The Spanish Anti Piracy Federation (“FAP”) demanded the operator of a website to shut it down because FAP claims it violates Spanish Copyright laws. The website offers subtitles for movies and television shows that have been translated from, mostly, English original versions. FAP’s action against the cyber-translator is not uncommon in the European Union where some countries have already taken legal action against cyber-translators of movies and television shows.
In the European Union cyber-translator sites of movies and shows are becoming popular, as evidenced by their million of monthly hits. Translation services offered by these particular websites are free of charge. Hence, FAP and other similar agencies throughout Europe consider that these sites are violating copyright laws even though their services are not-for-profit. FAP considers that subtitles are derived from the protected work and they cannot be translated without the author’s consent.
This particular Spanish case involved the website wikisubtitles.net, a site registered in Canary Islands. FAP requested the owner of wikisubtitles.net to shut his site down or face legal action for copyright infringement. FAP claims wikisubtitles.net “places a large amount of cinematographic work at users’ disposal” and “distributes, for profit, all or part of a protected work.” Wikisubtitles.net claimed it was not distributing anything and its translation services were not for profit.
Spanish Copyright Acts protects cinematographic works as part of the generic category of audiovisual works.’ Article 86(1) of the Spanish Copyright Act specifically defines audiovisual works as ”creations expressed by means of a series of associated images, with or without incorporated sound, that are intended essentially to be shown by means of a projection apparatus or any other means of communication to the public of the images and of the sound, irrespective of the nature of the physical media in which the said works are embodied.”
Additionally, Spanish Copyright Act defines ‘derivative works’ as works taken from pre-existing works. Article 11 confers intellectual property protection to derivative works “without prejudice to the copyright in the original work.” Among the derivative works listed by Article 11, ‘translations and adaptations’ is the first derivative work mentioned.
Thus, translations and adaptations of audiovisual works enjoy intellectual property protection as derivative works under the Spanish Copyright Act. Yet, the author of an original work may authorize its adaption into a derivative work according to the same Article 11 of the Copyright Act. If the author authorizes adaptation of an original work into a derivative work, the author still retains the moral rights on the work. Indeed, the author has remedies available for any adaptation that deviates from the limits of the authorization. Translations protected as derivative works also provide rights to the translator, as long as they are consistent with the rights of the author of the original work.
Spanish law is consistent with international standards regarding intellectual property rights on derivative works, including translations. So, the key question is: do cyber-translators require consent from the author of the original work? Even in those cases where the translation is done by mechanical means? It is fair to say that there may not be a specific and broadly-applied answer to these questions. Each case most is confined to its facts and jurisdiction.