The continuing harmonisation of national legislations within the European context is causing most of the texts to be modified by simply contacting with other texts coming from different legal and rethorical cultures. This is particularly evident in multilingual contexts, such as European institutions and international organisations. This paper is intended to show how the phenomenon of globalisation and legal harmonisation, in multilingual settings, affects the creation of new texts in that they are becoming more and more hybrid and stardardised. We have taken as examples texts from different legal cultures, such as those coming from Spain, United Kingdom and the European Union. The context within which the analysis has been developed is that of industrial property law.
KEYWORDS: hybridism, standardisation, European texts, globalisation, industrial property.
e are currently in the middle of the process of European integration, no longer only of countries from the European map, but also the countries which from May 1, 2004 have become part of the new European space. Suffice to cite as an example of that integration process the discussion created in the whole of Europe as a result of the attempt, with not very good results so far, at the unification of European Private Law or the creation of a European Constitution.
It is precisely within such a context that the translation of legal and legal-administrative documents is seen to be greatly affected, and where the research we wish to reflect in this work is positioned. We propose, therefore, to answer one of the questions we had formulated at the outset of this investigation: in what way does the continuous harmonisation of distinct national legislations affect text creation or production? We have based our analysis on the compilation of a bilingual English-Spanish corpus of 40 original documents liable to be submitted to translation at any given time of the trademark registration process in three different settings, the Spanish, British and European legal contexts.
on many occasions the hybridism present in a text does not arise as a consequence of a process of translation.
About the basis of this corpus, and taking the parameter of the superstructure as reference point, we note the presence of certain characteristics common to them all. For reasons of space, we shall limit ourselves to identifying and explaining only two of these, which are the growing tendency towards standardisation of the documents, and the presence of a certain degree of hybridism understood as used by Schäffner and Adab (1995, 2001).
Carrying out a comparative analysis of original texts not only in a national setting but also in a supranational and international context has enabled us to observe certain characteristics, especially in the texts arising from the European context, which have turned out to be a mixture or hybridism of the conventions typical to one or to the various cultures that convene in supranational institutions as is the case of the European Union and, more particularly, in the OHIM, (Office for the Harmonisation of the Internal Market).
The documents that surface within the registration process of a EU trademark, in our case, do not constitute an exception. In general, the creation of texts in a multicultural and multilingual atmosphere, as is the case of the OHIM, may eventuate in texts whose structure is the result of the agreement or collaboration between the different members that make up this professional community. In this sense Schäffner & Adab (1995: 337) mention the following in speaking of textual hybridism "The context of production is also important. A source text may itself be a hybrid construct resulting from collaboration between members of different cultures (e.g. EU documents)". This fact carries special importance, especially if we take into account that the texts created within the European Union are regarded as original texts and not as translations.
We have become aware of the presence in the corpus of a certain degree of hybridism in certain documents created at the OHIM. Thus, for instance, the power or authority by which the action of a representative on behalf of the applicant is allowed is a document for which there exists no parallel in the British trademark system, among other reasons because such law makes it possible, moreover, for such authorization to be performed orally. This has made it possible for that institution to be led, at the time of creating this document, to adopt the conventions pertaining to an existing document in one of the legal cultures that form part of that institution. In this concrete case, we note that the textual conventions in the document from the Spanish trademark system had been taken as points of reference.
In light of the above, we do not consider the existence of hybrid texts as something that might be a shock for the members of a given target culture, among other reasons, because in the case of supranational institutions we understand that the traditional concept of a target culture, on which we shall dwell next, does not itself fit within this multicultural and multilingual context; except as the result of that continuous process of harmonisation of the diverse national legislations and, in general, of globalization, which entails, on some occasions, a standardisation of the documents: "The concept of the hybrid text seems useful as a tool for describing the transition stages in which many discourse norms interact and coexist as a result of growing internationalisation (Schäffner & Adab, 1995: 332)"
In accordance with what has been discussed so far, it is clear that on many occasions the hybridism present in a text does not arise as a consequence of a process of translation, but may have its cause in the continual globalization and internationalization of the market and of communications generally, and consequently, in the very contact between the different cultures. In this sense, we are in agreement with Schäffner & Adab (2001: 279) when they redefine the concept of hybrid text regarding it not only as the outcome of text production in a given cultural community, which tends to frequently entail the intersection of different cultures, while admitting that it can also be the result of the translation process.
