Critical analysis of Korean court rulings on translators’ copyrights: on the originality of translation and translators’ economic and moral rights

ABSTRACT

Copyright laws have been criticized for regarding translations as derivatives of an original text, to the disadvantage of translators. This study examines this criticism by analyzing South Korean court rulings on translation copyright disputes. The results show that the courts clearly did see translations as containing original elements, although they distinguished the creative elements comprising the originality of source texts from those of translated texts. They also ruled that a translator’s economic rights are unaffected unaffected by whether he/she has registered a translation right, or completed revisions or other procedures demanded by the author and/or the commissioner. Finally, court rulings for at least one case show that translators’ moral rights are seen as being violated when an existing translation is modified without producing new originality and under the name of a person other than the original translator. The study concludes that the infringement of translators’ copyright is attributable not to translations’ derivative status, but to a lack of standards regarding the forms of reproduction of translation and corresponding licenses. The introduction of a tiered-reproduction license for translation could curb the plagiarism of translated texts and facilitate the reuse of translations, benefiting both translators and society as a whole.

KEYWORDS:

• Adaptation
• copyright of translators
• ethics
• history of translation
• rewriting

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on the contributor

Jiyoung Park is an assistant professor at Department of Korean-English Interpretation & Translation of Seoul University of Foreign Studies (SUFS) in Republic of Korea. Her research interests include translation copyrights, translation and interpretation quality control, and translating and interpreting as a profession.

ORCID

Jiyoung Park http://orcid.org/0000-0002-0030-1407

Notes

1. The phrase, ‘Korea’, here refers to the country before separation into two Koreas. South and North Koreas were divided, as they were respectively ruled by the United States and the Soviet Union from 1945 to 1948. Both Koreas established their own governments in 1948.

2. Mazer v. Stein, 347 U.S. 201, 219 (1954).

3. The idea of a work is protected by a patent, another type of intellectual property right.

4. Among them, Yangjam Gyeongheom Chwaryo (孟祺, 暢師文, 苗好謙, 1415) was translated from Chinese into Idue transcription, which had been among the methods used to express either sound or meaning of spoken Korean words before the 1446 invention of Korean alphabet. Guhwang Chwaryo (Bureau of Relief, 1554) and Guhwang Chwaryo Byeogonbang (Anonymous, 1639) were translated from Chinese into Korean.

5. In this study, ‘the Korean courts’ or ‘Korean copyright laws’ mentioned hereafter refer to the courts and the laws of the Republic of Korea (South Korea).

6. The rulings made public do not reveal the full names of the parties to the litigation in order to protect their privacy. Therefore, the study fails to provide basic information on several examples of the literature contested in the litigations analysed, such as translators’ names, publishers, and publication years.

7. The verdicts analysed were collected from the following sources:

• Korea Copyright Commission: https://www.copyright.or.kr/main.do

• Law Times: https://www.lawtimes.co.kr/

• Supreme Court of Korea: http://glaw.scourt.go.kr/

8. The full names of the children’s book’s author and publisher were not disclosed by the court and were not available in other sources.

9. Korea’s Copyright Act protects the Right of Reproduction (Article 16); Right of Public Performance (Article 17); Right of Public Transmission (Article 18); Right of Exhibition (Article 19); Right of Distribution (Article 20); Right of Rental (Article 21); Right of Production of Derivative Works (Article 22).

10. According to the court, Ahn demanded that the Korean Literature Promotion Foundation respect his translation after reviewing a part of Crowder’s translation that he received, because he found issues with her work. To stop Crowder, who was still in the process of translating, he requested in writing the return of his translation. However, the foundation did not accept the request and proposed that Ahn choose either to publish the translation jointly with Suzanne Crowder, or to publish one version under his name and another under Crowder’s. As Ahn refused all of the proposals, the foundation published Crowder’s translation around July 1983.

11. The name of the publisher was not disclosed by the court and could not be found in other sources.

12. Moral rights protected under Korea’s Copyright Act are: Right to Make Public (Article 11); Right of Paternity (Article 12); Right of Integrity (Article 13).

13. The defendant’s name was not disclosed by the court and could not be found in other sources.