Intellectual property right scam ? (in a contract) Thread poster: Alice H.
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Alice H.
France
Japanese to French
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Hi all,
I received a contract in which a paragraph, related to the intellectual property rights, makes me wary.
Have you ever seen anything like this?
"The Freelancer will, at its own expense, defend, indemnify and hold harmless [name of the translation agency] against all losses, damages, costs or expenses and other liabilities (including legal fees) incurred by, awarded against or agreed to be paid by [name of the translation agency] arising from a suit, demand,... See more Hi all,
I received a contract in which a paragraph, related to the intellectual property rights, makes me wary.
Have you ever seen anything like this?
"The Freelancer will, at its own expense, defend, indemnify and hold harmless [name of the translation agency] against all losses, damages, costs or expenses and other liabilities (including legal fees) incurred by, awarded against or agreed to be paid by [name of the translation agency] arising from a suit, demand, or other proceeding brought against [name of the translation agency] by a third party to the extent the suit alleges that [name of the translation agency] use of the Deliverables or the Services infringes any Intellectual Property Right of that third party."
Thanks for your help! ▲ Collapse
| | | | achisholm
United Kingdom
Local time: 19:36
Italian to English
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Unless there is evidence of gross misconduct of malfeasance, usually the penalty is only limited to the value of the task/project.
| | | | Alice H.
France
Japanese to French
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TOPIC STARTER
Thanks for your reply.
Do you mean you have already seen contracts with that kind of paragraph?
I tend to understand it as being obliged as a translator to pay for legal fees in case a third party files a suit against the translation company... am I right?
| | | | Adieu 
Ukrainian to English
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So is this if YOU plagiarize a translation for them, or does this extend to any theft of intellectual property by Unnamed Agency and/or their clients in which you unwittingly participated by translating said stolen IP?
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Alice H.
France
Japanese to French
+ ...
TOPIC STARTER
I have no idea! The previous paragraph only stipulates that the translator gives all rights regarding the translation to the agency.
| | | | | You can't assign rights you don't hold | Jun 10, 2021 |
I actually changed the wording on my invoices a few years ago because of this issue. I had never really thought about it, but one particular project made the issue clear.
You can give the agency your permission to publish your translation; however, that alone is not sufficient for their client to legally publish the translation. The author or whoever holds the rights to the source text (or at least the right to translation) still needs to give his or her permission to publish the t... See more I actually changed the wording on my invoices a few years ago because of this issue. I had never really thought about it, but one particular project made the issue clear.
You can give the agency your permission to publish your translation; however, that alone is not sufficient for their client to legally publish the translation. The author or whoever holds the rights to the source text (or at least the right to translation) still needs to give his or her permission to publish the translation.
Suppose a client goes to the agency and orders the translation of someone else's interesting blog, for example. The agency goes to you, you translate the text and assign the agency the right to use (resell the right to use) your translation. If the client then publishes your translation without the permission of the original author of the blog, that is a violation of the original author's intellectual property rights. The client needs both your permission and the permission of the blogger to publish a derivative work (such as a translation).
The way the clause is worded, the agency seems to be saying that this constellation would be your administrative and financial problem. That is unacceptable, because you have no access to the relevant information and no way to prevent this from happening or even know if it is happening. It is fine if the agency wants to protect itself in the unlikely case that you personally engage in plagiarism, but not in this case. It might also be designed to prevent freelancers from using their intellectual property rights as a way to force reluctant payers into paying up.
On the other hand: It is not unreasonable to wonder whether this whole issue is sufficiently realistic that there is any reason to be worrying about it.
And please note: This is just the musings of some dude in the Internet. I've read about this issue and am interested in it, but have no relevant expertise whatsoever. ▲ Collapse
| | | | Daryo
United Kingdom
Local time: 19:36
Serbian to English
+ ...
| Sounds like a "kind of" scam to me | Jun 11, 2021 |
or more precisely as something that merits to be labelled as a "grossly abusive" clause - absolutely unacceptable.
