The Legal Environment of Translation

Guillermo Cabanellas

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317652915
• Edition: 1
• Topic: Langues et linguistique
• Subtopic: Linguistique

Translation is subject to a complex and unique set of legal rules that govern its various practical and intellectual aspects. These rules derive from very different legal areas, such as intellectual property and labour law. While useful from a strictly legal point of view, the heterogeneity of sources operates as a major hurdle in terms of understanding the overall legal framework within which translation operates.

This book offers a general overview of the legal rules applicable to different aspects of translation, allowing translators and other interested parties to form a broad and coherent picture of the rules applicable in this area. It draws on the provisions of the main legal systems of the world, as well as the basic international agreements relevant in this area, thus offering both a comparative perspective of the legal issues involved and a guide to relevant national legal rules. In addition to a description and analysis of the legal issues and rules involved, the book also presents hypothetical cases, with a discussion of the problems they pose and possible solutions. It explains the theoretical structure of the rules under discussion as well as their practical implications.

The language and methodology of the book are sufficiently accessible to allow lawyers, translators and those who require translation work but do not have a formal legal background to follow the arguments presented.

1. The Legal Framework of Translation

1.1 The practical importance of the legal framework of translation

As we noted in the Preface, most translation activity takes place without the parties involved having significant awareness of the legal framework in which they operate. This activity normally takes place according to the informal rules of the trade, regarding such matters as payment, responsibility for inaccuracies or delays and ownership of the translation. In the case of translations produced for publication, the legal framework tends to be more explicit, in the form of relatively simple contracts.

The underlying complexity of the legal relationships resulting from translations becomes evident in cases of conflict. These cases are relatively rare, in practice, but they bring forward multiple legal questions normally ignored by the parties involved in translation. For example:

– Who owns the translation in the absence of an agreement about such ownership?

– Is the translator liable for doing the translation of a work without proper authorization by the person owning the copyright in the work to be translated?

– Is the translator subject to confidentiality obligations in the absence of an express agreement to that effect?

– What payment is due to the translator in the absence of a previous agreement between the parties?

– To what use may the translation be put?

– May the person who ordered the translation revise it or change it?

The legal rules applicable to these questions have a significant impact on the long-term profitability of translation activities and on the way parties structure their contractual relationships in this field. Both the translators and the parties using their services will try to structure such relationships so as to avoid liabilities.

However, many of the legal aspects of translation refer to relationships with third parties, other than the translator and the commissioning agent. Both the translator and the person paying for the translation will normally be interested in protecting the translation from claims by third parties and from the unauthorized use of the translation. It is impossible to enter into contracts with all potential users of a translation, and the legal system has created a set of intellectual property rules which determine the rights of translators with regard to their works, even in the absence of any contractual relationship with the persons having access to translations.

A translation, once it has been produced, may be distributed and used throughout the world. Obviously, this potential worldwide distribution has significant implications for the value and effects of the translation. This raises a number of major legal questions whose answers bear on the way translation is undertaken, protected and paid for. It is necessary to determine to what extent translations are protected in the different countries of the world, even if they originate – in each case – in only one or a few of them. Also, in the case of a conflict about a given translation – e.g. about its ownership, use, payment, etc. – it must be determined which law or laws will govern such conflict, and which courts or tribunals will have jurisdiction over the case. If contracts are entered into in connection with a certain translation, questions will arise about which law governs these contracts, and to what extent they may be enforced in different jurisdictions.

1.2 A brief description of the world’s legal systems

Multiple and diverse legal systems are applicable in the world. Hence, the rights and obligations relative to a given translation may be governed by one or more of these systems.

An initial description of these systems can identify so-called international law – sometimes also referred to as public international law – and the national legal systems of each of the states in which the world is divided. International law is the result of customs created by the conduct of states and of international agreements. It basically relates to states, in the sense that it creates rights and obligations in favour of or bearing on states. International law is highly significant in the area of translation, since several international agreements, to which most of the countries of the world are bound, provide certain minimum standards for intellectual property in general and for the protection of translations in particular.

The structure of international law is different, from several perspectives, from that of national legal systems. International law is not created by a central authority – a parliament, a legislature or other similar body – but rather by agreement between two or more states, or by repeated conduct having a customary character due to its acceptance as such by the international community. Multinational bodies, such as the United Nations, have very limited powers with regard to the creation of international law.

There are no central authorities in charge of the enforcement of international law. There are no courts with the power to enforce on states the contents of international law. The international courts that do exist – such as the International Court of Justice – cannot enforce their judgments, by means of public force, in the way in which a national court can proceed to such enforcement by means of the physical force at its disposal. International courts do have certain enforcement rights, but these must take place through the states which are part of the international community, or through international mechanisms which finally rely on the enforcement means provided by national states. In addition, the international courts that do exist have jurisdiction in very specific domains, and do not have jurisdiction regarding conflicts involving international law in general. Thus, decisions on international law conflicts are to a large extent left to the whims of the individual states which are subject to the obligations created by such law, and enforcement of whatever position is taken in that respect will depend on the effective power of each state. Under these circumstances, it is arguable whether international law is law at all; it certainly works very differently than national legal systems. Its effects, however, can be very significant. In particular, in the area of intellectual property law, it is impossible to understand such law outside of the context created by international law. The contemporary national intellectual property law systems are to a large extent the consequence of international agreements; the enforcement of such agreements may be relatively weak, but they have nevertheless shaped intellectual property laws, throughout the world, in accordance with their provisions.

Each national state has its own legal system. The structure and characteristics of these systems are highly variable. Some are organized on the basis of a written constitution – e.g. the United States – some have constitutional systems not resulting from a single written text – e.g. the United Kingdom – and some do not have an explicit constitutional framework. The relative position of statutory law, religious law, customs and case law varies greatly from one country to another. Also, some countries, such as Germany and Argentina, treat international law – or elements thereof – as part of their domestic legal systems, while other states – such as the United States – require international law to be formally accepted by internal law for it to be fully enforceable under their respective legal systems.

It is possible to classify national legal systems into several groups, based on the existence of common characteristics, legal concepts and traditions (see David and Brierley 1985; Reimann and Zimmermann 2008). Thus, for example, one may distinguish between civil law systems, Anglo-American legal systems, collectivistic legal systems, Muslim tradition legal systems, Chinese legal systems, etc. There is no single classification, and in fact these categories create relatively arbitrary groupings, which can be modified depending on the use being made of the relevant classification. Civil law systems are historically based on Roman law, but the legal systems of Germany and other northern European countries include, together with Roman law elements, rules, concepts and institutions derived from their own historical development. In fact, all legal systems include elements taken from different historical and cultural backgrounds.

There are several basic elements in each legal system which are used for purposes of including such systems in one of the groups into which the world’s legal systems are normally classified. The first group of elements relates to the sources of the law, in other words what constitutes law in each legal system. Law may result from such sources as statutes, customs, court and administrative cases, regulations, generally accepted legal principles, or the opinions of legal writers or moral or religious authorities, etc. The various groups of legal systems place different emphasis on these sources. For example, civil law systems place more emphasis on statutory law, which theoretically is the basis of all these legal systems, and on the opinions of legal writers, which are frequently used by courts to “interpret” the statutory law; the Anglo-American legal system gives a broader role to case law, which is considered to be the source of many of its rules, and has developed complex technical instruments to apply, interpret and modify such case law. An example of this difference may be found in the copyright area. Civil law systems provide a detailed and exhaustive statutory list of exceptions to copyright protection, such as those applicable to political speeches or software back-up copies; American law has a broader authorization of “fair use”, whose content is determined by a constantly evolving case law.

A second group of distinguishing elements consists of the legal concepts and terminology used by each system. This is not a matter of language, but rather of ideas. Concepts such as equity, laches, corporation or perpetuity have a technical sense under Anglo-American law which has no exact equivalent in other legal systems. Reciprocally, concepts such as juridical act, juridical fact or business association have a characteristic and central meaning in civil law systems, but are non-existent or irrelevant in other systems.

