5 Tips for Translators Who Want to Start 2016 Off on the Right Foot

2016 Marty

It’s that time of year again when the “New Year” reminds us that 365.2422 days have gone by since the last time 365.2422 days went by. Big Whoop!? Family gatherings, parties, Champagne, and fireworks are all not-so-subtle reminders that time passes and we can make the most of it if we choose to. So we make resolutions and renew our faith in new beginnings. “This year, I will seize the day,” many of us tell ourselves, and some of us actually do. So for the doers out there, here are five things you should most definitely do if you haven’t already.

1. Get your taxes and legal “stuff” in order: Nothing reads “amateur” like not having your paperwork in order. If you want to compete in the high-end market, you need to have your tax and legal situation under control. Register yourself and/or your business as required by domestic law, make sure your invoices are up-to-date and all mandatory information is properly displayed where it should be in accordance with local law, and double check whether you’re meeting all legal and tax requirements for doing business in your area.

2. Research your market: But “for real.” I’m not talking about reading the same old tired tips and posts by the same old winners of internet popularity contests. I mean really research your market. What market do you want to cater to? Who are the key players in that market? What entry barriers are there? What is expected of language professionals? How does that market play into your local economy? What I’m talking about is not reading superficial texts on marketing in general or translation in particular. I’m talking about serious market research.

3. Update/review your SWOT analysis: A good business plan (see next tip) starts with a cold honest look at ourselves and our business; our strengths and weaknesses; opportunities and threats in the business world. If you’re reading this post because you want to escape the hamster wheel and shift to a better market segment, then you need to know whether you have what it takes to cater to it in the first place. Though nowhere near enough, SWOTs and similar assessments are a good place to start; and if turns out you don’t have what it takes, they will help you figure out your shortcomings and how to overcome them.

4. Update/draft your business plan: I’m writing this post on December 26th, I expect to publish it on December 28th, if that’s when you read it and you haven’t updated your 2016 business plan yet (or what’s worse, you have nothing to update because you have no business plan at all) then get to it! You need to start 2016 with a clear sense of direction; and each business move you make needs to be consistent with that.

5. Plan your CPD: If you did a good job on your SWOT, then you’ve identified your shortcomings and/or areas of opportunity you wish to explore; and continuing professional development (CPD) is essential to both. Find and schedule relevant courses, webinars, conferences, etc. to develop and maintain knowledge and skills that are important for your business. At the risk of blatant self-promotion, if you’re a little lost as to translation contracts (NDAs, T&Cs, etc.), then you might want to add my e-CPD webinar on “Binding Agreements and Legal Principles for Translators” to your list.

Work For Hire versus Literary Translation Contracts 101

contract

In last week’s post about translation contracts and NDAs one of my readers left a very interesting comment on copyright. In that post, I had mentioned something about literary translation being in a whole different ball game on the count of Intellectual Property (IP) Law; but as my reader wisely pointed out, in some countries, unless they waive their rights, translators hold intellectual property rights over all their translation work including “work for hire” jobs. Needless to say, it’s not always that simple, in some countries Intellectual Property Law (IP Law) may clash with other laws. So the game rules aren’t always that clear.

In addition, clients may have good reasons to ask translators to waive IP rights on non-literary jobs; while translators, in turn, may have no interest in holding IP rights over certain types of translations anyway. Although IP is not intrinsically problematic or complicated, things can get pretty messy when someone tries to rip off someone else’s translation or when machine translation engines enter the scene claiming IP rights.

All these issues raised by readers got me thinking about what other legal questions and issues translators may have. So I went online to do a little research and found a lot of confusion and misinformation about the basics of translation contracts. Thus, in this post, I will be addressing some FAQs I saw online. Other, not-so-basic-but-equally-important-questions will be addressed in future posts.

Work for Hire Translation Contracts

Contrary to popular belief, an NDA is not really a work for hire translation contract. In fact, NDAs used to be about protecting confidentiality, until agencies had the bright idea of broadening their scope and using them to replace independent service agreements. Therefore, a lot of these frankensteined NDAs are deficient both in their originally intended use as non-disclosure agreements and their ad hoc use by agencies.

But epic fails in NDAs are not the only thing causing confusion and misinformation when it comes to translation agreements. There’s also the issue of what translators focus on and what they overlook. It seems most translators focus their negotiations and agreements on very few elements: fees, payment date and/or terms, and rush fees (when applicable). This leaves out a lot of very important elements that often result in loss to translators:

1) Copyright: Who holds IP rights? In work for hire agreements, it is often in the best interest of the translator to waive copyright and spare him or herself the burden of having to protect copyright, trademark or other rights, but that really should be evaluated on a case-by-case or client-by-client basis.

