Today I received an email from a Romanian gentleman, asking about the translation of the lost passage by John Chrysostom from Oratio 2 adversus Judaeos, which I commissioned and then gave away recently. He wanted to make a translation into Romanian. So he asked what I paid the journal, in which Wendy Pradels published the Greek text with notes and German translation, for permission to have that English translation made. I replied that I paid them nothing; there was no money in all this, and any claim to own a text by a man dead 16 centuries might be valid in some benighted lands but hardly in the USA.
But it led me to muse on the likelihood that any academic publisher would try to sue out a claim to copyright in such a case. It would hardly be sensible, in my opinion; why sue over what has no commercial value?
While in bath, tho, my sense of humour took hold, and I took to wondering what questions one could ask in court. Copyright only vests in “original, creative works.” So…
“M’Lud, can the plaintiff tell us which specifically which words in the first line are NOT by John Chrysostom?”
“Would you give us a list of the differences between the text printed and the text composed in 400 AD by John Chrysostom? If you cannot list the portions which are an original creative work by yourselves, on what possible grounds can you claim that any of it is by you?”
“Would you tell us what the commercial value of this item was, when you purchased — as you believed — the copyright from the scholarly author? Did you pay any money at all for it?”
And so on.
I suspect, sadly, that courts are unimpressed by rhetoric unless it involves clever points of law. The layman who ventures into these waters does so at his peril, and indeed few of us ever do so unless cornered. As Auberon Waugh remarked, from bitter experience, “He who goes to court places himself in the hands of a ring of grinning rascals who will all run up costs as fast as they can until somebody has to pay.”
It’s probably easier and safer just to meet the plaintiff, shake hands with him, and then pitch him head first out of his office window, “accidental-like”. Would the fines for so doing be at all likely to reach the charges that any law firm would demand?
The serious point behind all this is that the relentless march of commercial interests taking a yard where the law granted an inch has reached the point of absurdity. Only the common sense exercised by publishers in the anglophone world is restraining them from foolishness of the sort feared by our Romanian friend; and outside that sunlit circle of generosity and mutual respect, there have been many examples of insane greed. We need to push back.
Genuine creative work should be protected by copyright, for the benefit of us all. Attempts to own the work of the ancients, by one subterfuge or another, should not exist in a civilised land.
Well, you had a translation made….I’m no expert in copyright law and of course such things are different from place to place, but I’m given to understand that a translation made from a published text is not violating copyright, esp. if said translation acknowledges the source text. But the translation becomes a copyrighted work in itself.
Well, I think of Harry Potter here as a guide to what happens. A translation of the work is a derivative work. There is copyright in the original text, and then the translator’s copyright. Both have made original creative works. This is why a translation of a modern copyright work requires permission and would involve royalties to the author.
For an ancient text, on the other hand, it seems wrong in principle to talk about author’s copyright, just because someone has done some editing and corrected a few mistakes of transmission. Only the original creative work is copyright, under any normal understanding of the law, in any reasonable jurisdiction. But when someone makes a translation of that non-copyright work, that does involve creative work, and a copyright comes into being (which in turn can be sold, licensed, traded, or in my case, released into the public domain). It would not, of course, prevent someone else from translating the same work independently.
We really need someone to take on this matter and establish some solid legal precedents that express what we all know to be reasonable here; that Chrysostom did not sell his copyright to Messrs Blogs and Blogs of Leiden (or whoever) and they do not own it. They DO own the translation they bought of it, tho.