According to this clause it the client didn't bother to secure translation or publishing rights before ordering the translation, then the client would be blameless and it would be translator's responsibility to take the flak???
Or even worse, if the client decided to publish the text using unlicensed fonts, then any copyright suit from the font maker would ... See more or more precisely as something that merits to be labelled as a "grossly abusive" clause - absolutely unacceptable.
According to this clause it the client didn't bother to secure translation or publishing rights before ordering the translation, then the client would be blameless and it would be translator's responsibility to take the flak???
Or even worse, if the client decided to publish the text using unlicensed fonts, then any copyright suit from the font maker would be the translator's problem???
This level of "passing the buck" to anyone else in sight is far more than "hard negotiation tactics" - it's just plain abuse.
As for "doesn't matter, it would never happen" - just wait that it does happen ... ▲ Collapse
| | | | Alice H.
France
Japanese to French
+ ...
TOPIC STARTER | Thank you so much! | Jun 11, 2021 |
Thank you so much for confirming my doubts. I surely didn't sign this but I hope other translators who received the same contract did read the terms carefully.
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Adieu
Ukrainian to English
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| Some people will laugh | Jun 11, 2021 |
...but this is most certainly part of a major trend.
In this case, for probably unenforceable but nonetheless ubiquitous attempts to sneak brazen crap into contracts.
Ever since contract culture got infested with the twin plagues of arbitration and NDAs, it's like the lot of them completely lost the plot.
[Edited at 2021-06-11 22:21 GMT]
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Yes, Adieu, I’m laughing
What is it with translators and contracts? It’s obviously referring to a scenario where the translator has done something wrong. You cannot be expected to just randomly pay for someone else’s mess. What court of law would uphold such a stupid idea?
Has nobody ever dealt with lawyers in real life? They spend their lives covering every conceivable part of their client’s back... See more Yes, Adieu, I’m laughing
What is it with translators and contracts? It’s obviously referring to a scenario where the translator has done something wrong. You cannot be expected to just randomly pay for someone else’s mess. What court of law would uphold such a stupid idea?
Has nobody ever dealt with lawyers in real life? They spend their lives covering every conceivable part of their client’s back and inventing shit. I’ve just been asked as part of our house sale whether the solar panels protrude more than 200 metres from the roof. Yes, I said, I like to give the RAF a low-flying challenge. ▲ Collapse
| | | | Adieu
Ukrainian to English
+ ...
Most business legal disputes are like poker, where whichever side has more cash to burn is all but guaranteed to win.
If this were in the context of some Apple v. Samsung suit, then sure, all the wildly unreasonable contract clauses would quickly get shredded in court.
But most freelancers have no capability of rebuffing a bogus legal challenge from a corporation, however flimsy.
| | | | Daryo
United Kingdom
Local time: 19:36
Serbian to English
+ ...
| Oh yes, you can ... | Jun 13, 2021 |
Ice Scream wrote: Yes, Adieu, I’m laughing What is it with translators and contracts? It’s obviously referring to a scenario where the translator has done something wrong. You cannot be expected to just randomly pay for someone else’s mess. What court of law would uphold such a stupid idea? Has nobody ever dealt with lawyers in real life? They spend their lives covering every conceivable part of their client’s back and inventing shit. I’ve just been asked as part of our house sale whether the solar panels protrude more than 200 metres from the roof. Yes, I said, I like to give the RAF a low-flying challenge.
"You cannot be expected to just randomly pay for someone else’s mess."
Oh yes, you can ... I you have been brainless enough to sign a clause like this one and you don't have the time and the resources to argue in courts that the clause is unenforceable, while for the big agency what they have to spend in ruining your business is no more than a mosquito bite.
What makes you so sure that all and any "stupid idea" is bound to be illegal? Plus, lawyers don't do "(subjectively) obvious" only "what's literally written there" ... Just being realist. BTW I had some experience of lawyers (some brilliant, some utterly useless).
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