can occur or not. And that original author often simply doesn't know about markets for her works in more obscure languages. J.K. Rowling is likely aware of the demand for Harry Potter in dozens of languages, but will her publishers take the time to translate the books into less widely-spoken languages like Xhosa, Ilocano, or Romansch? It seems unlikely.
And Harry Potter is a unique case, compared to other texts. For one thing, its publishers know for a fact that there will be a great deal of demand in a wide variety of languages. Contrast that with, for instance, a less popular (but more essential) book, like a medical textbook, a treatise on civil engineering, or an analysis of international laws. Such books, though more necessary, sell far, far fewer copies than the latest tale of the boy wizard. A textbook written in England or France is that much more unlikely to be translated into even more widely spoken languages like Portuguese, Croatian, or Gudjarati.
But if a bilingual speaker of one of those languages decides to translate the work so that a new audience could read it, he'd have to privately negotiate permission–a daunting task for someone already likely separated by geographic and linguistic barriers from the lawyers administering the book's copyright. And acting without permission evidently can have dire results, as some Polish movie fans discovered earlier this year.Yet these potential translators are trying to do something that will ultimately spread the knowledge contained in the book–the entire purpose of copyright in the first place. Copyright owners and their lawyers, of course, get concerned that the translated version doesn't result in compensation for the original author.
So let's compare these practical problems with the rationale for treating translations the same as other derivative works. The translated version, of course, flows from the original–the translation would not exist without it. Yet the translation isn't usually a creative alteration of the original author's creativity. In most cases, a translation is the same expression of that original author's creativity, merely reformatted for a different audience.
If we can recognize that translations have immense value; that authors of copyrighted works deserve compensation for their original creations being published and distributed, in any language; and that that value can be stifled by the complications involved in receiving authorization for each translation, maybe there's a better way.
We already have a robust mechanism for distributing songs, as covered by different performing artists–the mechanical license of section 115 makes it relatively easy for anyone to cover their favorite songs and distribute recordings of those covers without seeking express permission. This allows fans–the people who want to spread the word of the song or book–to do just that, while authors are compensated.
Authors will, of course, still be able to negotiate with translators to create “official” translations, approved by the author. In competition with unofficial versions, authorized translations could benefit from that seal of approval (and the marketing materials of the original publication), charging a premium for it. The official translator could also benefit by taking advantage of a privately negotiated royalty rate that could be less than the statutory one.
And those books that equal Potter's ability to captivate, or exceed its ability to inform, could better be spread to other corners of the literary world.