Are fan translations an infringement of copyright?

Fan subtitles can provide useful additional information

The Swedish police has raided and taken offline Subtexter, a website where users upload and exchange fan-made files that can be used by a media player to provide subtitles to popular movies and shows before their translations have been made available by the rights holders. The action was taken at the request of the infamous Copyright Alliance, the Swedish arm of the content industries.

This action has caught many people by surprise. These are fan-made translations of works, and many people wonder if they can really be infringing copyright. I was surprised at how many people really believe that creating a translation of a copyright work is legal. See for example the discussion thread under this article in Torrentfreak, where a person claims that “There’s nothing illegal about custom subtitles”, and several people comment to agree. Some similar incredulous reactions can be found in this TechDirt article.

So, what does the law say?

Well, the law is clearly on the side of the copyright owners. Translations are adaptations under copyright law (derivatives in some jurisdictions) that require the authorisation of the owner. Art 2 of the Swedish Act on Copyright in Literary and Artistic Works clearly states that translations are an exclusive right of the copyright holder:

“Article 2.Subject to the limitations prescribed hereinafter, copyright shall include the exclusive right to exploit the work by making copies of it and by making it available to the public, be it in the original or an altered manner, in translation or adaptation, in another literary or artistic form, or in another technical manner.”

Therefore, fans and users do not have the right to make available to the public a translation of a protected work without the express permission of the owner. Moreover, this is an international right recognised by the Berne Convention in Art 8, which reads:

“Authors of literary and artistic works protected by this Convention shall enjoy the exclusive right of making and of authorizing the translation of their works throughout the term of protection of their rights in the original works.”

As the legal issue is quite straightforward, the real question here is one of enforcement, and perhaps to a lesser extent, a related moral issue. Should the police pursue fan subtitle sites? I strongly believe that the police may be wasting resources in something that is mostly a niche market, fans create subtitles out of love for the originals, and also as a form of helping a community of users. While the site operators may be profiting a little from web adverts, the actual infringers, those making the translations, gain nothing from it. While commercial endeavour does not have any bearing on copyright infringement, it might serve as a good indicator of whether something needs to be prosecuted by law enforcement authorities, or if this is a civil matter that needs to be resolved through private litigation.

Then there is the moral argument. This case reeks once again of the copyright industry pursuing their customers. It is unfair and heavy-handed, and produces the opposite effect. If one site is taken down, users will simply continue on to another. There are hundreds of subtitle sites out of reach of the Swedish jurisdiction.

Here is an idea, make subtitled legal content available quickly, maybe even using the fan sub network. Maybe then people will buy more content.

ETA: Nevali on Twitter has suggested that maybe translations fall under one of the exceptions that allow adaptation of a work for the benefit of disabled people. This would be an interesting test of those exceptions, but they tend to be quite specific in nature, and there cannot possibly be any other function. The Swedish Act says in Art 17:

“The making of copies, the distribution and the communication to the public pursuant to this Article must not be carried out for commercial purposes, nor must the copies be used for purposes other than those mentioned in the Article.”

This to me rules out most (if not all) fan sub websites, which clearly are not intended to provide the works to disabled people.