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Is this really a copyright problem?

Lea Shaver

Associate ProfessorLea Shaver taught at Yale Law School and Hofstra Law School before joining the IU McKinney School of Law faculty in 2012. She holds a J.D. From Yale Law School and an M.A. from the University of Chicago. Professor Shaver was a summer clerk to Hon. David F. Hamilton and a Fulbright Scholar in South Africa, where she supported litigation advancing the constitutional rights to housing, education, and water. Her research focuses on intellectual property, innovation, access, and human rights.

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7 Responses

  1. Bruce Boyden says:

    The problem is a bit more complicated than assessing the costs of the copyright system though, because one whole theory of the justification for copyright protection is that it boosts the P side by more than it boosts the costs side of your equation. So, to answer the question of whether copyright results in the net in fewer works being translated, we have to know how much it is adding to the profit side, in open market transactions where it would be needed most (i.e., not something like a government contract). I’m not sure the public domain works answer this question, because it may be the case under South African law that while the Bible itself is not copyrightable, a particular translation of it is, such that you still cannot copy it verbatim, which means that we don’t have a clear example of a no-copyright published translation success story.

    There’s an even trickier problem if it turns out to be the case that for small markets the costs outweigh whatever boost in profits copyright might be said to give, which is that we’d then need to figure out the systemic administrative costs of carve-outs to a general rule, each of which makes the rule marginally more difficult to interpret, enforce, and predict. If there’s one cost copyright law does not pay enough attention to, it seems to me it’s that latter one.

  2. Matt says:

    Thanks- this is very interesting. I wonder if it might be useful to look at translations into languages like Norwegian or Slovak, or Bulgarian, too. My understanding is that not all that many books are translated into those languages, though I may be wrong. The comparison would not be perfect, of course, but there might be something interesting to learn. (Nords are wealthy, on average, so could pay, but also, very many of them know English very well, so this might make it less profitable to translate into Norwegian even if it would otherwise be profitable.)

    I think it might also be of some interest to try to tie this sort of inquiry into the work don by Philippe van Parijs on “linguistic justice” (see his book, _Linguistic Justice for Europe and the World_, for his most developed account.) I should say that I’m pretty skeptical of van Parijs’s claims, and his basic luck-egalitarian framework, but it’s interesting stuff by a very smart guy that might be of some use.

  3. A.J. Sutter says:

    I don’t have a superagent, and my stuff hasn’t been translated into Latin or even into French so far, but your equation has ZERO to do with my practical experience with translation.Two of my books published in Japan have been translated into Korean. South Korea has a population comparable to the entire population of South Africa, and all 49 million of of its inhabitants speak Korean, as opposed to about 10 million Zulu speakers.

    1. In my preamble should have said, as far as I know two of my books have been published in Korea. I know about these because a publisher approached my Japanese publisher, and we did a deal. Unless, say, a friend sends me an email saying that she saw my book in a store, I have absolutely no way of knowing if any of the others have been published there. I also have no way of knowing if any of my books have been translated into, say, Chinese. And even though one of my publishers is the biggest in Japan, they don’t have the resources to keep an eye out for this, either.

    2. In Japan, unless you’re Murakami Haruki, or someone with an established niche following overseas (e.g.,Ogawa Yoko, who is maybe more famous in France than domestically for a series of eerie/sexy novellas), your translation rights are sold for a customary up-front fee — about US$2,500, tops (Keep in mind that Korea is actually a top market for Japanese works.) There is little or no negotiation. Since I practice IP law, I retained all translation rights to my stuff, but in practice that made no difference. As a rights owner, I had no opportunity to bang on the table, say “take it or leave it,” calculate my anticipated profits, or anything so dramatic.

    3. For this kind of average book, LAWYERS AREN’T INVOLVED — this is an ordinary-course, commercial (almost commodity) deal. For Western books, BTW, many deals are done at book fairs, and lawyers aren’t necessarily directly involved either. And in any case, if you are a typical nebbish foreign author like me, your ability to get, say, a French publishing giant to change its standard form is effectively nil.

    4. That up-front fee is likely to be the only money you’ll see, esp. if you are in a territory outside the US or Europe. I had to hassle the publisher’s Japan-based agent just to get my up-front fees paid on time — and I was lucky this publisher had an agent in Tokyo at all! When it came time for annual royalties, the agent had vanished into thin air, and the publisher ignored my emails. BTW, the publisher also made some unauthorized editorial changes (this is not uncommon here in Asia). But even though Korea is a relatively developed country and only 2 hours away by plane, do you think I can take the company to court there, even assuming I know whom to serve with a complaint? For what’s maybe about a couple hundred bucks US in royalties, at most?

