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A community member asked if using Google translations of compatibly licensed content on Wikipedia constitutes a violation of Google's copyrights. This member references as support Rebuilding Babel: Copyright and the Future of Machine Translation Online by Erik Ketzan.[1]

It is highly unlikely that Google gains copyright ownership when a person uses their software to make a derivative translation. I am unable to find any court rulings that would support that outcome. This concern appears to be rooted in the infringement section of Rebuilding Babel.

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Translations are classified as derivative works in U.S. copyright law.[2] To obtain copyright protection, a derivative work must be different enough from its source material to be considered an original work of authorship,[3] meaning that the translation is “independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.”[4]

It is questionable and seemingly untested whether the use of translation software is sufficiently creative to provide copyright protection. It is possible that the selection of translation software (e.g. Google instead of Babelfish) could count toward such creativity, but it would likely face the same challenge as simply pressing “start” on a tape recorder to capture unoriginal nature sounds.[5]

Assuming that such a mechanical translation is a protected derivative work (which may be unwarranted; See here for a comment not from WikiLegal), the resulting copyright owner would be the user of the software, not the software manufacturer. For example, “when a user requests a Web page contained in the Google cache by clicking on a “Cached” link, it is the user, not Google, who creates and downloads a copy of the cached Web page. Google is passive in this process. Google's computers respond automatically to the user's request.”[6] Since the Supreme Court defined “author” as “he to whom anything owes its origin,”[7] it follows that person who initiated the translation would be the author.

However, a copyright owner has the exclusive rights to prepare and authorize derivative works[8] and a derivative work created without that authorization does not gain copyright protection.[9] An infringing work is any work that violates a copyright owner's exclusive rights, regardless of whether it is just a copy or an original derivative work.[10] Essentially, a derivative work “is saved from being an infringing work only because the borrowed or copied material was taken with the consent of the copyright owner of the prior work”[11]

Rebuilding Babel

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In discussing the legal aspects of mechanical translation, Ketzan focuses on the infringement liability for unauthorized translations, not on who would own an authorized translation.[12] Ketzan begins the infringement section by noting that “[n]o federal court has yet addressed the copyright implications of machine translation,” then states that “[i]t is beyond question that translations constitute derivative works, which are actionable if not authorized by the copyright holder of the original.”[13] He follows by briefly examining whether machine translations even qualify as translations under the statute.[14] Ketzan goes on to assume that they would and that the software provider could possibly face some form of liability for infringement.[15]

On that assumption, he quickly surmises that primary liability would likely fall on the user, not the software provider, because a number of federal courts have required a “volitional act” beyond “automated copying by machine occasioned by others.”[16] He goes on to investigate at length the secondary liability a company could face for their users' infringements.[17] Though not directly addressing ownership, Ketzan's conclusion that only the user would face primary liability seems to support the notion that the user would own the translation, not the software provider.

Conclusion

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Given the situation of a Wikipedian using Google to translate compatibly licensed content, it is very unlikely that the use of that content on Wikipedia violates any Google copyrights. Assuming that any derivative copyright attaches, it is most probable that the Wikipedian would own it. Since the source material is presumably available by CC-BY-SA 3.0 or a similar license, the translated work would be safe for use on Wikipedia as long as its source is properly attributed.

References

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  1. ↑ Erik Ketzan, Rebuilding Babel: Copyright and the Future of Online Machine Translation, 9 Tul. J. Tech. & Intell. Prop. 205 (2007) (hereinafter Rebuilding Babel).
  2. ↑ 17 U.S.C. § 101 (2010) ("A 'derivative work' is a work based upon one or more preexisting works, such as a translation . . . .").
  3. ↑ Id. ("A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a 'derivative work.'”); 1 M. Nimmer & D. Nimmer, Copyright § 3.03 [A] (2012) (hereinafter Nimmer).
  4. ↑ Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 345 (1991).
  5. ↑ See 1 Nimmer §2.10 [A] [2] [b].
  6. ↑ Field v. Google Inc., 412 F.Supp.2d 1106, 1115 (D. Nev. 2006).
  7. ↑ Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884).
  8. ↑ 17 U.S.C. § 106(2) (2002).
  9. ↑ 17 U.S.C. § 103(a) (1976).
  10. ↑ 17 U.S.C. § 501 (2002).
  11. ↑ 1 Nimmer § 3.01.
  12. ↑ Rebuilding Babel pp. 19-26.
  13. ↑ Id. at pp. 19-20.
  14. ↑ Id. at p.20.
  15. ↑ Id.
  16. ↑ Id. (quoting Religious Tech. Ctr v. Netcom On-Line Commc'n Servs., Inc., 907 F.Supp. 1361, 1369-70 (N.D. Cal. 1995)).
  17. ↑ Id. at pp. 20-26.
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