If Copyright is Right, then how do we improve what is Left?

Under Open Scriptures, Rob makes the following thought provoking comment:

I’ve long wondered about the concept of copyrighting the Bible, as this seems to serve as a barrier to sharing the gospel. Plus since the authorship is truly of the Holy Spirit, can the work of the Holy Spirit be copywritten[sic]?

While not a lawyer and therefore not giving legal advice, Stan Gundry gives some informed insight into this issue in a comment under The production of the TNIV/NIV Bible–the Standard of Integrity.

I’ve wondered, too, about how copyright fits with a message that ultimately comes from God. For example, the whole idea of copyrighting the “original text” seems an impossible conundrum to me. If the text is understood to be quite accurate, then it captures what can’t be copyrighted–it being ancient and in the public domain. The opposite would also be true, but the text would hardly be worth anything–not being accurate. A well done analysis producing a highly accurate “original text” is at best a labor of love and an offering of worship. Perhaps the best the copyright holder may hope for is to lay claim to any errors proved out in the court of textual analysis. What can I say: may verdicts in the holder’s favor be few, but proved.

However, it seems to me that copyrighting a sacred text–a Bible–more than any other type of text, should serve the same purpose as intended by the U.S. Constitutional Copyright Clause (see the U.S. Constitution, Article I, Section 8, Clause 8). Or, as it is sometimes referred to, the Progress Clause. In other words, the purpose and intent of copyright is to promote progress. If there is anything that would promote progress more fully than any other endeavor, it is the translation of the message from God. Constitutional statement or not, I think that statement stands tall and true.

That gets a bit tricky, however. Can, through progress, the Bible be made better? Can it itself be improved?

That question, worded in that way, results in a quick, and I believe accurate, answer: “No! Of course not!” μὴ γένοιτο springs to mind.

However, when we refer to the Bible, we’re really referring to a translation. And translations can be improved. And this is where it gets a bit awkward. I think it’s important to realize the original meaning hasn’t changed–μὴ γένοιτο again. And I also think it’s important, though rather obvious, to observe that a specific translation hasn’t changed. The issue is not with either of those areas. So, what’s driving the desire for improvement? The issue is we’ve changed. And change will continue.

So, what needs improved? Do we seek to unchange us? Is it somehow that we’ve decayed, become less the image of God, less able to understand heavenly things (John 3)? Do we need to go back to the “good ‘ole days?” I don’t really think so (though I disagree with the evolutionist’s presupposition that we are inherently better than we once were.) Humans are inherently the progeny of fallen Adam. And that’s the way it has been almost since the beginning of time. So, I think the focus of real improvement lies with committing to improving the translation for the intended audience?

If the audience seeks a translation which bridges a mental gap between the original language and the modern one, then a translation needs to provide more than just a resulting text. It also needs to provide tools to help the reader bring the literal nature of that bridging text more fully into clear and natural English. Otherwise the uninformed user of the text, even with the best of intentions, will falter when dealing with all the intertwined ambiguities inherent in a literal text. They need a community (a body) of helpers (I’ll talk more of this in a moment). The way through this is to provide additional tools as well as educational helps to promote the needed skill. I suggest to Bible publishers that they market integrated sets of books which meet these needs. The idea is for the user to start with a literal translation and use the provided tools, packaged together, to develop a resulting clear and natural translation in their own language.

If the audience seeks a translation which is already rendered in clear and natural language, then my questions are:

  • How does one know the rendered text is in this clear and natural language?
  • Why did the translators decide to render the original in the way they did? In other words, what’s the connection between the “clear and natural” and the “original meaning.” Can we expose that and thereby not only enable a deeper understanding, but get past the so common misunderstanding that a non-literal translation “does not ‘say’ what the Greek says.”
  • Since language changes over time, is there a way, using modern technology, to promote continuous improvement?
  • How does one balance ‘continuous improvement’ (of translations) with the ongoing need of education (by teachers).

And, furthermore, I think with both these audiences, the following questions are appropriate:

  • Should continuous, broadly represented, respectful, translation-focused discussion be the norm and therefore the real solution?
  • Should such discussion be encouraged and therefore leveraged so that it feeds into new and better Bible translations?
  • How could that be done?

In any case, nothing is ever a true barrier to sharing the gospel. It seems that God has so ordered things such that the strongest of barriers only strengthen the message all the more.

The idea of a barrier to the gospel reminds me of an old story, probably apocryphal, of Caligula interrogating a common, ordinary man that refused to recant from preaching about Jesus. As the interrogation proceeded, Caligula became ever more frustrated. In anger and in clear finality he said something like, “Do you not fear me? Do you not know I have power over your life and death? What do you say? I have spoken. My name is Caligula.”

