To what extent do territorial print rights preclude online-publication rights?

Question

A US literary journal would like to publish online my new English translation of dead author É's poem, written originally in French.

The poem has been translated before, and is in fact in print in a collection published a decade ago in the UK, where it is under exclusivity. (In other words, I can't publish my version in the UK, without that publisher's permission.)

So, I contacted the rights holder (the original publisher, working on behalf or in conjuction with the author's estate), and after some back and forth, they were just about to issue the permission ... when it suddenly occurred to them that, since web publication is global, this might impinge on the UK exclusivity. (They don't sound exactly sure.)

Of course, if they, who issued it, don't know the details of that exclusivity, no one does. But my question is a general one. Does acquiring territorial (print) translation rights really prevent anyone anywhere from acquiring (in effect, world) online-publication rights?

(Is there perhaps a parallel to be drawn from, e.g., Gutenberg Canada's online publication of, e.g., Flann O'Brien's The Dalkey Archive, which is in the public domain in Canada but not yet in many other countries? That etext features this disclaimer: "If you live outside Canada, check your country's copyright laws. If the book is under copyright in your country, do not download or redistribute this file." Extending that logic to my poem, perhaps all would be well if the US journal prefaced it with a disclaimer to the effect, "If you live in the UK, do not download this poem"?)

I'm trying to inform myself before continuing negotations with the rights holder.

Thanks.

Answer 1

This would probably get better answers on the LAW stack, but one of them would be from me anyway, so here goes.

There are several issues here. The first is that each different translation of the original poem is a separate work with its own copyright Each is a derivative work of the original poem. The holder of the copyright on the original (source) poem (or the holder's agent) must give permission for anyone to create and distribute a translation, if the original is still protected by copyright. (up to 70 years after the author's death in many countries, including France and the UK.). That permission can, if the holder chooses, be conditioned on a distribution agreement, limiting it to particular regions. One translation does not infringe the copyright of another, assuming it was made directly from the original.

If the copyright holder of the original has (perhaps through the publishers) contracted with a UK publisher of an earlier translation to grant exclusive UK rights to that publisher, that contract must be honored by them. But what exactly have they granted. Have they granted an exclusive right to print publication or to any publication in any medium? Have they granted rights to any translation of the original, or only to a specific translation? The exact wording of the contract with the UK publisher will determine this. Without a copy of that contract, there is no way to be sure what rights it does and does not cover. There is no automatic rule that all publishing contracts must follow. Each set of contracting parties can choose just what rights they are and are not granting and paying for.

If the contract was written before online publication was common, or was not updated to take online publication into account, it may just say "all publication rights in the UK" or some similar language. In that case online publication would be include in "all rights". Whether an online mechanism can be devised to permit general online publication without violating the existing contract is hard to say. It is possible for a web site to restrict access based on the geolocation of the IP address used to access the site. This is not foolproof, but would keep most people in the excluded area from being easily able to access the site.

The copyright holder on the original (or the holders agents) would need to decided if such a mechanism would satisfy them. And the online magazine (or other online publisher) would need to decide if it was willing to implement such a restriction. Other mechanisms might be acceptable to both parties.

You as the author of the new translation cannot force the copyright holder to give you permission at all, or to accept a particular mechanism or arrangement as satisfactory. The holder will asses the risks of a suit from the current UK license holder, and the costs and bother of making a new arrangement, versus the value to them of the new translation.

A lawyer experienced in copyright issues could review the existing contract and help determine how (and if) a new publication could be arranged without violating it. The publisher of the original might have such a lawyer in its employ. You could hire one, but there would be little point without a copy of the existing contract, which you might not get.