Unauthorized changes to translation breaches contract but not moral rights

On November 17, 2015 Justice Hamilton of the Superior Court of Quebec released his judgment in Desgagné v. Group Ville-Marie Litterature Inc., 2015 QCCS 5448 a copyright/breach of contract dispute involving the unauthorized modification of a translated book prepared by Bernard Desgagné.

Desgagné had entered into a contract with a publisher to prepare a translation of the book The Questions of Separatism. Desgagné failed to deliver a final product in a timely manner and once the translation was complete, the publisher had problems with it, and eventually asked another person to revise the text. This was done without Desgagné’s input or authorization.

When the translated book was released Desgagné noticed a number of changes made to the text, and brought this action. Desgagné alleged, among other things, that the publisher infringed his moral rights under the Copyright Act. Desgagné sought the destruction of the remaining copies of the book, asked that his name be removed from the book, and sought damages/costs totaling $60,000.

With respect to the Copyright allegations, the Court confirmed that the translation was a literary work that would attract copyright protection and therefore, would consider whether Desgagné’s moral rights (pursuant to section 28.2 of the Copyright Act) had been infringed. Section 28.2 states that you cannot deform, mutilate, or otherwise modify a copyrighted work in a manner that is prejudicial to the honour or reputation of the author.

The Court held that while the publisher did modify Desgagné’s work, there was no evidence of prejudice to his honour or reputation.

However, the Court did find that the changes made by the publisher to the translation were more than minor, and concluded that the publisher had a contractual obligation to consult with Desgagné about these changes before making them. As a result, the Court ordered the following: (i) that Desgagné be paid $5000 in damages; (ii) that any electronic version or future publication of the book remove Desgagné’s name; and (iii) that any currently published copies that are publically available or in reserve have a sticker placed on them to hide the phrase “translated from English by Bernard Desgagné”.

A copy of the decision (in French) can be found here.