2) Confidentiality: To what extent is the translator responsible for protecting confidentiality? If the translator is using machine translation engines then the question of confidentiality is not so simple.

3) Fees: Other than per word or per job fees and rush fees, translation contracts should include cancellation or withdrawal fees, late payment charges, additional service fees (research beyond a standard translation, additional review fees if, for example, the client changes the source document after the job has already started, post-delivery changes per subjective client preferences or terminology, formatting, etc.), additional costs (out of pocket expenses incurred by the translator that are not part of a standard or routine translation job, this may be particularly important to sworn public translators), etc.

4) Indemnification and Hold Harmless Clause: The purpose of a hold harmless clause in a translation contract is to absolve the translator from any responsibility for damages or other liability suffered by a third party arising from the translation transaction; while the purpose of an indemnification clause is to ensure reimbursement for loss. Imagine, for example, your client Acme asks you to translate an agreement between them and Widgetco. You should not be responsible or liable for any damages suffered by Widgetco by virtue of their agreement with Acme, unless said damage is a direct result of a translation error on your part. Changes by others matter here as well. You should not be responsible for any changes made to your work by anyone other than you.

5) Governing Law and Jurisdiction Clause: This is a big deal… a really BIG DEAL! Depending on where you are in the world, the governing law and/or jurisdiction can make or break any chance you might have of enforcing your agreement or protecting your rights if things go sour. So be careful what you sign!

6) Dispute Resolution Clause: It may sometimes be in everyone’s best interest to resolve contractual disputes via extrajudicial processes such as arbitration or mediation, when applicable, instead of submitting disputes to the courts. Alternative dispute resolution is faster, less expensive and often much more effective than litigation.

Literary translation contracts

Literary translation contracts are not different from work for hire contracts in terms of Governing Law, Jurisdiction, Dispute Resolution, and Indemnification and Hold Harmless Clauses. All of the above also applies to literary translation. However, they have some characteristics of their own:

1) Changes by Others: Literary Translators should make sure publishers and/or authors agree not to make any unapproved changes to their work.

2) Advance and/or Partial Payment: Literary translation jobs often go on for months on end and translators have to eat in the meantime! I once worked on a book for which the author sent me one chapter a month for 14 months. Needless to say, it was not reasonable for the author to expect me to wait until the entire book was translated to get paid and my contract was quite different from a work for hire contract. Among other things, I had negotiated several partial payments throughout those 14 months. Asking for advance or partial payment is perfectly reasonable, especially if the job will require one’s full dedication.

3) Royalties: Most agreements include hard covers and paperbacks, but e-books and audio-books should be included as well.

4) Translation Credits: The translator’s name should appear on the cover, but we all know this is something publishers are often very reluctant to do. Either way, it should appear somewhere and that should be stipulated in the translation contract.

5) Copies: Translators should receive a certain number of free copies of their work and should be able to purchase more copies at a discounted rate.

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Of course, this list is by no means comprehensive, but is rather an introduction to the basics that sometimes get overlooked. Consider it a starting point, if you will, and then let your negotiating skills take you where they may!

A Legal Distinction Between Translating and Selling Hot Dogs

Marty Selling Hot Dogs

In the civil law tradition, we have a little expression that goes nemo auditur propriam turpitudinem allegans meaning roughly “no one can be heard to invoke his own turpitude” and basically boils down to “tough luck.” If you don’t know what translation is from a legal point of view, then it will be very difficult for you to assess an agreement before entering into a contract. And, once you’re in, the contract will have to be blatantly abusive, unfair, inequitable or unlawful for you to be able to get out of it and exercise the rights to which you would otherwise have been entitled had you not bought into the widespread misconception that translation contracts involve the sale of goods, like hot dogs.

Imagine, for example, that an agency were trying to stick you with a clause by which you will not get paid until the end client pays the agency. If you took a look at your sources of law and understood what kind of contract you were dealing with, then you’d know that such clauses, though applicable to contracts of sales of certain commodity goods under certain circumstances in some jurisdictions, are not generally applicable to service agreements in a bunch of others. Imagine instead that your client wanted to add the creepy spy clause to your NDA, you’d know where to look for arguments against said clause. Or imagine an agency insisted on bulk discounts, you’d know better than to agree to it, because services are not subject to the rules of economies of scale.

All this can be confusing and overwhelming. So here are a few very basic legal concepts that may help you understand why translation is not a commodity good and gain a little perspective on how to exercise your rights.