    5. A real bottleneck that has nothing to do with copyright law is the availability of competent translators, especially for literature. You usually need a translator who is native in the target language (though there are some famous exceptions, e.g. “Boris Akunin,” a successful genre novelist himself who translates from Russian into Japanese — albeit public domain stuff like Dostoevsky). In Japan, scholarly books, philosophy, etc., are often translated by academics. But the number of novels translated from languages other than English is comparatively small. And even though Japanese lit has some popularity in France — esp. manga, horror, and le sexy — most of the work is done by a small number of translators, and published by just a few houses. Wearing my lawyer/business hat I’m trying to stir up some French interest in a different genre of Japanese fiction, but the practical obstacle of finding suitable translators with time and interest to help me is formidable. When it comes to Zulu, how many native speakers have the time, competence and interest to translate? How many books can they pump out a year, realistically? (Even assuming they’re paid decently, which most translators are not.) So before you jump into theoretical quantitative models, you should maybe see if there aren’t simpler — and not necessarily law-based — reasons for the problem.

  4. A.J. Sutter says:

    PS: One other point: You say “We can think about this equation as applying generally to works in a particular language market. Or more accurately, we can think about it applying to any specific work.”

    Nope — this is NOT accurate in all publishing cultures. The notion of each individual work as a profit center is an American idea (dating, as André Schiffrin has described, from the 1980s), though it is catching on in some other places. In some publishing cultures, e.g. German-language, there are still publishers who feel committed to e.g., publish translations of Nobel laureates because they feel a social responsibility to make such literature accessible — even though they might sell only a few hundred copies. The literary publishing market in Japan has some similarities. Such publishers expect to make a profit in the aggregate over their product range, not by each work.

    Especially because translation is an inherently cross-cultural enterprise, I suggest you incorporate less Chicago economics and more sociological and qualitative research into your work.

  5. Lea Shaver says:

    Thanks for the great comments, A.J. We are of the same mind on the value of sociological and qualitative research, which is why I’m using a case study approach to test the theoretical predictions and see if they actually hold up.

    Your comments about your own publishing experience are helpful for pointing out specific questions I should be asking the publishers and authors and translators I will be interviewing. Questions like…

    1. To what extent are translation fees negotiated for each particular work, and to what extent is there a “going rate” and a “take it or leave it” approach?

    2. What exactly are the typical rates, or rates for sample books? (If people are willing to share this information?)

    3. What is the market for translators like, how much does it cost to commission a translation, and how does this expense compare to the licensing fee?

    4. Is there a functioning market for translations or are these being done if at all as a “labor of love” by academics and others who take an interest in a particular work?

    5. Is there a sense among publishing houses of social commitment to publish and translate certain works even if they will not be profitable?

    Are there additional questions you would suggest I use to get an accurate picture of the translation market?

  6. A.J. Sutter says:

    Thanks for your reply. Those are a good start. Please be sure that you ask them in the target territories — in South Africa, in Ireland, etc., not just in New York. Also, payment terms, not just the rates, are important.

    In Japan a translator is paid between 2% and 3% of the cover price of the book, which might be per book sold or (more often in the cases I know of) per book printed. Payment is typically within 30 days after the end of the month in which the book was released. That could be a wait of many months without pay, if the book is difficult. (Same for authors, BTW. Advances aren’t a custom here.) The same percentage rate applies to e-books, though of course for sales. My wife, who does E-J translation professionally, recently got a royalty check for e-book sales: roughly US$3.70.

    Also, you should be sure to distinguish markets. Maybe you don’t want to do it as finely as they do in the French publishing industry, but here’s a list from the classification of exhibitors at the Salon du Livre in Paris next month:

    Comics and graphic novels [bande dessinée]/Manga
    Bibliophile
    Essays & current events
    Educational & schoolbooks
    Children’s/Young adult [jeunesse]
    Literature
    Practical books [includes what US calls 'self-help']
    Religious & esoteric
    Humanities & social sciences
    Science, technology & professional practice

    (This might be subdivided further: e.g., computer-related books are sometimes classed in a separate market.) The market for translators isn’t fluid across all of those lines, especially for languages like Japanese and French. As for Zulu, it might be a different story.

  7. A.J. Sutter says:

    Sorry always to have afterthoughts:

    1. Another factor for you to consider is the financing system of publishers and ecosystem of distribution. In Japan, publishers sell to wholesalers, who sell to distributors (book stores, online stores, etc.). But in Japan, all distributors are allowed to return books, without discount. These returns are periodically invoiced to the publisher by the wholesaler. Since the publishers rarely keep adequate reserves for returns, they have to publish more stuff to get the cash to pay those invoices. The industry has some aspects of a Ponzi scheme, with the publishers on the losing end.

    Obviously, this may influence the choices of what to publish. OTOH, since translation cost is based on a percentage of the book’s selling price, not a fixed fee, “lowering the marginal costs of translation” won’t be a reason to choose translating something with mass appeal. The reason to choose something with mass appeal will be to increase revenue. And in Japan, translated books don’t have as much mass appeal as books by Japanese — that’s a sociological factor. (There are always exceptions, e.g. the Steve Jobs biography did well here, I think.) Each territory may have its own peculiarities like this.

    2. I should have consulted my wife first, since I now realize that I’ve been coddled: some publishers take 3 to 6 months after publication to pay authors and translators.