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.