Online Translation - Dealing with Copyright and Plagiarism Issues Part III - Question and Answers
So now you've read the "Idiot's Guide to Online Copyright Issues" from Part I and an in-depth analysis of the laws from Part II, what's left? We took the ideas explored in Part I, and created a questionnaire, which we then sent to various website/blog authors and people from around the online scene.
The questionnaire looks as follows:
One of the first people we contacted, surprisingly, is not involved with the anime/manga community at all. However, this doesn't mean you should skip what he has to say. Allow me to introduce Jonathan Bailey from Plagiarism Today, a site "targeted at Webmasters and copyright holders regarding the issue of plagiarism online."
*We would also like to thank Jonathan Bailey for helping out with this project, providing us with valuable information related to copyright and plagiarism issues.
Jonathan Bailey of Plagiarism Today
A translation is considered a derivative work. A derivative work, of course, being a new work that is created but based upon a pre-existing one.
Copyright law makes it pretty clear that only the copyright holder has the right to create or commission derivative works. It is one of the key rights granted by copyright, along with right to display/perform and right to reproduce/distribute.
With that being said, attribution does not, by itself, change the legal situation. If a work is an infringement without attribution, it almost certainly is with one. Since the U.S. does not recognize moral rights, a set of rights that are common in European countries that guarantee, among other things, the right of the author to be identified as the creator, there is little legal difference.
Attribution might be considered when looking into the possibility of damages and it might persuade some copyright holders not to sue or take action, where they might over a plagiarized copy, it, by itself, is not a legal defense.
With that being said, let's take the three situations one at a time.
1. Without asking for permission first or giving credit
This is almost certainly an infringement if the work is not in the public domain. The translated article is an illegal derivative work and is plagiarized. I doubt anyone would look upon this favorably.
2. Gives credit but did not ask for permission
Though the attribution gives the use better ethical standing, it does not prevent the work from being an infringement. Unless permission was given, the work is likely an infringement.
However, it is worthwhile to note two exceptions in this case. First, if the translator only used a small portion of the work in some kind of commentary or criticism manner, did not damage the potential market for the work and only used what was needed, there might be a fair use argument. An example of this might be using a few quoted and translated paragraphs from the original article to make a point about the topic.
The second is Creative Commons Licensed work. This type of use is, depending on the use and the license it is placed under, in line with Creative Commons Licensing that allows derivative works. If the original work was placed under such a license, this would not be an infringement because, in truth, the original author already gave permission.
3. Got permission and gave credit
Finally, this is not an infringement because permission was obtained in advance. As long as the translator did nothing beyond what the agreement stated, he is fine.
Note: All of this is based on U.S. law, if you are in another country the rules might different.
As far as getting a preview of the article goes for commenting, I will happily do that for you. I might be in and out this evening but I should be available most of the day tomorrow and this weekend.
I hope that answers all of your answers on the subject, I know it's a long reply but there is a lot to go over. Also, you might find this page on the U.S. Copyright Office helpful.
Jonathan Bailey - http://www.plagiarismtoday.com
Next, we asked several Japanese sites the same question, below are the responses:
Tadashi Sudo - Japanese Anime News Website Anime!Anime!
This is clearly plagiarism, and a violation of copyright. We would lodge a formal protest, and, if possible, take legal action.
Q2. What if Person A was credited, but permission to post the article wasn't obtained in advance?
If it was limited to excerpts used in an original article, there would be no problem. If it went beyond that, the answer would be the same as that to Question 1. Specific examples are re-postings containing most (more than half) of an article from our site, or the reposting of our site's own opinions and examinations as-is, without including an original assertion from B's side.
I don't think there is a problem with quoting only facts and things related to them from articles.
Q3. What if Person A's permission to post was gained ahead of time, AND he or she was credited?
If it's only an excerpt, you don't need permission ahead of time. (It would be nice of you to let them know, but...) As far as reposting is concerned, though, unless there's a rational reason, I doubt they would give permission.
This turned out to be a very strict opinion overall, but selling English and Japanese articles is a facet of our site's business.
Also, there is a commensurate cost for columns and material for articles. For that reason, whether in Japanese or in a foreign language, the re-posting of articles is a serious threat to our company's business.
A popular Japanese otaku blog who prefer to remain unnamed had the following response:
A Japanese Otaku Blog
I think that giving credit is a MUST whenever you translate any articles and put them on the net. Asking for permissions, however, depends on the amount of the translation. If you translate all of a certain article, not the summary of the article, you'll need to get permission first.
In many cases, translating articles on, say, manga blogsphere in North America or in Japan, is not literal translation of the articles but not-so-long summaries. These summaries are helpful to those outside the country where the articles were first written. The summaries work as a kind of advertising here so that they could be beneficial to the people who wrote the articles. In this case, you don't have to ask for permission.