Sources of Law

There are two variables that will determine the sources of applicable law in your translation contracts:

1. Legal Tradition:

Regardless of where you are on the planet, the legal world is divided into two parts: common law and continental law (aka civil law) countries. If you are in the US, UK or former British colonies, you are most likely under some form of common law. If you are in Continental Europe, Latin America, former French or Spanish colonies, you are most likely under a civil law system. If you are in Japan, for example, you are under a civil law system with some common law elements (aka mixed). Roughly half of the world is under common law and the other half under civil law or hybrid systems like those of Japan or Brazil.

What does this mean to translators?

I am oversimplifying this a bit, but what it basically means is that if you are in a common law country, your main source of contract law will be legal precedent and if you are in a civil law country, your main source of contract law will be some form of Civil and/or Commercial Code. Although the laws that govern contracts under each tradition are very similar and overlap, there are important practical differences that affect how contracts are drafted in the first place and how certain concepts will be phrased. Civil law contracts can be shorter because they incorporate the Codes by reference, whereas common law contracts may be longer because lawyers try to cover all possible eventualities in a contract. Hence, translation NDAs get longer and longer as agencies expand their businesses across borders. But even in civil law countries, contracts are getting longer as international business relations become more complex. However, freedom of contract is a principle that will be upheld under both systems, what will change is how that principle is interpreted or how willing the courts will be to help you out if you sign something you probably shouldn’t have signed. So before signing you need to know what law governs your contract (yours or that of your client) and what your options are if things go sour. There is no single right answer to this. It depends on where you are in the world.

2. The type of contract we are dealing with:

The contract pie can be divided into three: contracts for the sale of real estate, contracts for the sale of services, and contracts for the sale of goods. Real estate and services are subject to the common law versus civil law conundrum explained above. However, contracts for the sale of goods are governed internationally under the US Uniform Commercial Code (in the US or when working with clients in the US in contracts governed by US law) and the United Nations Convention on Contracts for the International Sale of Goods, and other applicable laws. You will not find “translation” in the UN Convention, for example, because translation is not a “good”. The reason for this is that goods require manufacture or production, and both terms are legally understood by the Convention to require the use of raw materials or components for making something. Of course, “to produce” is also understood in ordinary language as causing something (to produce a result or a play, for example), but that interpretation is inapplicable to the Convention. Lastly, in article 3(2), the Convention explicitly excludes the parties who furnish labor or other services.

Legal Logic Unraveled

Lawyers like to classify everything and fit the world into the categories we create. When we get it right, it makes everybody’s life a lot simpler; when we get it wrong, we end up in court. If something does not fit into one of our categories, then it has to fit into one of the others. Sometimes, when such classifications are extremely complicated, we even come up with “residual categories” where we stick everything that does not fit neatly anywhere else (this is especially true of civil law countries). Thus, if translation is not legally construed as a “good” because it’s not manufactured or produced under the broadly accepted definition set forth in the Convention (or similar sources of law), then legal logic dictates it has to fit into one of the other two: real estate or service. Translation is obviously not real estate, either. Therefore, translation is a service. Of course, I’m once again oversimplifying this, but the point really is that translation is a service; except literary translation which is derivative intellectual work and therefore subject to intellectual property law, but that’s a whole other story.

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Understanding what translation is from a legal point of view is key to exercising your rights as a professional translator. So, wherever you are in the world, try to find out what system you’re in. Take a look at your applicable law. Talk to a lawyer in your area, some of us are actually pretty decent human beings and happy to help. But whatever you do, don’t believe people that equate translation to selling hot dogs, no matter how many times agencies refer to you as a “vendor.” And while we’re on the subject of vending, why not check out Steve Vitek’s post (which inspired my post) here?

The Creepy Spy Clause in Translation NDAs

spy

It seems the translation giants are at it again, exercising increasing power over the little guy while trying to conceal their abuse of contractual asymmetry behind the reservation of a “right”. The angle this time? “Reserving the right to scan your computer and carry on onsite checks of translators.” So official, yet so problematic.

Now, before I pour out my analysis, allow me to make a pertinent digression: As a very bright young lawyer/interpreter pointed out in the forum that inspired this post, I’m a lawyer and law professor in a country under the civil law tradition; therefore, my view may be biased by my own system and not everything I’m about to write in this post applies to all countries. However, as I replied to said bright young colleague, there are general principles of law recognized by most countries and that is what I will focus on here. So unless you are in the most backwards legal system on Earth, the following is likely to apply to your jurisdiction as well.

