Translation works, which were created by transferring the intellectual artwork created in one language into another one, are preserved and considered as a work in today’s laws. This is undoubtedly due to the fact that translation works are results of intensive work and labor. Although translators are working on the basis of the original work, they are adapting the original work to another language by transferring information from their previous experiences. In this regard, it is an undeniable fact that translations should be evaluated as a separate work independently from the original work.
National and International regulations regarding translation works
Translations are protected at the national level with Law on Intellectual and Artistic Works numbered 5846 (“FSEK”). Translations are considered in “adaptation” category and regulated in FSEK art. 6/1 as “Intellectual and artistic products created by benefiting from another work but that are not independent of such work are adaptations”. In order to summarize, translations should be considered as an idea and art product that carries the labor and works of the creator, which is inspired from a work and the person conducts the work should be considered as adaptor of the work without prejudice to the rights of the owner of the original work.
Translations are protected at the international level with Berne Convention for the Protection of Literary and Artistic Works. Turkey firstly became a party to the convention on 1st January 1952 and secondly to the 1979 amended version on 07.07.1995 with the law numbered 4117. Translations are regulated under Berne Convention in a separate topic and it has been regulated in art. 2 that translations will be protected as original works without prejudice to the rights of the owner of the original work.
In this context, works/translations are also considered as works and the translators/adaptors owns all the material (processing, reproduction, propagation, etc.) and nonmaterial (presentation to the public, prohibiting the modification of the work, etc.) rights which the original creator of the work possesses. In this sense, there is no difference between the rights of the translator and original creator of the work.
Being loyal to the work and carrying the characteristics of the original creator (essential requirement)
In order to be able to create a translation work, it is essential that translation to have an original text. Because the translation, also in terms of technical meaning, is the work of translating a work in different language to another language. As such, the translator does not add, modify or extract foreign source to the work and protects the language as much as possible. Thus, "issues that appear as characteristics of the owner of the original work" will be protected. The work which is created without staying true to the characteristic of the original work cannot be considered as a translation, but it will be an imitation of that work or another separate work.
On the other hand, in order for a translation work to be considered as an independent work, the translator who created that work must leave traces on that work. It is an effort to translate the ideas in the original work with the same harmony, style and fluency in translation. Similarly, these traits can be exemplified as the translator's cult knowledge, a spelling style associated with that person, or adaptation of the foreign language to that language with much excellency.
Adaptation to be in same category with original work and relation with original work
The law accepts the adaptation in the event that the original work is brought into another framework in its category. In the case of processing of the same subject in separate work categories, any works that will arise as a result of the works, will be considered as original works since there will be no relation between two works. In this respect, since adaptation is putting work in a different category and original works in the source language will also be an artistic work, it is clear that translations also should be considered as artistic works.
Rights of translator, duration of these rights and protection
The translations / adaptations are in the absolute rights category and can claimed against everyone. This is because the translation works (adaptation) are protected as original work, without prejudice to the rights of the original creator. In fact, even the owner of the original work, has to obtain the consent of the translator before the using the translation.
In terms of protection period, the rights of the translator and the rights of the original author are in parallel. Protection period continues during life of translator and 70 years after the death of the translator.
Rights of translators are protected by civil and criminal lawsuits. Civil lawsuits can be filed at the Intellectual Property Rights Courts at the place where the defendant or translator resides. If there is no Intellectual Property Rights Court in the area of jurisdiction, competent court will be the Civil Court of First Instance. For criminal cases, prosecutors and Criminal Intellectual Property Rights Courts and Criminal Court of First Instance where the defendant or translator resides are competent
Civil and criminal lawsuits that translator may file are:
- Prevention of Infringement Suits: This lawsuit can be filed in case of an infringement on material and nonmaterial rights of translators.
- Compensation Suits: This lawsuit can be filed in case infringers earn unlawful profit from translator’s works. Nonmaterial compensation also can be claimed with these lawsuits.
- Return of Income Suits: Translator can claim return of the unlawful profit from infringer with this lawsuit.
- Determination of Authorship Suits: Translator can file this lawsuit in case there is a conflict regarding ownership of the translation works.
1. Crimes Against Material and Nonmaterial Rights (FSEK art.71): Investigation of these crimes are bound to the complaint of the defendant with complaint period of 6 months after learning the infringement. In this context in case of infringement of material and nonmaterial rights of translators, translators can file a complaint to the prosecutors in accordance with FSEK art.71.
Although there is no definition of translation work and translators under FSEK; protection can be achieved for translation works and translators in accordance with the regulations regarding adaptations and Berne Convention which also Turkey is a party. On the other hand, if a complete definition of the translation work is regulated in the law and articles regarding translation works are arranged separately from the other works, it will be able to prevent many infringements encountered in the present day and ensure that translators enforce their rights in a more comfortable and functional manner.
By Berk Aras Kula, Attorney and Kaya Kayaoglu, Attorney Sezer & Utkaner Law Firm