Finally, we came back to this side of the ocean and asked the same question to communities based in the U.S. Below are the replies we received...
Chris Beveridge - Owner of Anime on DVD
This question is at its heart one of the trickier aspects of the Internet and has been growing for years. It was able to slide by for a long time because of the number of people using the Internet and that it generally didn't attract a lot of attention.
I remember several years back, just after 2001 I believe, where some newspaper and magazine publishers started sending out legal complaints and filing suits against sites that copied and pasted articles wholesale into forum posts for discussion. There was an actual case about it as well if I recall but the net result was that among a lot of these political sites, it became against the rules to post articles in full. You could post snippets and relevant quotes and some places had a limit to the number of paragraphs. The idea of course was both to respect that work that was written since some would get confused about who was presenting it but also to get people to go to the "official" publisher sites where they'd have better tracking and potential revenue. That's a side issue but it generated some interesting discussion and the results have shifted to other non-political sites over the years as well.
This question is a bit trickier though since it involves different countries, different laws and a lack of accessibility among most people. It's easy enough to change the world "article" to anime or manga and have a completely different discussion.
In terms of online writing, we're seeing some of this play out in how Google handles things such as its searches but also its translation tools. Though they re-present the original site, they're still altering the work through their own program/view to achieve something that isn't the same.
As someone who writes plenty, I've had to look at it on a case by case basis. The Google translator is something where to me it leaves me work fairly intact and makes it accessible to someone else while still showing it in its original location. If a Japanese fan of a show read my review in English of said show and then translated it into Japanese and posted it somewhere on a .jp site, I wouldn't like that as much but it wouldn't have me in a fit. If they did it without proper credit then it would be more of a problem. At the same time, I've had people in the past who have lifted my site in total and made their own version of it. So, it happens and isn't pleasant but sometimes there isn't much recourse to it.
In general, if someone asks to do it, I've given permission about 99% of the time. The fact that they ask and have that basic amount of civility is what clears the way for me.
If they don't ask but give credit and I find out, I attempt to get in touch with them and ask them to ask in the future.
If they simply take what they want without asking or without credit, I try to get things credited properly. If that doesn't happen then it has to be dealt with in more direct means, which has occurred in the past.
In general, I keep going back to the newspaper/magazine article piece that came about several years ago. That tends to cover a lot of ground but doesn't apply one hundred percent to the question at hand. It does allow for some related points though that can provide a more diverse discussion.
I don't believe there should be one blanket law about how to deal with such things because as we've seen with the Internet, it's a fast moving target that's impossible to pin down one year to the next. It needs to be dealt with on a case by case basis by people, which will lead to flaws and inconsistencies. A question of translations of articles is an intriguing one but one that can carry over to other mediums in incomplete ways.
Isaac Alexander - Anime News Network
I believe it is wrong to just post a translation of the article.
2. Gives credit but did not ask for permission.
This is wrong as well, although it's moving closer to being acceptable.
3. Got permission and gave credit
Actually, this is where there needs to be more elaboration.
Here's the ideal way I believe is most ethical, not necessarily the most legal.
Person B would contact Person A, informing Person A that he plans to translate Person A's article and post a translation of the article on Person B's site. Person B in the article includes at the end of the translated article a link to the original, as well as the name of the author of the piece and the publication it was posted on. Person B can then publish the article.
If Person A responds asking them to take down the translated article, then Person B is, I believe, obligated to do so.
Simon Jones - Founder of Icarus Publishing and Icarus Blog
Option 3 is ideal, while option 2 is sufficient. It's neither realistic nor necessary most of the time to acquire permission to report/repost certain news and comments which were meant to be shared in the first place, however, it never hurts to be polite.
With that concern in mind, a manageable solution for reposting full translated articles would fall somewhere between options 2 and 3... Establish a relationship over time with key posters and websites so that they are aware their content is being reposted, without having to ask for permission for each instance.
In all other cases, exercising standard academic/journalistic courtesy should be adequate... credit properly, quote portions of the original only as necessary, and summarize liberally.
Ed Chavez - Writer, journalist and founder of MangaCast
Now coming from a blogger's perspective I am accustomed to people simply using a trackback whenever they reference, whether through a quote or by copy-paste of someone else's work. This is generally done with some restrictions though. Rarely do you see a blogger quoting an entire post or article unless it is a press release. But then again there generally is that trackback.
When dealing with translations, I have noticed a few things. Having translation experience, I can say translations in general are not standardized. The translator's own experience, personality and skill will determine a translation. And without permission to get the nuances of the original piece these translated pieces are not often reliable.
I have often seen things taken out of context on sites that do this. I do not blame the translator, as often they are not the people doing the posting in the end. However, the site may end up providing misinformation.
I know I have been corrected by doujinshi artists when I incorrectly translate their names, so I know that the Japanese writers and artists are also conscious of what some of these sites are doing as well. It hurts the relationship we have with writers, artists and fans as a whole.
