Laws in Translation

As a comparative law academic, I have had an interest in legal translation for some time.  I’m not alone.  In our overseas programs at Nagoya University, we teach students from East and Central Asia who have a keen interest in the workings of other legal systems in the region, including Japan. We would like to supply them with an accessible base of primary resources on which to ground their research projects. At present, we don’t.  We can’t, as a practical matter, because the source for such material, the market for legal translation, is broken at its foundation.  One of my idle dreams is that one day it might be fixed. The desiderata are plain enough, and simple to describe. To be useful as a base for exploring the law (as opposed to explaining it), I reckon that a reference archive based on translated material should have the following characteristics:

• Intelligibility Text should of course be readable (as opposed to unreadable), and terms of art should be consistent across multiple laws, so that texts can safely be read together.
• Coverage A critical mass of material must be available. The Civil Code is not of much practical use without the Code of Civil Procedure and supporting instruments.
• Currency If it is out of date, its academic value is substantially reduced, and its practical value vanishes almost entirely. If it is not known to be up-to-date, the vanishing happens much more quickly.
• Accessibility Bare text is nice, but a reference resource ought to be enriched with cross-references, indexes, links to relevant cases, the original text on which the translation is based.
• Sustainability  Isolated efforts are of limited utility.  There must be a sustained incentive to maintain the archive over time.

In an annoying confluence of market incentives, these criteria do not travel well together.  International law firms may have the superb in-house capabilities that they claim, but they are decidedly not in the business of disseminating information.  As for publishers, the large cost of achieving significant coverage means that the incentive to maintain and enhance accuracy and readability declines in proportion to the scope of laws translated by a given service.  As a result, no commercial product performs well on both of the first two criteria, and there is consequently little market incentive to move beyond them and attend to the remaining items in the list. So much for the invisible hand.

When markets fail, government can provide, of course, but a government itself is inevitably driven by well-focused interests (such as foreign investors) more than by wider communities (divorcing spouses, members of a foreign labor force, or, well, my students).  Bureaucratic initiatives tend to take on a life of their own, and without effective market signals, it is hard to measure how well real needs are actually being met.  In any case, barring special circumstances such as those obtaining within the EU, the problem of sustainability ever lurks in the background.

Unfortunately, these impediments to supply on terms truly attractive to the consumer are not limited to a single jurisdiction with particularly misguided policies; the same dismal logic applies everywhere (in a recent article, Carol Lawson provides an excellent and somewhat hopeful review of the status quo in Japan).  At the root of our discomfiture are, I think, two factors: the cookie-cutter application of copyright protection to this category of material; and a lack of adequate, recognized, and meaningful standards for legal translation (and of tools to apply them efficiently in editorial practice). The former raises an unnecessary barrier to entry. The latter saps value by aggravating agency problems, and raises risk for both suppliers and consumers of legal translations.

I first toyed with this problem a decade ago, in a fading conference paper now unknown to search engines (but still available through the kind offices of the Web Archive). At the time, I was preoccupied with the problem of barriers to entry and the dog-in-the-manger business strategies that are they foster, and this led me to think of the translation conundrum as an intractable, self-sustaining Gordian knot of conflicting interests, capable of resolution only through a sudden change in the rules of the game. Developments in subsequent years, in Japan and elsewhere, have taught me that both the optimism and the pessimism embedded in that view may have been misplaced. The emergence of standards, slow and uncertain though it be, may be our best hope of improvement over time.

To be clear, the objective is not freedom as in free beer.  Reducing the cost of individual statutory translations is less important than fostering an environment in which (a) scarce resources are not wasted in the competitive generation of identical content within private or protected containers; and (b) there is a reasonably clear and predictable relationship between quality (in terms of the list above) and cost. Resolving such problems are a common role for standards, both formal and informal.  It is not immediately clear how far voluntary standards can penetrate a complex, dispersed and often closed activity like the legal translation service sector — but one need not look far for cases in which an idea about standardization achieved acceptance on its merits and went on to have a significant impact on behavior in a similarly fragmented and dysfunctional market.  There is at least room for hope.

In 2006, as part of a Japanese government effort to improve the business environment (for that vocal group of foreign investors referred to above), an interdisciplinary research group in my own university led by Yoshiharu Matsuura and Katsuhiko Toyama released the first edition of a standard bilingual dictionary for legal translation (the SBD) to the Web. Aimed initially at easing the burden of the translation initiative on hard-pressed government officials charged with implementing it, the SBD has since gone through successive revisions, and recently found a new home on a web portal providing government-sponsored statutory translations. (This project is one of two major translation initiatives launched in the same period, the other being a funded drive to render a significant number of court decisions into English).

The benefits of the Standard Bilingual Dictionary are evident in new translations emerging in connection with the project. Other contributors to this space will have more to say about the technology and workflows underlying the SBD, and the roadmap for its future development. My personal concern is that it achieve its proper status, not only as a reference and foundation source for side products, but as a community standard. Paradoxically, restricting the licensing terms for distribution may be the simplest and most effective way of disseminating it as an industry standard.  A form of license requiring attribution to the SBD maintainers, and prohibiting modification of the content without permission, would give commercial actors an incentive to return feedback to the project.  I certainly hope that the leaders of the project will consider such a scheme, as it would help assure that their important efforts are not dissipated in a flurry of conflicting marketplace “improvements” affixed, one must assume, with more restrictive licensing policies.

There is certainly something to be said for making changes in the way that copyright applies to translated law more generally.  The peak demand for law in translation is the point of first enactment or revision. Given the limited pool of translator time available, once a translation is prepared and published, there is a case to be made for a compulsory licensing system, as a means of widening the channel of dissemination, while protecting the economic interest of translators and their sponsors.  The current regime, providing (in the case of Japan) for exclusive rights of reproduction for a period extending to fifty years from the death of the author (Japanese Copyright Act, section 51), really makes no sense in this field.  As a practical matter, we must depend on legislatures, of course, for core reform of this kind.  Alas, given the recent track record on copyright reform among influential legislative bodies in the United States and Europe, I fear that we may be in for a very long wait.  In the meantime, we can nonetheless move the game forward by adopting prudent licensing strategies for standards-based products that promise to move this important industry to the next level.

Frank Bennett is an Associate Professor in the Graduate School of Law at Nagoya University.

Vox PopulLII is edited by Judith Pratt