Intellectual Property clause Thread poster: Antoine Emeriaud
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Hello everyone,
A new client asks me to sign an agreement before a proofreading task. I have a doubt about an Infringement of intellectual property clause... could you help?
8.1 The Parties agree that any and all material, documents, as well as Intellectual Property developed or otherwise generated as a result of the Assignment or in connection therewith (the "Result"), shall be transferred to the Client.
9.1 The Consultant warrants that the Result or t... See more Hello everyone,
A new client asks me to sign an agreement before a proofreading task. I have a doubt about an Infringement of intellectual property clause... could you help?
8.1 The Parties agree that any and all material, documents, as well as Intellectual Property developed or otherwise generated as a result of the Assignment or in connection therewith (the "Result"), shall be transferred to the Client.
9.1 The Consultant warrants that the Result or the use of such Result does not infringe any existing Intellectual Property.
I wonder if "the Result" can be interpreted as including the previous tasks (translation, editing). For example, if at the translation stage, an existing translation is used, could I, as the proofreader, be liable of IP infringement?
Thanks in advance! ▲ Collapse
| | | | | What about the source? | Mar 11, 2022 |
And what if the source itself is the IP of someone else (e.g. if the client asks you to translate a book without permission from the author)? Then the Result too would infringe IP.
I don't see how you can warrant that. The clause needs to be made more specific, e.g. by the addition of a clause to the effect that the client warrants that none of the material they provide infringes any IP.
| | | | Antoine Emeriaud 
France
Local time: 05:43
Member (2009)
English to French
TOPIC STARTER
Hi Thomas,
Thank you very much for your prompt reply!
The client explains that "the Result" means my input only, but I don’t understand it that way.
| | | | | They need to be specific | Mar 11, 2022 |
Then they should make that clear in the clause. An explanatory email they send doesn't change what the clause actually says. And even limiting it to 'your input' is not good enough. If you are translating something that infringes IP, then your input also most likely infringes IP.
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Mihai Badea (X)
Luxembourg
Local time: 05:43
English to Romanian
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| This is NOT legal advice | Mar 11, 2022 |
Let's say one year later, the client sends you an invoice, based on your infringing the contract (it is found the translation, which was provided by the client, was protected by copyright - unknown to you, the client said nothing about it).
Would you pay it?
Let's say you refuse.
Assuming the client is based in a country where the rule of law is respected, what is the likeliness a court would rule for an infrigment penalty?
Extendind the absurd... See more Let's say one year later, the client sends you an invoice, based on your infringing the contract (it is found the translation, which was provided by the client, was protected by copyright - unknown to you, the client said nothing about it).
Would you pay it?
Let's say you refuse.
Assuming the client is based in a country where the rule of law is respected, what is the likeliness a court would rule for an infrigment penalty?
Extendind the absurdity even more, do you think your fiscal authorities would agree to enforce the decision against you, and subtract the penalty amount from your bank account?
***
Let's be clear about something. The only professional way to deal with a legal issue - when there is one - is to hire a lawyer. You might want to do that, if you consider it necessary.
***
General remark:
Many translation agencies ask translators to sign some reasonable framework contracts that were designed by their lawyers. This is common practice, and if you read the contract carefully, you might feel a bit uncomfortable, but usually there is nothing to really worry about.
The clauses you mentioned are a bit wierd, considering the circumstances. Your anxiety seems justified.
If I were you - and this is not advice -, I would probably agree to sign it, because I would evaluate the risk of it being enforced against me as insignificant -, but I would not just let the client get away with it. I would communicate an increase of my rate in proportion to the caused anxiety.
One would normally expect, for such a job, to be potentially penalised exclusively for one's (missed) errors, if any. For instance, hypothetically, 0.1% for every error (non-repeated) would seem reasonable.
But any individual situation is different, and only the owner (of the situation) can take the right decision.
P.S. Do not avoid lawyers at all cost. There are situations where they can be worth a fortune (I mean, their work, their contribution). ▲ Collapse
| | | | Sadek_A
Local time: 07:43
English to Arabic
+ ...
There is clearly an intended purpose of "warrants the .... does not infringe any existing IP", which falls well under your control in the sense that you MAY (with or without their consent/knowledge) officially/inofficially subcontract (or seek external help for) the task, thereby rendered solely accountable for any such subcontractor/helper's IP under that specific clause.
*They're merely covering their a--, might have been burnt before* (1)
However, there could also be... See more There is clearly an intended purpose of "warrants the .... does not infringe any existing IP", which falls well under your control in the sense that you MAY (with or without their consent/knowledge) officially/inofficially subcontract (or seek external help for) the task, thereby rendered solely accountable for any such subcontractor/helper's IP under that specific clause.
*They're merely covering their a--, might have been burnt before* (1)
However, there could also be a twisted purpose that falls well beyond your control in the sense of rendering you accountable for any and all IP infringement(s), even those that were/are NOT related to your part of the job.
*They're framing you* (2)
So, you need to ask them a clear question and demand a clear, detailed answer!
If their answer is (1), then go ahead with the task (if you so wish and can definitely warrant as per the clause), but keep both soft & hard copies of their clear breakdown of that clause communicated to you IN WRITING.
If their answer is (2), bid them farewell. ▲ Collapse
| | | | expressisverbis
Portugal
Local time: 04:43
Member (2015)
English to Portuguese
+ ...
| Hiring a lawyer... | Mar 11, 2022 |
Mihai Badea wrote:
Let's be clear about something. The only professional way to deal with a legal issue - when there is one - is to hire a lawyer. You might want to do that, if you consider it necessary.
P.S. Do not avoid lawyers at all cost. There are situations where they can be worth a fortune (I mean, their work, their contribution).
... just to get an expert opinion about one or two contractual clauses?
In my humble opinion, not every legal matter requires the use of a lawyer. I would seek for one in any of these situations, such as adopting a child, starting a new/different business, filing a divorce, buying a property...
Lawyers can cost us a fortune unless the OP finds a "pro bono" lawyer or any other who can accept taking care of his "case"...
When I read a contract sent by a translation agency and I see one or more clauses aren't quite clear to me, I just reply to them by asking for an explanation/clarification.
If even so, I'm not 100% convinced with their answer, and I don't feel confortable, I don't waste my time on it, I simply decline the offer and I move on.
| | | | Sadek_A
Local time: 07:43
English to Arabic
+ ...
| One last note, just to cover everything | Mar 11, 2022 |
Bear in mind that the clause might as well, at a much less intent, encompass the software/equipment you are/may be using for that task.
Should that be the case, then demand that they provide you with the IP-cleared software/equipment they deem fit for the task.
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Antoine Emeriaud
France
Local time: 05:43
Member (2009)
English to French
TOPIC STARTER
Mihai Badea wrote:
I would communicate an increase of my rate in proportion to the caused anxiety.
I like that! 
Thank you everyone for your input! I will ask for a change in the clause, something that is immediately understandable to a non-lawyer. If what they want to say is "don’t input an existing translation", just write that.
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