who owns translation memory

The message below was posted to an international software developer list I am on.

Some background and glossary:

Translation Memory -- a database of previous translations, used to see if sections of a new document match. If so, the sections can have the previous translation dropped in, reducing the amount of human translation needed, and adding consistency across versions.

Translations (software localization in particular) are often contracted out to 3rd parties. These vendors may in turn contract w/ smaller translation agencies or individual translators, while providing project management and some engineering expertise. The vendor may also have its own employees as translators, proofreaders, or layout specialists. Any or all of these folks may add to, refer to, or modify the TM at various points in the project.

Almost certainly, not all of the players are in the US, although the originator of the software may be.

Any comments, references to case, or explanation of doctrine and law would sure be useful.. I will report them back to the other list.

Best regards,

Barry Caplan
<bcaplan[_at_]i18n.com>

Forwarded message:
>
> I'm on a quest to find some legal precedents for "who owns
> translation memory," and came across the following, which might be of
> interest to some of you. This info is over a year old now and refers
> primarily to terminology databases rather than sentence-to-sentence
> databases, so if anyone knows of any recent legal rulings not
> reflected here, please update me. TIA, -Amy
>
> "Intellectual Property Rights and Terminology Management," by Sue
> Ellen Wright, The ATA Chronicle, January 1999
>
> "It has been argued in the translation community that the terminology
> compiled by the translators remains their property in the same way
> that photographers retain the rights to their negatives, even though
> they may sell prints to a client. The sale of negatives is subject
> to additional costs, and the same practice is widely recommended for
> translators or technical writers who compile terminologies as a
> byproduct of contracted document production." "...the right to the
> terminology compiled during a translation project clearly remains
> with the translator unless the client has contracted for that part of
> the work. Even a written contract stipulating the translation (one
> class of work according to the copyright law) as a work made for hire
> would not cover a terminology compilation (a second class of work)
> unless this item were also separately and explicitly so defined."
> Therefore, "Smart clients generate terminologies in-house and provide
> them to outside consultants with the stipulation that additions and
> modifications to the vocabulary be returned with the finished
> product."
>
> However,...
> "Confidentiality agreements can extend to any materials (notes, etc.)
> created in the fulfillment of a job assignment, a stipulation that
> would clearly cover terminology documentation as
> well." "Consequently, even if clients do not overtly make a claim to
> terminological information, compilers of terminologies often are
> contractually bound, or feel ethically obligated, to avoid
> transmitting that information to third parties, even if they retain
> control of their collections for their own use." "If [the
> translator] values that [client] relationship and wants to maintain
> it, she will be best served by viewing terminological information as
> highly sensitive, regardless of the strict letter of the law. Only
> if an adversarial relationship evolves, or if a client demands that
> she turn over terminological information against her will or without
> appropriate compensation, does it make sense to fall back on the
> strict provisions of the work for hire aspects of the law."
>
> Can Clients or Translators Copyright their Databases?
> "Although the compilation of terminological information may involve
> enough added originality to qualify the final product for copyright
> protection, the mere collection of information into a database (e.g.,
> a telephone book) is not. The reason is that current law does not
> cover effort and investment in a work if no element of originality is
> involved. In order to address this concern, particularly given the
> ease with which information can be copied on the Internet, the EU has
> implemented the so-called sui generis right that 'will be granted to
> the manufacturer of a database to ensure protection of any
> substantial investment in obtaining, verifying, or presenting the
> contents of a database, irrespective of whether the database is in
> itself innovative.' The sui generis right would provide a 15-year
> period of protection against unauthorized extraction and re-
> utilization of all or any substantial part of any database,
> regardless of whether those data involved are eligible for copyright
> protection in any other way... It may be necessary to see how case
> law shapes up [to determine the practical applications of sui
> generis]."
Received on Tue Apr 25 2000 - 21:16:41 GMT