Cassation Decisions

Copyright and Neighbouring Rights Protection – Rights of translators- CFN 44520- Vol 10

Artistic Printing Press -v.- Getahun Shibiru

Federal Supreme Court Cassation File No. 44520 (October 20, 2009)

Holding of the Court:

A person who has translated a book shall be considered an author and is entitled to compensation for moral and material damage.

Articles 2(2), 6(1) and 8 of Copyright and Neighbouring Rights Protection Proclamation No. 410/2004

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Cassation File No. 44520 Tikimt 10, 2002 E.C. (October 20, 2009) Vol 10

Federal Supreme Court Cassation Division Justice: Menberetsehai Tadesse, Hagos Woldu, Hirut Mellese,

Taffesse Yirga, Almaw Wolie

Petitioner: Artistic Printing Press

Respondent: Getahun Shibiru

Judgment

This case involves a claim for compensation based on Copyright and Neighboring Rights Protection Proclamation No. 410/2004. The case started at the Federal High Court and the current respondent Dr. Getahun Shibiru was the plaintiff. This court has found that the current petitioner and the respondent entered into an agreement on October 4, 2006 in which the current petitioner agreed to print 5,000 (five thousand) copies of an Amharic book titled “Yeteseberu Kinfoch” (Broken Wings). The book was a translation and the translator used a pen name – “Ritu’a Emlak”. As per the agreement, the current petitioner received half of the payment for the printing, Birr 14,929.50, and agreed to deliver the work within three weeks. Before the delivery of this work, it was discovered that a book titled “Yeteseberu Kinfoch” (Broken Wings) was made available in the market by two individuals who then became second and third defendants in the case presented to the Federal High Court. The plaintiff at the lower court (current respondent) claimed a compensation of Birr 160,079.50 for moral and material damage.

The Federal High Court examined the arguments and evidence of both sides and discharged the two individuals who were selling the book. It further decided that the current petitioner (Artistic Printing Press) is liable to pay moral and material damage to the current respondent. Displeased with this decision, the current petitioner appealed to the Federal Supreme Court. But the court confirmed the decision of the lower court.

Cassation petition is submitted to the Cassation Division of the Federal Supreme Court. This court called the current respondent based on the petition submitted on March 25, 2009 and heard the arguments of both parties. The major issue of the case was seen in light of Article 8 of Proclamation No. 410/2004. The issue examined by this court is whether moral rights, including compensation, apply to translation works.

The fact that the respondent translated the book and gave it to the petitioner to have it printed is not an issue. It was also proven in the lower courts that the books were being sold to the public before delivery was made to the respondent. The major argument raised by the petitioner was that since the respondent was merely a translator and not an author of the book, he should not have the right to claim compensation for moral and material damage. On the other hand, the respondent argued that his copyright is protected by law and that the decision made by the lower courts in his favor was appropriate.

The relevant law for this case is Proclamation No. 410/2004. The preamble of this proclamation recognizes the major role literary, artistic and similar creative works play in enhancing cultural, social, economic, scientific and technological development and the need to establish a conducive environment for such works by giving them legal protection. Literary works are among such creative works that are given legal recognition under the Proclamation. Authorship of a novel falls under this category, and the case at hand is related with this. Thus, the detailed provisions of this proclamation must be seen in order to decide whether the law gives recognition and protection to translation works.

The petitioner argued that the respondent’s work is not protected by law because the original idea of the book is not his, and that he only translated the English version of the book. This court thus observed the need to determine what constitutes an original and creative work in light of the provisions of the law. The word ‘author’ is defined in Article 2(2) of the Proclamation as the person who has intellectually created a work. It can be understood from this provision that a work would be recognized and be protected by the law when it is proven that it has been intellectually created. The requirements for getting legal protection are also listed under Article 6. The relevant provision for the case at hand is stated under Article 6(1) which states that the author of a work shall, irrespective of the quality of the work and the purpose, for which the work may have been created, be entitled to protection, for his work without any formality and upon its creation where it is original and corporeal.

It is obvious that the petitioner translated the book into Amharic so that the Amharic speaking society can read it. Language is deeply connected to the values and customs of a society. Thus, it can be understood that when a book is translated into a different language, these values and traditions of the society would be taken into consideration. The work of the respondent should be seen from this perspective. When the petitioner translated the book from English to Amharic, he has made an effort to customize the content of the book in such a way the society would be able to understand and relate it with its own values and customs. This involves intellectual inputs and competence. Therefore, it can be concluded that a translation work is a result of the intellect. Moreover, since the work is done in Amharic, it is different from the English version of the novel. This makes it an original and tangible work as per the requirement stated under Article 6(1). Therefore, the petitioner’s claim against the copyright protection accorded to the respondent’s translation does not have a legal ground. The decisions of the lower courts, thus, have no fundamental error of law.

Decree

1.The decision of the Federal High Court, File Number 54181 rendered on Ginbot 25, 2000 EC (June 2, 2008) and the decision of the Federal Supreme Court, File Number 39233 given on Megabit 7, 2001 EC (March 16, 2009) are affirmed in accordance with Article 348(1) of the Civil Procedure Code.

2.The court has not accepted the petition because it does not have legal ground.

3.The decision that the respondent is entitled to the moral and material compensation is appropriate.

Signatures of Five Justices

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