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Consider a scenario: Bob is an owner of a website.

Bob plans to stream the translation of a copyright-subject article on the website. Is permission from the copyright holder needed for Bob to stream share amongst the members of his website?

Additionally, the following facts may be relevant:

  1. The translation cannot be downloaded;
  2. the articles is automatically created during a scheduled time;
  3. the translation is only shared amongst members of the website.

Based on the above facts, is the above illegal?

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    The question isn't entirely clear. Why would being available for download, or not, have an impact on whether a particular act of copying is an infringement? Is the potential infringement you're asking about the streaming, the publishing online, or the making of the translation itself? Who made the translation? Who is making the translated material available for streaming online? Who are the people in the select group?
    – phoog
    Commented Nov 8, 2021 at 13:48
  • The right is not just to translate but also to perform
    – Trish
    Commented Nov 8, 2021 at 14:04
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    Often the word "streaming" is used to refer to the downloading of media in real time pursuant to a license authorized by the copyright holder for uses authorized in the license, which isn't infringing because the license holder gives permission to do so. This doesn't seem to be the kind of fact pattern that you are asking about. But it isn't clear from the question what fact pattern you are asking about. What is being streamed? By whom? To whom? What has been translated and by whom and with what permission or lack thereof? Why do you think that something steamed isn't available for download?
    – ohwilleke
    Commented Nov 8, 2021 at 18:00
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    Streaming implies "live" "data-just-in-time" transfer. It does not carry a general connotation of being lawful or authorised, and just as often means copyright-breaching.
    – user4657
    Commented Nov 8, 2021 at 21:20
  • I Think the question is perfectly clear, and I was planning to answer it shortly. What issues need clarification? Some details specified are not really relevant, but will not hinder giving a fact-based answer. I urge people to vote to reopen this. If anyone can specify what details are needed, perhaps they can be provided. Commented Nov 8, 2021 at 21:34

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The facts you describe are very likely an infringing derivative work which would provide a basis for a lawsuit against the person operating the website. But, nothing is certain, and these determinations are highly fact specific.

It is highly unlikely that the government would enforce a violation of copyright alleged in these circumstances criminally.

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In essence, this is no different to translating and publishing a book.

Imagine if all the not-in-English Harry Potter books were made and published without the original publisher's permission. Nonsense? Well, same applies to this question.

What kind of medium you use to deliver your translations is irrelevant.

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  • Where do you see books? Where do you see books in this hypo? It’s about articles. Outside of the U.S., and in most jurisdictions, an online published article will automatically be copyright protected. Therefore, having such a website Google Translated would equally be violative. And maybe it is. Indeed, I would argue it is. But if Google is doing it broad day light, then other competitors in the field should similarly left harmless.
    – kisspuska
    Commented Nov 9, 2021 at 7:00
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    @kisspuska Where do I say I see books? Ever heard of analogy?
    – Greendrake
    Commented Nov 9, 2021 at 8:31
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    @kisspuska why would it make a difference if the published material is a book or an article?
    – phoog
    Commented Nov 9, 2021 at 9:13
  • @phoog .html websites are articles in many cases and copyrighted in most of the world. Those can directly be translated by copy-pasting the hyperlink to there page, and Google creates a full translated copy of it. Books are less frequently published in .html. And Google has a desiccated feature to translate pages of websites as a whole. This hypo proposes no different operation for a website.
    – kisspuska
    Commented Nov 9, 2021 at 16:51
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    @kisspuska maybe. It's not at all clear to me what "members" of a website means, or more pertinently, what relationship exists between the members and the operator. This is, it seems, a critical element of the analysis. For example, if the website is selling memberships, with access to the translated material as a benefit of membership, then it seems unlikely to be comparable to the use of Google translate.
    – phoog
    Commented Nov 9, 2021 at 17:13
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Creating a translation of a work protected by copyright without permission is an act of infringement, unless the creation of the translation falls within an exception to copyright. It does not matter whether this is done by a human translator, or by a computer translation program. A program is only a tool, and it is the act of translation, not the means by which it is accomplished that is an infringement.

There is not enough information in the question to determine if an exception to copyright, such as fair use in the US, or fair dealing in the UK, or news reporting or personal use in much of the EU, would apply. That is a highly fact-based determination, and also depends on the (unstated) country of jurisdiction. So for purposes of discussion I will assume that no exception applies, which seems likely from the limited information in the question.

Since the translation is not lawfully made, distributing it is probably a further act of infringement. This is true whether it is distributed to a limited but sizable audience, or to the general public. It is true whether the distribution is via streaming technology, or by posting on a web site, or both. It is true whether downloads are facilitated, or an attempt is made to prevent them. Any form of distribution is equally an infringement. This is true whether a fee is charged or not, although charging a fee might increase the damages that would be awarded in a suit.

the question reads:

The translation cannot be downloaded;

This does not matter, but it also cannot be fully accurate. The provider can refrain from providing an easy method of downloading the content. The provider can take steps designed to block downloads of the content. But if the content is so distributed that it can be read, it is possible for the receiver to capture and store it. Even if the content is displayed only as an image, with no associated text file, that image can be captured, put through OCR, and stored.

Another answer says:

If Google Translate is legal in the country or countries where Bob would operate the website, this should be equally not violative.

But Google Translate is a tool. It is the purpose to which it is put that makes its use infringing or not infringing. Using Google Translate, or any other translation program, to translate a work not protected by copyright is not infringing. Using a translation program in a way that falls under an exception to copyright, such as fair use, fair dealing, (in some countries) personal use, or another exception, is not infringement. Using a translation program to translate an entire book and then publishing the translation commercially would clearly be infringement. Many purposes for which people use routinely use Google Translate are probably infringing, just as many works posted on the internet are clearly infringing. Copyright owners do not choose to sue every possible infringer, the time and expense would be prohibitive. That does not make such uses non-infringing, and it does not make similar uses non-infringing. "But others do it all the time!" is not a defense.

The question is tagged "innocent-infringement" but I do not see how that could apply. An innocent infringer is a person who had no reason to believe that his or her act was an act of infringement. Here the website operator knows that the original content is protected by copyright. S/he knows that the use made probably does not fall within fair use or any other exception to copyright. S/he knows that the content is being provided to more than "a small group of people" or "a family circle". I do not see how this can be classed as innocent infringement.

The above conclusions should be valid under the law of any country that adheres to the Berne Copyright convention or the closely related TRIPS Agreement . Below I cite specific provision of US law that would apply. The laws of other countries on these points are mostly similar.

Specific Provisions from US Law (Title 17)

Derivative Work

Definition of “derivative work” from 17 USC 101:

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.

Exclusive rights

17 USC 106 provides in relevant part:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

Fair Use

17 USC 106 provides in relevant part:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

(I do not quote the statutory factors for analyzing fair use, because they are not specifically mentioned in the answer.)

Innocent Infringement

17 USC 504 (c) (2) provides in relevant part:

... In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; ...

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  • Should the paragraph about innocent-infringement instead say "S/he knows that the use made probably does not fall within fair use"?
    – Brandin
    Commented Sep 2, 2022 at 8:47
  • @Brandin Typos corrected, thanks for the heads up. Commented Sep 2, 2022 at 12:42

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