Recorded Renditions, Intellectual Property, Some Interpreters’ Great Contributions, and Some Unfortunate Ones.
December 22, 2022 § 3 Comments
When it was announced that Zoom had added a function to automatically record the interpreter’s rendition without prior notice, consent, or agreement on royalties, I originally decided not to write on this issue as it seemed in good and able hands who understand the implications, have the “know how” to address the needed changes, and can clearly communicate our professional needs to the platforms and others. My view has not changed, but I jumped in due to some remarks I have seen in social media and elsewhere. To contribute to the better understanding of the problem by many of our colleagues, I decided to encapsule the current situation in three main points: (1) What is happening; (2) What is protected; and (3) What needs to happen (and in fact is already happening).
- What is Happening. A couple of months ago Zoom introduced a new function that allows the recording of everything said during a meeting (or conference) including the interpretation of the original speech. This is done automatically, and lets the host of a recorded event go back to the video and toggle between the original sound and its interpretations into other languages. These recorded renditions remain available as a separate audio, leaving the host with the option to widely share the interpreters’ rendition without them even knowing. Notice, consent, and a royalty agreement are not needed to “benefit” from this function, leaving the interpreters, real owners of the interpretation, in a vulnerable position.
- What is protected. An interpretation is the product of an intellectual task protected by International Law as a property right. Human progress and evolution need the intellectual contribution of scientists, engineers, artists, and other individuals who create something of value. Such creations are considered intellectual property and include patents, trademarks, and copyrights, which include the work product of interpreters and translators. These rights are protected by (A) International Conventions, such as the Universal Copyright Convention, adopted in Geneva in 1952, and the Berne Convention for the Protection of Literary and Artistic Works of 1886 (amended in 1979); (B) Bilateral Agreements between sovereign nations, such as trade agreements which often include provisions, and even entire sections dedicated to the protection of Intellectual Property Rights; and (C) Domestic Legislation applicable to all activities within a country, as it is the case of Article 1, Section 8, Clause 8 of the United States Constitution which gives Congress the power to “promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” And its secondary law: The Copyright Act of 1976 (Title 17 USC). Therefore, in most countries in the world, a rendition by an interpreter is considered their property and protected as copyright. This means that a rendition cannot be legally reproduced or shared by anybody, unless the interpreter, who owns the interpretation, agrees and consents to it; and even in this case, it can only be reproduced according to the limitations set by the interpreter (how many times, in what market, by what means, and for what compensation). The agreement to record and replay a rendition must include a compensation provision establishing amount to be paid and form of payment to the interpreter: a percentage as royalties, a lump sum before recording, or a donation of the royalties by the interpreter when they consider it appropriate (charity work, research, education, religious, etc.)
- What needs to happen. It is clear that Zoom (and perhaps other platforms when catching up) incorporated this function to its platform to make it more attractive to its users and consumers. The idea was to solve a problem: How to reach those individuals watching a recorded event, after its original broadcast, who do not share the speaker’s language. Zoom learned in the past that the platform was more competitive when it reached a worldwide audience, regardless of language limitations. They tried to remove the language barrier by launching their original interpretation function. Later, the listened to their customer’s needs and to the interpreters’ expert feedback and improved the functionality several times. No doubt the results pleased them. They noticed how their competitors also made those changes to remain viable in the market. Unless Zoom acted out of character, or there is an anomaly I am not aware of, it is obvious to me that they never considered breaking the intellectual property laws. They meant no harm to their clients or to the interpreter community.
From the interpreters’ perspective the solution does not seem complicated. A toggle button permitting activate and deactivate the recording function would bring them in compliance with the law, but changes to a platform are not cheap and they require of more than a simple patch in the software. Everything I have heard to this point is encouraging. Some of the most serious professional associations that protect service quality and working conditions of conference interpreters, and some very able, capable, and knowledgeable colleagues have initiated an ongoing dialogue with the platform, and if the past is any indication of the future, in time this problem will be resolved.
What to do meanwhile? The answer is simple, we must continue to include in our contracts the same recording provision we have inserted for years, even when our concerns had to do with being recorded in the booth. Those who have never included such protection clause, and I must confess I find it amazing that interpreters agree to sign contracts lacking any agreement on recording their rendition, start now; insert a clause that clearly states that no recording shall be possible without all interpreters’ consent in writing, detailing all negotiated conditions, including the payment of royalties. There are model contracts you can use as a starting point, and I suggest you talk to an attorney. As for negotiating with the client or event organizer, read and learn about intellectual property, and use AIIC’s memorandum concerning the use of recordings of interpretations at conferences of 2016. It will give you plenty of arguments to negotiate with your clients. Litigation is expensive and lengthy, and should be kept as a last option, but these negotiations and a good contract will also act as a deterrent.
As a practical matter, I also suggest you do what I do: Take advantage of the dry run session to bring up the subject with all present; briefly explain what you need (that no recordings be shared without your consent and compensation) the risk of breaking Intellectual Property Law, and the message you are part of their team, and are trying to protect them by pointing out these scenarios before it is too late. Then, on the day of the event, let the host know that at the beginning, as they are explaining how to use the simultaneous interpretation function, you will post a message to all those attending, reminding them that sharing the recording of an interpretation violates the law, even if the platform technically lets you do it. It has always worked for me.
I cannot end this posting without mentioning that despite all great letters and conversations our professional associations and some of our distinguished colleagues have held with Zoom, directly and on social media, there are some unfortunate comments and postings by others that hurt our efforts because they perpetuate the stereotype that we are not really professionals. I am referring to some comments on line about the “damage to us as interpreters” the “burden it creates” or the threats to “bring a class action lawsuit” against Zoom.
I say to all of you, even though these platform changes can impact all interpreters who use Zoom as a tool, it is really conference interpreters who could see a quantifiable effect in their professional practice. Court interpreters’ rendition is part of a public record, and healthcare, school meetings, client-attorney virtual meetings, and other community interpreting services, could have a confidentiality/privilege problem, an unrelated issue to recording an interpretation in a conference, but their interpretation do not face the problem these posting deals with.
Professional communications, as the ones required in this case, should focus on the task and show the perspective of all involved. Complaining about how a recording will hurt you, and asking the platform to solve your problems and protect you because of “poor me” do not help one beat. Fighting words directed to the platform because now you “have to write a contract to protect you” do a disservice to the profession; Talking about class action lawsuits without knowing what is required, how complex, expensive and lengthy they are is just another way to show you are not acting like a professional well-informed in the business world. In conclusion, I am fine, I believe there has been progress that will eventually solve this issue, and the involvement of those participating in the dialogue has been very good.
Thanks so much for your well thought out advice, I have to confess that I don’t always include this since court interpretation is public domain, and in other cases the agency inserts this clause, but in others I simply haven’t done it. A word to the wise is sufficient. Thanks again!
Dear Georganne, thank you for your comments. I am glad to hear you will protect yourself in your contracts.
Agree! See you soon, Merry Christmas!