Judgment of 24 March 2021, Case No 27 Cdo 2023/2019 –⁠⁠⁠⁠⁠⁠ Translation as an original work under the Copyright Act

Judgment of the Supreme Court of 24 March 2021, Case No 27 Cdo 2023/2019

(Translation as an original work; Section 2(2) of the Copyright Act)

The Supreme Court addressed an extraordinary appeal filed by the plaintiff concerning whether the translation of a theatre play and its parts is an original work and if so under what conditions.

In the original proceedings the plaintiff (heir of translator J. Z. N.) sought an injunction to restrain the defendant from using the title of the Czech translation of the theatre play “Jak je důležité mít Filipa” (in English “The importance of being Earnest”) and of the notions “Filip” and “mít filipa” in the text of the defendant’s translation of this piece.

In 2012 the defendant created a Czech translation of the theatre play “The importance of being Earnest” originally written by Oscar Wilde. For the title of the play, he used a wordplay previously created by translator J. Z. N., i.e. “Jak je důležité mít Filipa”. Since the Czech language does not have the same idiom as English, it is impossible to use a literal translation. J. Z. N. thus translated this complicated part using the method of functional substitution which means he used a Czech idiom with a slightly different meaning. He then adjusted the name of the main character (from Ernest to Filip) as well as some of the dialogues. The plaintiff argued that the defendant interfered with copyright of J. Z. N.

The regional court upheld the action. It ruled that the abovementioned translated title of the play as well as the used expressions are an original work in terms of Section 2(1) of the Copyright Act and are protected against unauthorised use. The appellate (high) court then reversed the judgment by dismissing the action. It argued that the translated title of the play is, on the contrary, not an original work in the sense of Section 2(1) of the Copyright Act because it lacks the criteria of “uniqueness” of the result of the author's creative activity.

The Supreme Court supported the decision of the appellate court. It stated that copyright protection can cover both work in its entirety as well as its parts (including the title and character names) on the condition of meeting the criteria of “original work” under Section 2(1) of the Copyright Act. That said if one wants to protect a part of their original work with copyright, that part itself must fulfil the legal criteria. This also applies for protection of translations. In that case there is a primary original work and a secondary original work (i.e. the translation) existing in parallel. Whether the translation is a creative work is to be determined separately according to the nature of the translation. The nature of primary work is not a factor here.

The Supreme Court thus emphasised that not every translation is subject to copyright. To be protected by a copyright, a translation cannot be created by merely mechanical transfer of individual expressions. Rather, the translator must fully understand the meaning and attempt to reproduce the nuances of the original. This condition must also be fulfilled for every single phrase of the work, if the translator wants it to be protected. In other words, the copyright protection obtained by the translator for the entire work will not necessarily be reflected in every single passage of the text. When a translator has a lot of freedom in translating the entire work, the evaluation of individual sentences or parts of sentences no longer focuses on how well the overall context of the original language is captured. Instead, it evaluates how much freedom the translator had for their own creativity in translating a specific part of the text and how well they used this freedom.

The Supreme Court concluded that the name “Filip” chosen by the translator J. Z. N. is an ordinary name and does not fall within the scope of Section 2(2) of the Copyright Act for it lacks creative activity by the translator. Similarly, the notion “mít filipa” cannot be protected by copyright due to being a customary Czech idiom (a free element) and thus belonging to a public domain. 

The translated title of the play also cannot be protected by copyright. Even though J. Z. N. was the first to use the translation method of functional substitution, it was the sole possibility to maintain the wordplay of the original title. And since the method used is not subject to copyright, then neither is the translated title. By choosing the method of functional substitution, there remained no space for translator’s creative freedom. Only if J. Z. N. and the defendant had translated the play in any other way, there would have been more space for creative freedom and thus a possibility for the translation to be protected by copyright.

The Supreme Court thus rejected the extraordinary appeal of the plaintiff.