YOU CAN’T RESERVE RIGHTS YOU DON’T HAVE OVER OTHER PEOPLE’S PROPERTY

Your property is yours and you can waive rights over your property. For example, if you are a homeowner and you rent out or lease your home to someone, you waive certain rights to your tenant or lessee. However, nobody would have a right to enter your home and exercise property rights without your permission simply because you put a FOR RENT sign on your front lawn. Similarly, nobody can take control of your property (including your computer) simply because you are providing a service to them. Of course, property can be seized or confiscated by the government (including the judiciary) in some cases and countries, but that kind of control over your property is different and cannot be exercised by private persons without government authorization in most advanced legal systems.

Companies drafting clauses like the one in question are not technically “reserving a right” because they don’t have said right to begin with. What they are doing is asking you to waive some of your rights to them. The decision is yours. It should not be forced upon you as if you had no choice, as if the company had a right to such action, or as if this was a widespread practice in translation. Although onsite and computer checks are a widespread practice in other fields, translation is not one of them; and the reason for that has a lot to do with how the nature of our work differs from that of “vendors” or “contractors” in other areas. But that is a whole other story. Of course, there can be exceptions to all this, but I’m referring to the specific case of a freelance translator working from home/office for a big LSP that may even be located in a different country.

TRANSLATORS HAVE A RIGHT TO PRIVACY AND CONFIDENTIALITY

What’s the difference between privacy and confidentiality? Privacy is all about you and confidentiality is all about others.

You might have “things and stuff” on your computer you don’t want anyone to see: family photos and embarrassing videos of your failed attempts at volleyball when you accidentally broke your neighbor’s window (true story). Whatever it is, it’s PRIVATE. The right to privacy is a human right (and an individual element found in many Constitutions and legal systems) by which neither governments nor private individuals can poke their noses in your business -that includes the “things and stuff” on your computer. It is found, among other places, under Article 12 of the Universal Declaration of Human Rights: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

If you’re in the UK, I believe you can’t take privacy suits to court, but you can still protect your privacy under different torts and are protected by the ICO and the Data Protection Act of 1998; Freedom of Information Act of 2000; Privacy and Electronic Communications Regulations of 2003, among others. You should ask a local lawyer about this, though. If you’re in the US, I’m sorry to tell you The Man does not care much about your right to privacy when the government is the one doing the spying, but there are many precedents where individuals have been granted protection from private parties or corporations. Meanwhile, if you’re in Latin America, you’re likely to have strong constitutional protection of your privacy, especially if you’re in a country with a “constitutional bloc.” Wherever you are, chances are you have some form of protection and your local lawyers can advise you on your options.

Confidentiality, on the other hand, is construed in many (though not all) countries as limiting or restricting access to information you may hold that can affect others. In other words, while privacy is all about you, confidentially is all about other people, including your clients. And if the client proposing the creepy spy clause (Client B) is not your sole client and/or you have sensitive information on, about or belonging to other clients (Client A), you may be breaching Client A’s confidentiality by agreeing to Client B’s clause. So be careful and watch what you sign!

YOU CAN’T JUST PUT ANYTHING YOU WANT IN A CONTRACT

While contractual freedom is a general principle of law, it does not mean that you can put anything you want in a contract and then expect to enforce it. If I entered into a contract with a hit man to kill my noisy neighbor in exchange for $8 thousand and paid $4 thousand upfront, agreeing to pay the remaining $4 thousand when my neighbor’s dead, and then the hit man failed to kill my neighbor and return my deposit, there is no way on Earth I would be able to enforce that contract. Why? Because killing people is illegal. So I can draft the most nit-picky contract in the world, I’d still lose in court (and probably end up in jail for conspiracy to murder). See where I’m going with this? If the object of a clause violates the law, it is unenforceable. In some jurisdictions it will invalidate the entire agreement, in others just the clause, but the point is that if it is unlawful, courts won’t enforce it.

How do you know if the clause is unlawful in the jurisdiction in question? The easy way is to ask a lawyer or resort to a protection agency, such as the UK’s ICO or similar bodies. But if you’re lawyer-averse, then look under privacy, confidentiality, competition, real property or intellectual property laws in your country. Chances are you’ll find more than one argument to challenge such clauses in several of these laws (I can think of at least three in different laws in my country).

DOES THIS MEAN NDAs CAN’T INCLUDE CONFIDENTIALITY PROTECTION CLAUSES?

No, that’s not what this means at all. What this means is simply that there are more efficient and lawful ways of going about it. Why someone would chose the “creepy approach” to ensuring confidentiality is beyond me. But as translators, we don’t have to agree to these clauses –unless we’re hopelessly desperate to work for such companies, in which case we’re better off marketing ourselves more efficiently and trying to land better and not-so-creepy clients.