In the corpus of texts within the European Union regarding the registration process of a trademark, the cases of hybridism we have found have their raison d'être precisely in this cultural contact produced in the trademark registration process, especially, though not exclusively, in the European context. We consider as valid, therefore, Pym's position (2001: 45) regarding the origin of hybrid texts when he affirms that hybridization arises in the production of original texts where various cultures overlap. That is to say, in a cultural context such as the European Union, the original texts are hybrid inasmuch as they constitute a blend of cultural and linguistic patterns.
This fact leads us to think that, in our particular context, hybrid texts fulfil distinct functions; fundamentally two, as we have indicated. The first is that of filling the document vacuum which exists in a given target culture. Thus, for instance, just as we have seen in the previous point, the authorization of industrial property agents in Spain does not have an equivalent text in the United Kingdom used in the same communicational situation. For this reason, we find that the essential function of such a text, within the OHIM, is to enable recipients of such a document in the United Kingdom to access it in their own tongue.
The second function which, in our opinion, is performed by hybrid texts within our particular analytical context, is the bridging two or more legal cultures through the normalization or standardisation of the text. Even if the same texts exist in both cultures, hybridism may be the result of this process of harmonization of different national legislations to which we have made reference earlier. Proof of it is that there exists a growing tendency, at least within the trademark registration process, toward the composition of bilingual and multilingual documents.
Therefore hybridism affects the textual and generic setting, but also the cultural setting, since we cannot forget that the very cultures of the diverse institutions that exist in the EU are themselves hybrid in nature. This notion of hybrid culture is outlined by other authors such as Tirkkonen-Condit (2001), applying it precisely to the European setting, even speaking of a Eurorhetoric which affects the text in all its rhetorical, lexical and even grammatical dimensions.
Finally, we would like to comment on an aspect of the work proposed by Schäffner and Adab, and that is, in our opinion and taking our analysis as point of reference, that the phenomenon of hybridism affects not solely and exclusively political, religious or social sciences texts, but likewise legal genres are affected by hybridism. These authors support their position by the fact that these texts are those representing greater rootedness in their respective cultures:
Various genres were dealt with in the response papers, mainly literary texts (Zauberga, Gommlich and Erdim, Snell-Hornby, Simon, Nouss), and also advertising texts (Zauberga, religious texts (Pym), political texts (Pym, Neubert, Tirkkonen-Condit, Zauberga), social science texts (Bond). The choice of the genres speaks for itself- all these genres are more intimately linked to their home cultures. (Schäffner, 2001: 293).
It is true that traditionally legal genres have been considered texts with very rigid structures and, perhaps, for this reason less liable to experiment any type of change; nevertheless, professional practice demonstrates that also these genres are not totally exempt from undergoing some type of evolution or change, in function of social needs and the communicational situation.
To conclude this section regarding hybridism we would like to highlight the lack of agreement on the part of the different authors cited when it comes to defining that concept with some authors even questioning its very existence (Snell-Hornby, 2001:36); we would also like to elaborate on how such a concept may be applied to diverse aspects of translation. That is to say, hybridism not only affects the terminological level, but also, and above all, the cultural, textual and syntactic setting (Neubert, 2001: 25; Simon, 2001: 45).
In our opinion, and after analysis of the textual conventions of the corpus documents, we can confirm the existence of this phenomenon of hybridism as a result of a new European textual culture; that is to say, in our opinion, the traditional concepts of culture of origin and target culture make way for a culture fundamentally characterized by influencing textual creation, which implies the confluence in a single communicative situation of an amalgam of textual conventions, as well as linguistic patterns and institutional norms.
Another point of our analysis is the tendency toward standardisation of the documents present in our corpus. Nevertheless, having analysed these documents, it has been observed that not all present the same degree of standardisation, but that it varies in function of the presence of certain internal and external factors.
In the first place, standardisation is determined by the fact that the content and even the format of the greater part of the documents is determined by the law itself; that is, it is the different legal instruments we have analysed at the start of our research that specify the information blocks and the sections that characterize these documents.
The first consequence derived from the above is that any change in national or community law will entail a change in the structural organization of the document itself. This is precisely what has happened in the Spanish legal system. The New Spanish Trademark Act (No. 17/2001 of 7 December 2001) which abrogates the old Law No. 32/1988 of 10 November 1988 intended to change not only in the layout of the document information, but also its wording. Let the application for registration itself or for trademark renovation serve as examples.
