Posted by: Steve Vitek | April 30, 2012

Is Translation Intellectual Property Or A Mere Commodity?

Information wants to be free is a well known slogan of cyber hounds and techie activists that either makes a lot of sense, or is a complete nonsense to you depending on your particular situation, such as where you live (a rich country vs. a poor country), and especially on how you make a living (as a provider of information vs. doing something else).

In the translation business, translation per se is not really treated as intellectual property by so called LSPs (Language Services Providers), formally known as translation agencies, which I prefer to call LSRs (translation resellers) because that is what they are. Translations are in fact provided by translators, not translation agencies.

The situation has become even more complicated in the translation business with the fairly recent advent of nearly ubiquitous and usually free machine translation. How can something that is being done by machines and for free possibly be intellectual property?

But translation agencies are aware that unlike translations produced by hardware and software, human translation is intellectual property. Many of them even try to put into their contracts clauses stipulating that any intellectual property created by a human translator (1) while working on an agency’s (2) project for a third party, namely a direct customer such as a law firm (3), who then bills its direct customer (4), belongs to the translation agency, which would be the second link (link 2) in the chain from the provider (translator, link 1) to the final customer (a law firm’s client, link 4). As Shakespeare might have put it, “who owns the intellectual property here, that is the question”. As I would put it, why should it be the second link? Why not link 1 or 3 or 4?

But the same translation agencies often insist at the same time that human translation is a mere commodity which does not really involve any intellectual property. How can translation be intellectual property if it is produced with software such as Trados based on reprocessing of matching old translations, or if it is already based on edited machine translation, which is something that many translation agencies hope will make a lot of money for them, provided that they can find enough willing and able human translator slaves for the editing bit, at a low, low rate, competitive with the rates prevalent in China and India, for example.

Since more and more human translators already have or are bound to switch from paper dictionaries to machine translation tools such as Google Translate, machine translation, or at least components thereof, are already in many cases an integral part of human translation, just like the legal and technical terms that used to be found mostly in paper dictionaries that used to be adored by human translators for decades.

A I mostly translate patents, intellectual property and who owns it is something that I am probably interested in more than most translators. I think that if intellectual property is created during the translation process, which I believe is the case, it is created by the translator, regardless of the tools that are being used during this process, such as paper dictionaries or machine translation.

But once this translation is sold, the translator only retains the rights to the intellectual property that is stored, hopefully safely, in his brain or on a hard drive. Once a translation agency buys a translation from me, it owns the translation and it can do with it whatever it wants. Does this ownership includes ownership of intellectual property? I don’t know, probably.

But once the agency sells my translations to its customer, does it still own the intellectual property associated with the sold translation? Probably not. The last buyer in the chain should be the logical owner of intellectual property, or possibly a co-owner with me as the translator, provided that the knowledge used to generate a translation is still safely stored in my brain or on my computer. If I can still access this knowledge, namely if my brain still works and my fingers can type, I can do with it anything I want to, and obviously I will reuse it in the next translation and the one after that too.

I don’t know who is the rightful owner of intellectual rights to my translation, that would be a question for a lawyer, although obviously I do think that it should be the translator who created the translation in the first place.

But I do know that unlike bricks and mortar, or sauerkraut and sausages, translation is a not a commodity. It is in fact an intellectual activity that will never be replicated by a machine, although machines can help during this activity by offering words that may or may not be useable in a translation, just like they they help by supplying bricks and mortar to a bricklayer, or sauerkraut and sausages to a hot dog vendor.

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Responses

  1. As usual, your thought on IP is excellent.

    “I don’t know who is the rightful owner of intellectual rights to my translation, that would be a question for a lawyer, although obviously I do think that it should be the translator who created the translation in the first place.”

    Although I don’t really care who owns the IP of my translations, I shall keep my right of reusing any bits of them, save materials that are considered confidential by law. So long as the agency pays, I don’t care what they do with my translations. They may digitally crop some bits for reuse. I won’t even bother to argue for a fee of reuse. However, they shall never ask me to sign a contract that deprives me of any rights, especially IP rights.

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    • To Wenjer Leuschel, Re: “So long as the agency pays, I don’t care what they do with my translations.”

      You don’t care, good. But suppose one day the agency stops paying you, and sends what you could have translated to me instead, because I have agreed to do it at 1/3rd of your price or even less. Would you then say again “I don’t care”?

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  2. They will probably ask you just like they ask me.