A third group of characteristics used to classify legal systems is based on the historical development of each national law. Civil law systems historically have been based on Roman law and on the civil codes enacted in continental Europe as from the beginning of the nineteenth century; Anglo-American legal systems are based on English common law; legal systems from the Muslim tradition are based on Islamic law, etc.

These classifications should not be used misleadingly when determining how actual national legal systems are created and operate. Contemporary Anglo-American systems have vast and complex statutory laws, though it should be pointed out that the technique used for drafting such laws is different from that used by civil law countries. Countries of the civil law tradition make extensive use of case law, although the techniques applied to determine the contents and limits of such law are somewhat different from those used in Anglo-American systems. Case law is generally based on the stare decisis principle, i.e. the idea that courts should apply their previous holdings as to the applicable law to new cases. But this principle is applied with various degrees of flexibility in each national legal system, and enforced through different mechanisms. English law is especially strict in its respect for precedents; under American law it is possible to “distinguish” new cases from old, and even to explicitly overrule precedents; under Argentine law, a decision inconsistent with previous case law may result in a special decision by all the members of several courts of appeal, unifying the applicable rules for the future; under French law appeals are heard at special courts, with jurisdiction in cases of inconsistency with previous case law.

Most countries, in fact, have built their national laws with elements taken from different cultural spheres. For example, Argentina, which is generally considered as part of the civil law tradition, has a constitutional system based – sometimes verbatim – on U.S. law, while its private law is clearly based on continental European precedents; Israeli law has elements that date back to the use of English law prior to independence, together with aspects drawn from civil law and from religious law; Japanese law includes rules copied from continental European and U.S. sources. Sometimes, the technique of “legal transplant” is used, pursuant to which parts of an alien legal system are introduced into a national law belonging to a different cultural group. In this manner, Japan “borrowed”, during the nineteenth and twentieth centuries, laws or codes originating in Germany or the U.S., as part of a general modernization process of its legal system; Turkey “borrowed” the Swiss Code of Obligations, etc.

In addition, the division of national legal systems into “families” or cultural groupings is weakened by the increasing contemporary influence of international agreements and legal sources. For instance, the national laws of member countries of the European Union are increasingly shaped by the need to comply with the requirements set out by European Community law, such as those included in directives and regulations. In other cases, treaties with a potentially universal scope determine to a large extent the contents of national law; this is especially the case in intellectual property matters, such as copyright or patents. Although the individual countries still retain broad powers to shape their own laws, within the limits set by these treaties, these have contributed to a significant degree of homogeneity in intellectual property laws throughout the world.

1.3 Determining the applicable law

Suppose that X, a publisher operating in the United States, acquires the copyright on a book written by Y, an author living in Spain. X then contacts Z, a translator living in Mexico, to translate Y’s work into English. The different aspects of this set of facts create multiple legal issues; there will be copyright in Y’s book, copyright in the translation, a contract between X and Y, another contract between Y and Z, etc. Each of these aspects has contacts with or is located in different countries. In the case described above, copyright over Y’s book has potential effects not only in Spain and the United States, but also in other countries of the world. X, upon acquiring such copyright, will be interested in knowing the extent of the protection it is acquiring in the different countries of the world, and not only in the United States or Spain. Similarly, if X and Z enter into an agreement on the translation of Y’s work, both parties will wish to know what national contract law governs such agreement. The parties may include a choice-of-law provision, in which case they will have to determine to what extent such provision is valid and enforceable in other countries. Also, they may enter into the agreement without including a choiceof-law clause, and in that case they will be concerned with what the applicable law will be in case of a conflict related to that contract.

Since national laws give different solutions to a given case, determining what the law applicable to a case will be is an essential element to defining the rights of the parties involved in that case. This determination becomes increasingly important, in practice, due to the frequency of cases having relevant contacts with different countries.

The different national legal systems apply their own rules – called conflict of laws rules – to determine what law will be used to decide a case with international elements. There are no rules with global validity for this purpose, although some international agreements do include conflict of laws provisions with...