Chapter 1.

Scope of the Study

May an original literary work be translated? Are translations protected? Can court
decisions and official documents, works in the public domain be translated? Are
databases containing original works and their translations protected? How is the
respective ownership of original works, translations and databases resolved? All these
questions are at the core of this Study which focuses on intellectual property
rights.
The notion of "intellectual property" is defined by the World Intellectual Property
Organisation Convention (article 2(viii)) as follows: Intellectual property shall include
the rights relating to: literary, artistic and scientific works; performances of performing
artists, phonograms, and broadcasts; inventions in all fields of human endeavor;
scientific discoveries; industrial designs; trademarks, service marks, and commercial
names and designations; protection against unfair competition; and all other rights
resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
The term 'intellectual property' refers therefore broadly to the creations of the human
mind. Creators are granted exclusive rights over their creations under international,
European and national legal instruments.
This Study concentrates on copyright and database rights, which are intrinsically
linked and of particular importance when addressing issues related to human and
machine-aided translations. .
The Study also provides a specific attention to the impact of new technologies and new
business models in the global translation industry.
In a synthetic form, this Study aims at providing legal information and clarification with a
view to answer the following three key questions:
Excluding this chapter, this Study is divided into seven main chapters.

Chapter 2 ("The development of machine-aided translations") aims at explaining

the basic technical aspects of machine aided-translations. It is a necessary step in
order to grasp some of the legal issues which will be examined in the following
chapters and sections. Chapter 2 will also be the first occasion to describe the
upstream-downstream approach we adopted for the purpose of this Study.

Chapter 3 ("General legal framework: copyright and database rights") ambitions

to present the relevant legal background with regard to copyright and database
protections at international, European Union and national levels. Principles of
territoriality, national treatment and reciprocity will also be briefly discussed.

Chapter 3 will notably shed some light on the complexity of copyright systems
within the European Union and the disparities between Member States.

Chapter 4 ("Copyright protection of source documents (upstream approach)") is

a core chapter of this Study. It aims at answering the underlying and
fundamental question as to whether sources or materials to be translated are
protected under copyright. The term "upstream" echoes the source materials that
pre-exist and are used by individuals and/or into machines/databases in order to
generate a new 'work' downstream, i.e., the translation.
The following copyright issues are covered in chapter 4: works eligible for
protection, derivative works, conditions of protection, ownership and transfer of
rights, exclusive rights and exceptions to such rights, infringement and remedies.
Particular attention will be paid to the notion of "originality", which is the essential
requirement for copyright protection.

Chapter 5 ("The right of translation") intends to provide some essential

information regarding the legal status of the right of translation.

Chapter 6 ("Copyright protection of translations per se (downstream approach)")

is the second core chapter of this Study. It aims at examining the main
intellectual property protection of the translations themselves, including machineaided translations. This is the so-called "downstream" approach.
The chapter starts by providing a detailed analysis of the legal status of
translations. Afterwards, a distinction is made between translations, on the one
side, and other derivative works, on the other side. Translations are then
contemplated as possible subject-matters of copyright protection. In that regard,
a particular emphasis is put on the "originality" requirement. The chapter pursues
by providing specific guidance with respect to machine-aided translations. Finally,
translations will be envisaged under another angle, as a possible infringement of
the copyright on the source documents.

Chapter 7 ("The protection of translation tools by database rights") is the third

core chapter of this Study. It intends to demonstrate that issues related to
database are of substantial importance when discussing machine-aided
translations. After providing a short view on the general legal framework around
databases, the chapter continues with the particular protection of databases under
European Union law. Chapter 7 will especially distinguish between protection of a
database as such under copyright, and protection of a database under the
European Union-specific Sui Generis right. At the end of that Chapter we will try to
draw preliminary findings regarding the protection of translation tools under
database rights.

Chapter 8 ("Translation contracts") closes this Study. Its aim is to provide a short
and practical analysis of basic principles applicable to translation contracts. It does
not intend to be exhaustive. More specifically, general provisions applicable to
translations contracts as well as provisions related to copyright in these contracts
will be examined.

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