2. Gives credit but did not ask for permission.
At the very least every blogger should give credit under these circumstances, the only reason being that someone else wrote the article. Plagiarism should not be tolerated in any manner.
3. Got permission and gave credit
For reasons stated above this is the ideal. Permission allows me to be confident the original writer is aware of what I will be doing with his or her works. And giving them credit will help others access the original writer's content in the future. It allows others to scrutinize the translation while knowing that the original writer is aware of the content.
I would take things a step further though. I would like to ask the original writer questions to get the context correct. Hopefully given the acknowledgment and follow-up I will have no regrets whenever someone questions what I have translated.
Rommel Salandanan - Owner of Active Anime
Most likely... everyone does number 2, personally, I've contacted Japanese sites about translating their news, but none would respond to the inquiry, so the only thing you could do is to translate summarization and credit the source.
I think that answers both 2 and 3. In fact ...I've found some online news sites that would allow you to copy the first three paragraphs, but you will have to link to the actually news for the rest of the article. There are times when someone would reply to your email, but it would be days before you receive the replies. I have ran into that ...but these are actual English News Sites, not just anime related sites (as you know, they sometimes will talk about anime and manga in general).
I tried to do that first in the beginning, but it takes them too long to respond, so eventually you just have to credit the source. As for plagiarism/copyright, if the Japanese would translate their news to English, then most would just summarize their news and link to them.
I think that in the best of all possible worlds, a person translating a piece of journalism or commentary would get the author's permission prior to posting it. I know that's not always practical, though. And from a purely selfish perspective, I really appreciate people who go to the effort of making that kind of content available in English.
And while I might be constructing a self-serving double standard, because I do love reading this stuff and find it incredibly useful, I think translating these articles is consistent with the original provider's intent, which is to inform the widest audience possible. Translators are furthering that intent, in a sense, though the holders of the copyright might not view it like that. Looking through the Fair Use guidelines from the U.S. Copyright office, activity like this often seems to fall under the category of a "summary of an address or article, with brief quotations, in a news report," though I'm not sure how the act of translating the material would enter into the equation.
Ultimately, I think it should come down to common courtesy. If possible, get the original provider's permission to post a complete translation. Failing that, and short of a concrete refusal from the provider, compose a summary of the article with brief direct quotations as Fair Use suggests, and provide a direct link to the source material. After that, be open to feedback and provide a forum for it – maybe someone will take issue with the mechanics of the translation or summary, or the original provider will come across it later and want to clarify his or her intent or even ask point blank to have the piece removed.
I don't think anyone should post something like this without crediting the original author and/or provider, though. There are lots of gray areas, but that seems like plagiarism, pure and simple. I wouldn't care if someone translated something I wrote for the web and posted it in another forum, provided they credited me and linked to the original. (I'd be very surprised, though, because who would care?)
Clear as mud?
Brigid Alverson - Writer and owner of MangaBlog
2. This is a borderline case. If you give credit, you aren't claiming someone else's work as your own, but you are still infringing on their intellectual property rights. However, re-posting articles on the web is fairly common, and it can be hard to contact someone in another country to get permission.
I would say this is not the best thing to do, but realistically, it's how the web works. If the original author were to contact me and ask that the article be taken down, I would respect that.
3. This is the best and most ethical way to handle the situation.
That's just plagiarism.
2. Gives credit but did not ask for permission.
Better, but not the best situation. I think context matters a lot in this instance. Like, if you were posting the translated article on your locked LiveJournal for friends-only, I think one has more licenses to do whatever, it's not for public view.
If the blog or LiveJournal is just a small personal site, with not many readers (say, 50 people or less, mostly friends of the blogger), then again, I don't think it really matters so long as they credited the original writer.
If the blog is part of a community of blogs, like a livejournal community, or any situation where a group of people is posting to a communal blog, it becomes much less OK. A community scenario is a more focused group of readers - it's no longer just a private random blog.
If the blog is a professional blog in any capacity - like the person who is the blogger is a journalist, or a news source, and the blogs readership is essentially public consumption, then not getting permission is faux pas.
Same goes for podcasts, which I consider a kind of soft-journalism.
In the world of pro-blogging there sees to be this intrinsic code that if you quote someone else's blog on your pro-blog, you leave a comment saying you quoted them with a link. It's a linkback. So if you translated the Japanese article for your pro-blog, you need to leave a linkback.
3. Got permission and gave credit
Then it's fine. If Person A is, say, the author of Love Hina, then Person A's publicist might have a problem, and I guess I'll see you in court?
And that's all! ... or is it? Due to deadline reasons we weren't able to contact as many people as we did, and some were not able to reply due to time issues.
If you are a journalist, writer, website/blog author and would like to have your opinion/response included, please send a message to comipress(at)gmail.com.
Credits and Special Thanks: