Derivative Works Policies and Copyright

As far as I can tell, our contracts with groups who translate our content and/or put it into other new forms (such as audio recordings) stipulate that we have ownership not only of the original content, but also of that derivative content—that is, once it is created, we are free to use the translation, recording, or other such work as we see fit. In other words, if we license our content to someone in France who translates the work into French, we can ask for a copy of the French version (at no cost) and reprint it in our journal, post it online, or whatever we wish. I’ve read the policy of a couple other journals that seem to stipulate the same thing.

While a contract can say what it wants and of course if all parties sign, then the deal is done. This policy seems to my mind to run counter to US copyright law related to derivative works. As I read it, the new work (even if it is not substantially changed from the original, except that it has been translated or recorded) belongs to the creator(s) of that work. Now, as I also read the law, the creators of the new content are of course restricted in how they use this content themselves (because they have licensed the original work for a restricted purpose). But the concept that the licensor owns both the original content and the derivative work seems somehow unreasonable to me. On the other hand, I of course want to be sure our works are protected as much as possible and would be interested in following the industry standard.

I may be missing something here—it wouldn’t be the first time!—but I’d love to hear from other publishers about how they handle this and/or their opinions about it.

Lisa Dittrich
Director of Publications, ASBMR Publications
Journal of Bone and Mineral Research
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First, some definitions of "derivative work": http://www.google.com/search?hl=en&q=define%3A+derivative+work

Now, on translations...

Translations are the intellectual property of the translator, and enjoy the same copyright protection as original works. Before a translation is published, copyright ought, ideally, to be assigned, transferred, licensed, or otherwise authorized to the publisher.

Many translators and their clients perhaps don't bother with this, but it is probably a step worth considering in order to avoid copyright problems if a dispute arises later between the translator and the customer.

(As many WAME members know, copyright can only be transferred in writing; verbal agreements or "understandings" do not give the publisher the right to go ahead with publication.)

According to UNESCO's "Recommendation on the legal protection of translators and translations and the practical means to improve the status of translators" http://www.unesco.org/culture/laws/translation/html_eng/page1.shtml, translators have the moral right for their name to appear clearly in the published work so that readers can identify them. (This moral right is in addition to whatever remuneration or other compensation they receive for the translation.)

For a couple of Spanish medical journals that are translated cover-to-cover, the arrangement with the publisher is for copyright transfer to become effective upon payment of the translator's invoice. It was a simple procedure to work out once all parties became aware of the need to formalize copyright transfer.

(Unfortunately, the translators' names are still not published in either of the journals.)

Karen Shashok
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Another option that is being used by open access journals such as those published by PLoS and BioMed Central is to use a more progressive open access license that specifically allows derivative works to be created under two specific conditions:

The original authors must always be credited

The original work must always be cited

At PLoS we use the Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0/). The authors (not the publisher) own the copyright (after all, they are the creator of the work) and they grant to the public the right to reuse the work for all legal purposes (eg, readers are entitled to download, distribute, translate, create derivatives) under the two conditions specified above. We adopted this license out of a belief that the value of a scientific paper is multiplied enormously if it can be distributed worldwide, if people can translate it into local languages, and if scientists can build upon the work. The license is legally robust—in other words, in situations where creative works published under a CC license have been used illegally (eg, plagiarism, non-attribution) the courts have ruled in favor of the creator. My guess is that as the information age evolves, we are likely to see greater and greater use of progressive copyright.

Gavin Yamey Senior Editor, PLoS Medicine
Consulting Editor, PLoS Neglected Tropical Diseases