[KS] RE: Brother Anthony's Copyright Questions

[Kent A. Davy]

Brother Anthony wrote>
>
> In the light of this, I wonder if I might ask members of the list
> to share their insights on
> the very vexed question of Copyright. More precisely, the
> immediate reason for my asking is
> that the KLTI is launching a pocket-book series of Korean short
> stories in translation and
> wants to include translations previously published "commercially"
> elsewhere with help from the
> KCAF, in volumes that are still in print. I know that there have
> been conflicts about the legal
> and financial implications of this. The KLTI would surely benefit
> from our list's collective
> wisdom.
>
> I recently wrote to one major publisher of such translations as follows:
>
> <I cannot speak for them but the KLTI -probably- feels that if a
> translator got a fat subsidy
> from them or their predecessors, then the translation "really"
> belongs to them. They probably
> also feel that if the publishers got a subsidy and are not paying
> any royalties or translation
> fees, then their rights should be -- to some extent at least --
> non-exclusive. I think that
> they would (or could) argue that by including some portion of a
> publication in their series,
> which would be widely distributed in free gifts and also through
> commercial networking, that
> would not be unfair competition but would rather serve as
> publicity for the fuller volume which
> people might well not have heard of otherwise. It's in part a
> question of goals. "Getting
> Korean literature widely known abroad" is their essential goal
> and for that all means are
> good...>
>
>

I suspect this is not exactly what you're looking for, but here goes:

I'm by no means an expert in the field (some aspects of which are arcane),
but I did take the basic course in a fancy law school and have had occasion
to keep up my familiarity in twenty+ years of practice, including the past
7+ in Korea.  The questions of copyright posed in this instance are not
particularly vexing.  What is vexing (in many more ways than that at hand)
is Korean attitudes towards it.

In this case, the issue of the respective entitlements of KLTI and the
publishers might have been resolved simply by a little forethought and the
inclusion in the (or a) contract between KLTI and the publishers of some
provision regarding ownership of copyright in the translations and the
reservation of certain rights to the other party based upon their respective
economic contributions and bargained for commercial and non-commercial
expectations.  While it's unclear, it would appear that KLTI either failed
to take any action to protect its interest or failed to obtain expert advice
in satisfactorily negotiating what is usually a pretty standard sort of
commercial arrangement.  If that's really the case, and they have permitted
the publishers to copyright the works in question, then, legally-speaking,
they're just out of luck.  [One thing that is very significantly unclear,
however, is how the publishers obtained the right to copyright the
translations in the first place.  Under the Berne Convention (assuming its
applicability, which depends on the national identities of the publishers
involved), an author of a work owns the translation rights to his work.  He
can transfer those rights to others (publisher, translator, etc.), but
unless he (or his transferee) has done so he has rights of redress against
anyone who undertakes to publish an unauthorized translation,
notwithstanding that considered in and of itself the translation otherwise
is eligible to be copyrighted as an "original" work.]

One might argue, for the reasons given, that the translation "really"
belongs to KLTI, but at worst that may be just another example of the
penchant of many Koreans on Monday to enter into written, legally defined
relations the very purpose of which is to put an end to endless bargaining,
and then on Tuesday to start renegotiating again.  [This sort of thing
happens all the time in Korea, where it is often gotten away with because of
either the appalling vagueness of a lot of Korean law, the deficiencies of
Korean as a language suitable for the specification of negotiated
contractual rights and duties (if the contract is in Korean), or the sheer
recalcitrance of the Korean contract party where the contract is in e.g.,
English and stated to be governed by the law of a more commercially-minded
jurisdiction, but the counter-party still has to clear the hurdles of trying
to enforce the agreement in Korea.]

On the other hand, such a stance at best may be a kind of fuzzy moralism
because it is usually based, as it may be in this instance, on the
simplistic assumption that KLTI bore all the economic burden of the
translation enterprise.  That could be the case, but it's certainly not
clear, and I doubt that it is.  Moreover, again, one signal point of having
laws is precisely to settle matters so people can get on with things on the
basis of settled expectations instead of endlessly haggling.