translation(copyright law/translation/independent creation/MV)

All Roads Lead to Rome (copyright law/translation/independent creation/MV)

Li Dongtao

Description: the second translation ≠ independent creation

The case

April is in the world again,

And all the world is filled with flowers.¹

This is a case about “AGAIN”.

The plaintiff and the defendant are translators of English. MW is a Chinese ancient novel.

The plaintiff translated MW into English and published it in 1982 for the first time in China.

The defendant also translated MW into English after reading the plaintiff’s book and licensed a different publisher to put it out in1996.

Lots of the two translations are the same or similar.

The plaintiff sued the defendant for copyright infringement.

The defendant argued that the copyright infringement was not established because there would inevitably be similarities between two translations of MW.

The court commissioned a professor teaching English to retranslate some phrases (chosen by the two parties) from the original MW into English.

This new translation was completely different from the translations of the two parties. The professor had not read the translations done by either of the two parties.

The plaintiff claimed the new translation proved the copyright infringement was established.

The defendant argued that his translation was an improvement on the plaintiff’s because he had read the plaintiff’s translation.

In contrast, there were no improvements in the professor’s translation because he hadn’t read the plaintiff’s translation.

Analysis

The copyright infringement s established. 

When different Chinese people translate the same work into English independently, their translations will inevitably be similar or even the same.

The reason of this coincidence is simple: the translation into another language must reproduce the original work faithfully into the new language.

In other words, such a coincidence couldn’t be based on the access to a previous translation.

In this case, the defendant was entitled to retranslate MW into English, but he should bring evidence to explain how the similarities between the two books had been created，for example, from independent creation, or, in the public domain? etc.

An argument of “improvements of the original translation” is useless.

In short, translating again, no flowers, but copyright infringement.

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