The lowly man replied–calmly and with great poise–“You are indeed powerful, most honorable Caligula. But I have no fear. Not of you or any other. For I do not fear death. You see, I have known death and now I live. I live because of Jesus. He has spoken my name. My name is Lazarus.”

Doesn’t the resurrection speak clearly of our yet future, final improvement?

So, as I’ve worked through this complex copyright issue, I’ve come to the conclusion that the seeming incongruity of copyrighting God’s Book is not the big issue. Nor is it a fundamental one.

The real issue is how do we improve translations?

16 thoughts on “If Copyright is Right, then how do we improve what is Left?

  1. CD-Host says:

    You are making this much more complicated than it it.

    Let A be any original work
    Let B be any derived work of A, where B’ denotes the changes. That is something that contains substantial content from A but is not identical to A.

    To distribute B I need a license to distribute from the copyright holder for A and B’.

    Now let A be in the public domain. Then everyone has a license for A. That doesn’t mean that everyone has a license for B’ however.

    A translation is a B and the Greek originals (at least for the TR, MR, Wescott-Hort…) are an A. The UBS originals are also an A but not in the public domain.

    Now taking a step back:
    A = “originals” of the bible
    B = reconstruction of the those originals in Greek (NA27)

    Again because there is a B’, A can be public domain while B is not. If they did a perfect job then there would be no B’ and hence A being in the public domain implies B being in the public domain. But the burden of proof is on copier to prove his text is derived from A and not B.

  2. Theophrastus says:

    CD-Host, you state:

    But the burden of proof is on copier to prove his text is derived from A and not B.

    In English-speaking countries, in criminal cases, defendants are presumed to be innocent until proven guilty. For this reason, we speak of an accused infringer rather than a copier. In a criminal copyright claim in the US, Canada, the UK, Ireland, Australia, and New Zealand, the burden is on the prosecution, not the defendant.

    Even in a civil action, the burden is on the plaintiff to establish infringement.

    In the case of NA27, it could be argued that a sufficient defense was to point out that the translators had made an independent evaluation of the source texts. Since most translations consider alternative source texts, this follows almost automatically.

    Furthermore, I just checked several English translations which are known to the German Bible Society. (I can prove they are known to the German Bible Society because it sells actually sells them!) None of the English Bible translations I checked cited NA27’s copyright on its copyright page. UBS3 dates to 1975 and NA26 dates to 1979. (For the purposes of copyright infringement, UBS4 and NA27 are principally the same as these earlier editions.) If your legal theory regarding English translations were correct, the copyright holders would have to explain their failure to enforce its copyright for 30 years. Under the doctrine of laches, claims of infringement would likely be unenforceable.

  3. CD-Host says:

    Theo —

    A preexisting work is an affirmative defense to a civil claim (I don’t know German law so I’ll just discuss US). The burden to prove the pre-existence is thus on the defense. This makes sense in an infringement claim: The defense who raises pre-existence would be throwing out the plaintiff’s copyright not just proving themselves not liable.

    As for laches I don’t know one way or the other. I’d have to see evidence non enforcement so far. I have an interlinear on my desk it has NA27 having been copyrighted by UBS: 1966, 68, 75, 83, 93. So at the very least they are filing pretty regularly as they minor adjustments (I assume). Also the free Greeks I usually see are: MT, TR, WH. So I guess the question to you is what evidence do you have that they have failed to enforce copyright?

    But regardless, the key is that laches is an entirely different defense than pre-existence. The whole post (and series of posts on other blogs) is about pre-existence issues.

  4. Theophrastus says:

    While you are correct that a pre-existing work is an affirmative defense, it is not the defense I suggest — the argument is that each English translation independently considers which variants to follow. The NRSV, for example, considered a certain set of variants. If I were to make a Bible that used the same variants that the NRSV used, I could be accused of infringing the NRSV’s copyright.

    The German Bible society sells, for example, the NRSV. I see that you have copies of the NRSV from your blog — you’ll notice no copyright acknowledgment is given, even though the Preface clearly states:

    For the New Testament the Committee has based its work on the most recent edition of The Greek New Testament, prepared by an interconfessional and international committee and published by the United Bible Societies (1966; 3rd ed. corrected, 1983; information concerning changes to be introduced into the critical apparatus of the forthcoming 4th edition was available to the Committee).

  5. Demas says:

    I am an Australian lawyer, however this is obviously not legal advice – I am just a dude on the interwebs after all. You want legal advice you have to give me money 🙂

    Looking at the NT, the original texts are obviously out of copyright, as are compilations of those texts published long ago by authors suitably dead. Key dates are 1923 for the US and 1955 for Australia – if it was published before 1923 by an author who died before 1955 it will be out of copyright in both countries. This varies from country to country – for the EU we would be looking at authors who died before 1939 for example.