    But I will not sign a piece of paper that says that a translation agency owns what is in my head, and I am glad to hear that you won’t do that either.

    My mother told me a long time ago that nobody can steal from me what’s in my head, which is exactly what some of them are trying to do.

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  3. You know what, Mr. Vitek?

    It is great that you separate your blogging from doing business, so that people, clients or no clients, can always enjoy the thoughts, style and humor in your writings.

    I would be very sad if you became more of a realist than an excellent blogger of an admirable translator who are uncommon, entertaining and instructive.

    May your business and everyday life keep you up with topics for blogging!

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  4. Hi Wenjer:

    Thank you very much for your good wishes and same to you.

    Would you mind calling me Steve next time? I don’t like it when kids from translation agencies who are less than half my age call me Steve, but I think that we are about the same age.

    My silly posts were read 75 times this morning in Singapore and I can’t figure out why. Do you have a theory on that?

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  5. Hi, Steve, there are probably some of my followers in Singapore who got my messages about your blog and came over to view your posts. They are mostly our translation colleagues. I believe they may find your posts helpful as well.

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  6. Ha! I knew it!

    You’ve got a lot of followers in Singapore.

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  7. TRADOS and Google Translate both state in their terms and conditions that by using them, you give up your right to your copyright / confidentiality. In effect, Google (and also maybe TRADOS) now own your copyright. I think that 99% of Fortune 500 companies don’t know this, when they have a TSP do the work. It is also one reason I like MS-Word as my tool. It gives me a competitive advantage over the huge “translation mills” to say I can guarantee their copyright and confidentiality. With regard to clients, I have a term in my terms and conditions that says I own the copyright to my translation, up to the point at which they pay me in full.

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  8. That is interesting. How can Trados or Google Translate own what is in my head just because I used a piece of pretty horrible software or looked at a word suggested by machine translation?

    I think that the fact that these companies want to own your intellectual property is a strong argument for not using Trados and not improving MT offered by Google Translate.

    Remember when Google’s motto was “Don’t be evil”?

    That seems like a very long time ago now.

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  9. I’ve never knowingly signed an agency contract saying that the IP in my translations is assigned to them — I always strike out such clauses — but I have noticed agencies trying to get a discount on the basis of 100% matches etc. in “their” TM… which turns out to be populated with *my* previous translations (I also know they’ve used these TMs to give the work I was previously doing to other, cheaper translators). Now I notice that the EPO has transferred “millions of human-translated patents” to Google (http://bit.ly/EPOxl8), and rather ironically I suspect they’ve abused the IP rights of hundreds of translators by doing so. Class action anyone?

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  10. If translators do not consider translation a commodity, why do they price it as a commodity? Software designers do not bill by the character and graphic artists do not charge by the pixel. Yet even highly specialised translators seem to be stuck in the cents-per-word trap.

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  11. I personally prefer to be stuck in the “cents per word trap” because then nobody knows how much I am really making per hour.

    I doubt that my customers would be willing to pay the same amount as what they are paying now if they knew how much I make per hour.

    Another reason is that the per word rate is more fair: some translators translate 200 words and some 500 words per hour.

    This is just a simple quantifier that become the standard in the industry, that’s all.

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    • There is a third option that is quite popular among other professionals, i.e. quoting a ‘fee for service’ without mentioning rates per word or hour.

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  12. Hi,

    I totally agree with one of your point: It is in fact an intellectual activity that will never be replicated by a machine. it is interesing that you feel translation is not commodity. But we need to pay for it. Thanks for sharing and I will be back to review more.

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  13. […] http://www.youtube.com/watch?v=aVI-LBGh_xM&feature=fvwrel Information wants to be free is a well known slogan of cyber hounds and techie activists that either makes a lot of sense, or is a comp…  […]

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  14. In my view, each piece of translation is a commodity, but not mere commodity. It’s a brand-name commodity. The brand is mine, the translator’s, not the multiple agencies’ I work for as a freelancer. I’d never allow anybody to stick their brand name over mine thus turning my brain products into a mere commodity. Freelencers who will not insist on direct contact with the customer, whose order was forwarded to them by an agency, reduce their brain-name products to mere commodities. They themselves do it.

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    • I agree with you completely, Rennie!

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      • Thanks, Steve. Nice to meet you. Your blog is gaining popularity in Bulgaria, Eastern Europe, too. My respects for you. You’ve done really a lot and, hopefully, will do even more.

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  15. Thank you so much, Rennie.

    I will try my best.

    Like

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