Secondly, the other factor that, in our judgement, greatly conditions the organization of information, its superstructure and format is the institutional weight of these documents. It must not be forgotten that, in their majority, with the exception of documents presented by the party or its representative, they are documents issued by the institution itself, be it the OEPM (Spanish Industrial Property Office), The Patent Office, the OHIM or the WIPO (World Intellectual Property Organisation). In this sense, it may be asserted that some of these institutions, as is the case of the United Kingdom Patent Office, have elaborated a guide, the so called Work's Manual published by the British Patent Office, in which certain aspects of the trademark registration process are described in greater depth, be it at the national, international or EU level. Such a manual includes model documents that serve as reference points not only for the institution itself, but also for the applicant or, given the case, the representative and above all the translator, as a basic tool for their decisions regarding the textual conventions existent in the British legal culture for this specific process.
To these two factors must be added also the presence of the Industrial Property Agent and the applicant as agents that at a certain moment may influence text creation with a greater or lesser degree of standardisation, following personal taste or preference, no less than the particular style of each of them.
The translator will consequently have to take these three factors into account, that is, the stipulations of the legislation, the recommendations and style sheets adopted by the various organizations and the personal taste and style of the Industrial Property Agents. Bhatia (1993) comments precisely on the importance of the analysis of the different genres and the restrictions imposed by given institutions or organizations, especially in certain professional communities:
A good genre analyst will next attempt to study the institutional context, including the system and/or methodology, in which the genre is used and the rules and conventions (linguistic, social, cultural, academic, professional) that govern the use of language in such institutional settings. [...]This becomes particularly important if the data is collected from a particular organization, which often imposes its own organizational constraints and pre-requisites for genre construction (Bhatia, 1993: 24).
The fact that the texts are shaped by the law regulating the contents and linguistic policy, as well as by the restrictions of the different issuing bodies leads us to think that that there exists for this specific process and as a consequence of that high degree of conventionalization a growing tendency towards standardisation of the documents, as a direct consequence, in our view, of the national legislations of the European Union becoming more and more similar.
Bearing in mind that we are dealing with an administrative process, independently of the context in which it takes place, we have no alternative than to describe, in general terms, the design and standardisation that take place in Spain,1 the United Kingdom and the European Union with respect to these documents. In the specific case of Spain, what really characterizes the administrative process is the scarcity of very standardised texts, such as forms. The design of their format tends to be left in hands of the interested parties themselves on the basis of those used in previous processes. There further exists a series of documents containing predictable information and other data the length of which may be unlimited, according to each particular case. A third type of document would consist of those whose structure is not at all predictable.
In the case of the United Kingdom, it is the Patent Office itself that develops the documents on the basis of the obligatory references stipulated by law. The format of the documents is identical in all processes relating to industrial property, with the exception, clearly, of the contents that vary in accordance with the registration of a trademark, a patent or an industrial design.
In the case of the European context, the European office itself is in charge of document design, following a series of internal norms for said design. At the same time, the content and structure of the same is repeated in all of them, though the length may vary in accordance with the communicative situation in each case.
To facilitate classification and understanding of the degree of standardisation in these documents we have developed, with reference to the types of data and administrative practice in general, a three-level scale characterizing each one in the following manner:
- Degree 1: this level would be the one representing the highest degree of standardisation, and in our corpus it would be represented by the standardised forms. These documents are characterized by having a format where information comes structured and separated by corresponding boxes or dividing lines. Such documents are elaborated by taskforces within the institutions themselves on the basis of what is stipulated in the various legal instruments. These legal instruments are fundamentally the Code established by the trademark Law No. 17/2001, and the International Trademark Law Treaty, signed in Geneva in 1995. We have regarded these kinds of factors influencing the format and structure of the document as external. Examples of documents belonging to this first degree include trademark registration applications in the four contexts, as well as the notices of opposition and counter-statements, in three cultural contexts, Spanish, British, and European.
- Degree 2: this level would correspond to the medium level of standardisation, by which is understood as a degree of standardisation that ensures that the text, without presenting the rigid format of a form, continues to keep a structure subject to certain conventions and its content is made up of predictable data and other data whose extent may vary, depending on the case. These conventions originate from the institutions that themselves elaborate style manuals, as is the case of the Work's Manual of the British Patent Office; or from the recommendations or circular letters that the offices themselves disseminate internally. We have called this type of conventions internal, insofar as it is the offices themselves who elaborate these patterns of style.
