Requirements for the establishment of a translation copyright
[Supreme Court judgment 89 다카 4342 sentenced on February 27, 1990]
1. Judgment matters
The publisher asked A to translate the novel by examining the requirements for establishing a translation copyright under Article 5, Paragraph 1 of the Copyright Act. If the publisher requests B to translate giving A’s translation, B rewrites A’s translation without permission of A, and then the publisher publishes it. The following discusses the above act considering the distinction between the duty of 'reproduction' of a work and the distinction between plagiarism and creation.
2. Summary of judgment
According to Article 5 (1) of the Copyright Act, a person who has translated another person's work into another language with the consent of the creator is stipulated to have the copyright in the translation within the scope of not impairing the rights of the original author. The above translation copyright is construed to be established at the same time as the completion of the translated work regardless of the specific form or procedure due to its nature. It cannot be viewed as directly impairing the rights of the original author just because the contents of the translation do not conform to the will of the original author.
Combining Articles 5 and 64 of the Copyright Act, “reproduction” of another person’s work without the consent of the creator is an infringement of copyright, and “reproduction” refers to copying by the method of each subparagraph of Article 5 (2) of the Copyright Act, or adding or decreasing the degree to which it can become a new literary work. It is different from creation, which creates a separate, independent new literary work that has no substantial similarity to its original work. It is different from plagiarism, or original work that is copied almost identically to the original work.
When the publisher, the defendant, requested an English translation of a Korean novel from a Korean plaintiff and then asked an American to translate it again. The American lacked understanding of Korean culture, customs, and the special world of consciousness that the author was trying to deliver, and the American was not familiar with the special vocabulary, the defendant had fully foreseen that the American would have to rely heavily on the Korean plaintiff’s translation of the already completed manuscript. The translation was published even after receiving strong protests from the plaintiff for plagiarizing the translation of the manuscript. As such, it constitutes a joint misconduct that infringes Korean plaintiff’s copyright.
*I am a student learning IP, not an IP expert. Translation is by Google and my insufficient English skillsI hope it will be helpful for those who do not have the relevant knowledge or who want to learn about IP.
*The above is my learning from lectures by Prof. Moon available at K-Mooc. Link to the course is as below: kmooc.kr/courses/course-v1:YeungnamUnivK+YU21900+2021_01/course
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*The above is what I learned from a book compiled by the Korean Intellectual Property Office and Korea Invention Promotion Association (published by Pakmungak) entitled “Introduction to Intellectual Property, Understanding Intellectual Property”
*The above is what I learned from a book by author Ocica O'Kim (Korean, Chinese, Japanese, and English Chinese Character Center) called Core Cases of Intellectual Property Rights.
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