(By You Yunting) YYeTs is one of fansub groups in China, which translated foreign films and television program and subtitled into a language other than that of the original by fans (not officially licensed translator). YYeTs have translated many foreign films and television programs and developed very fast in China.
Recently, YYeTs claimed that, as Tudou.com used, without permission, YYeTs’ subtitle translation for the video of the Voice and deleted the names of translator, YYeTs tried to negotiate with Tudou.com but was blamed for illegal translation. That raised a question: without the permission of the right holder for the Voice, could YYeTs’ translation receive protection from the Copyright Law?
The video of the Voice, an American reality television singing competition broadcast on NBC, shall be legally regarded as an audio -visual recording. If Internet users used them to practice English, YYeTs’ translation certainly is a type of legitimate action. Nonetheless, if the translation were uploaded to the Internet, YYeTs shall receive consent of the right holder. Since YYeTs translated lots of foreign TV series, movies and shows, a question raised why any right holders did not claim their rights against its translations?
Business is complex. In addition, China is one of the most regulated ideology all over the world, and governmental officials have a strong desire to protect Chinese market and culture, which makes foreign movies and TV series stricter and complicated approval processes and even lots works unable to access to China. Against this background, the right holder of foreign movies and shows is ambivalent and frustrated about the pirated videos and responding translations.
It will take money and energy to exercise their rights. However, if only a few works can legally access to China, crackdown on such large-scale videos piracy and its translation will not increase their commercial profits. Instead, broadcasting their videos through piracy may circumvent the government’s system of web censorship, thus expanding the Chinese market for copyrighted works, which shall be a realistic option for business. Legally, stand back a little farther, the right holder may have the initiative power to take action against piracy.
Subtitle translation of the Voice actually is considered as writing behavior, and its subtitle translation includes creative labors of YYeTs’ translators. However, considering that its translation did not receive consent of the right holder, there is a possibility that its subtitle translation can, theoretically, be protected as “works” in the Copyright Law. After all, whether or not the subtitle translation can be under protection depends on the right holder.
The theory of uncertain effectiveness contract in the Contract Law may be applied into this event. Even though the translation did not obtain authorization from the right holder of the Voice at first, if the right holder ratifies the effectiveness later, the translation should be received authorization and thus be treated as legal works. Otherwise, the translation cannot get protection from the Copyright Law. Before the translation is ratified, the unauthorized translation shall be regarded as undetermined effect, neither illegal nor legal.
Based on the aforementioned analysis, an interesting conclusion comes out that other websites’ use of YYeTs’ translation for the Voice did not need to obtain authorization from YYeTs but Tudou.com’s use of YYeTs’ translation shall have received authorization. The translation has not been defined its legal effectiveness yet, so that other websites did not need to obtain authorization. However, Tudou.com shall, acting as the legal licensee from the right holder of the Voice in China, be entitled to use self-translation or use others’ translation, so that Tudou.com’s use of YYeTs’ translation shall be regarded to ratify the effectiveness of the translation. Therefore, since Tudou.com started to use the translation, the original uncertain effectiveness translation shall be treated as legal works under the protection of the Copyright Law. Then, at this time, YYeTs shall have rights to claim its rights for the use of its translation against whoever use the translation.
Seen from YYeTs’ claim on Weibo, YYeTs did not request so much, but demand for the right of authorship. In our opinion, this should not be brought to the court. In closing, the afore-analysis in this article is the author’s own views, not always correct. We welcome suggestions and comments.