Nevertheless there exist also other conventions that are not internal in character, but external, and they are those issued by the legislations themselves. In this sense, we refer to those documents where current legislation determines the content or sections thereof, including on occasion even heading and closing text formulas, but does not determine either the order or the layout or the length of such information elements. We cite as examples of this type of document the statutory declarations, witness statements, exhibits or letters of consent. It is on this second level where the greater part of the documents that form our corpus are located.
- Degree 3: in this last level are encompassed those documents whose structure does not follow any kind of convention, either internal or external, and is therefore left completely to the decision of its issuer. We cite as a prototypical example of this level the authorization of the agent in his capacity as representative of the applicant. Such a document presents, as we have seen in the passage regarding document analysis, a typical superstructure which could be considered common on account of the information blocks it presents, yet its contents will always depend, not so much on the communicative situation, but on the agent himself who issues the authorization. Likely there will be as many ways of writing an authorization as there are Industrial Property Agents.
The results of our research as far as standardisation is concerned is presented in the following table:
Degree of standardisation
Examples of texts
Applications for registration, notices of opposition and counter-statements
statutory declarations, witness statements, exhibits, letters of consent and registration certificates
Authorisations of Industrial Property Agents
Table 1.- Degrees of Standardistaion
We would like to conclude this work with some reflections about the implications that the presence of these two elements, standardisation and hybridism, have for the translator and the translation of this type of document.
- The first of these is of a general character and makes reference to the importance of the creation of a bilingual text corpus, English-Spanish in our case, as a way to furnish the translator with a reference point that enables him to face the problems of terminology, phraseology and textual conventions presented by documents of trademark law in a clearer and more realistic manner, counting on an exhaustive knowledge of what the expectations are in the other culture.
- The compilation of this corpus of original texts has allowed us also to observe what the general tendencies in the evolution of texts are, inasmuch as the same text has been analysed but in three different contexts, Spanish, British and European.
- The concept of textual convention is not static, but dynamic; not even with legal texts, which have traditionally been characterized by a rigid structure and format, can we affirm the presence of fixed textual elements. Proof of it is the phenomenon of hybridization in which conventions typical of different legal cultures are found.
- The role of legislation and of the different professional communities is essential for setting the norms for style, content and format of trademark law texts, and will have repercussions on the strategies adopted by the translator. The latter will always have to be vigilant of any legislative change or any change within the corresponding supranational institutions.
- In view of the above, we may affirm that a European textual culture is emerging as a result of this process of harmonization of the diverse national legislations. Such a culture interacts with the legal cultures of the different member states and as a result of this interaction the phenomena of hybridization and standardisation arise.
1 In this respect, we cannot forget the Spanish Organic Law 30/1992, on Public Administrative Process (Ley 30/1992, de 26 de noviembre del Régimen Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común (BOE núm. 285, de 27 de noviembre; rectificado en BOE núm. 311, de 28 de diciembre y BOE núm. 23 de 27 de enero de 1993) (Spanish Official Gazette No. 285, of 27th November, amended in Spanish Official Gazette No. 311) where all aspects of administrative texts is regulated.
- Acuyo Verdejo, M.C. (2003). The Translation of Industrial Property Documents: Legal, Professional and Textual Aspects. Unpublished Ph.D. dissertation, University of Granada, Spain.
- Bhatia, V.K. (1993). Analysing Genre. Language Use in Professional Settings. Londres/Nueva York: Longman.
- Ley 30/1992, de 26 de noviembre del Régimen Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común (BOE núm. 285, de 27 de noviembre; rectificado en BOE núm. 311, de 28 de diciembre y BOE núm. 23 de 27 de enero de 1993)
- Ley 17/2001, de 7 de diciembre, de Marcas
- Pym, A.(2001). "Against praise of Hybridity". Across Languages and Cultures 2 (2): 195-207.
- Schäffner, C. and Beverly Adab (1995). "Translation as Intercultural Communication. Contact as Conflict". In Snell-Hornby, Jetmarová and Kaindl, K. (1995) Translation as Intercultural Communication, Selected Papers from The EST Congress, Prague,1995. Amsterdam: John Benjamins.
- _________. (2001). "Hybrid Texts and Translation". Across Languages and Cultures 2 (2): 167-181.
- Simon, S. (2001). "Cultural and Textual Hybridity". Across Languages and Cultures 2 (2): 217-227.
- Tirkkonen-Condit S. (2001). "EU Project Proposals as Hybrid Texts: Observations from a Finnish Research Project". Across Languages and Cultures 2 (2): 261-265.