    A modern compilation of the original texts would be, at least in Oz and I think in the US, sufficiently new and original and the result of knowledge and effort that it would be subject to copyright.

    Absent clear precedent, I would be reluctant to go with the analysis linked to above that “the critical texts as reconstructed by textual critics cannot be protected by enforceable copyrights” – there is more than ‘sweat equity’ in creating a critical text. A phone book does not require PhDs to compile into alphabetical order.

    Also, phone books do attract copyright in a number of countries including Australia and the EU (which includes Germany), which have specific protections of compilations and databases and whose courts didn’t follow the US’s reasoning in Feist v Rural.

    If you want a free Greek NT, employ a suitably qualified person or people to create one from the original materials and then release the results of their work under a Creative Commons license, just as if you want a free translation of you employ a suitably qualified translator. No different, really.

  6. CD-Host says:

    Hi Theo good morning.

    Again just for clarity, I’m sticking to America copyright law due to my ignorance of how it works in other countries. The laws in the USA are though that the derived work can assert its own copyright and doesn’t need to assert the copyright of underlying licensed products. So for example if I create a book consisting of 15 magazine articles (that I have properly licensed I can copyright the book I don’t need to even mention that the articles have a copyright.

    The reason is that American law has no notion of a “platonic original”. If you copy something you copy from a work (that is a physical book / datafile). The status of function original is what is important legally. So for example if I take a public domain book, change one word (as a trace) copyright it and then someone rereleases the book without permission I can sue them for the entire book. Their copy was from my derived.

    So assuming the National Council of Churches was duly licensed by UBS the status of the underlying greek plus variants used is clear:

    Underlying manuscripts are public domain
    UBS owns the compiled greek + list of all variants
    NCC (now Harpers Collins) owns the specific variants picked
    NCC/HC owns the translation of that greek text

  7. Theophrastus says:

    CD-Host, You are mistaken as a matter of law — would you accept Nimmer on Copyright as an authority here (you likely have access if you have a Lexis subscription)?

    If you do not, you can see counter-examples to your rule on the copyright pages of those books: The copyright page must cite the copyright of all works from which it is derived. Look in your library: You’ll notice that anthologies cite the copyright of each of its component submissions (sometimes through an “extended copyright page” at the end of the book; and that a translation of a contemporary work cites the copyright of the original work.

  8. Mike Sangrey says:

    All this talk about copyright is nice. However, how does one improve Bible translation? That’s the intent of copyright. It’s also the intent of the posting.

  9. CD-Host says:

    Sure I would accept Nimmer. Can you copy (perhaps to your blog) exactly what he is saying? Obviously a book doesn’t even have to have a copyright page at all, so this summary seems overly assertive.

    I just picked up a clear cut derived work that asserts its own copyright but not that of the parent work (same publisher hence I would assume not a license issue)

  10. Joe says:

    How does copyrigth law apply to a pastor or Sunday School teacher using a copyrighted translation in some public setting other than preaching/teaching…say an off campus discipleship training course?

  11. CD-Host says:

    Joe —

    Copyright law is pretty strict on public performance without permission. So for example the NLT gives explicit permission for up to 500 verses, the NIV 1000 verses, the Reformation Study Bible denies all permission (yes I am being serious check the copyright page), but the ESV has 1000 verses with a 50% limit (i.e. short books).

    If you are doing an off campus course and everyone owns a copy then everything becomes fair use and you are fine.

  12. Sidnwy Williams says:

    One very easy step to improving any of the Bible translations is this:
    1) Buy a Strong’s Exhaustive Concrdance to the Bible 1895.
    Note: Must be a edition with only 87 lines per page in Concordance. Later editions with more lines per page make adding notes impossible.
    2) Research all 50 definitions per word, in the Hebrew, and find the Majority Rule definition.
    3) This will define the remaining definitions as bogus.
    4) NTN has both “give” and “take” definitions; 1,000 to 1 ratio.
    5) Several words have both “come” and “go.” Use the Majority Definition.

  13. Sidnwy Williams says:

    For your consideration:

    Copyrights of Bible translations, from the original languages, prevent evil men from gaining fame from another man’s work. And, in the past, some have terribly corrupted what they copied.

  14. David Ker says:

    Yeek! I’ve just been spoken to by a Society.

    In general, we prefer that representatives of organizations identify themselves by name and official capacity. This helps prevent someone pretending to be someone else.

    Although the IP of the previous comment comes from the Netherlands, the website and email address are valid and registered to GBS.

    FYI, a more helpful link is probably the FAQ section: http://www.dbg.de/en/meta/service/rechte/foreign-rights.html

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