The PEN Translation Committee, recognizing the need for a set of guidelines to assist translators in their dealings with publishers, in 1981 drew up a Model Contract and explanatory notes in the hope they would prove useful to translators, both beginning and experienced, and over time become accepted practice in the profession. Subsequent United States Supreme Court decisions and revisions to the copyright law have changed the legal status of translators in a manner that should now be reflected in the basic contract.

Only 15 to 20 years ago, it was almost the exclusive practice of publishers to engage translators as "employees of a work made for hire"—a legal phrase that meant translators were given a one-time flat fee for their efforts and had no further interest in, or control over, their translations. A Supreme Court case decided in 1989 emphasized that while translations might be considered "works for hire" under the copyright law, they need not be: a translator of a work may be deemed an author in his or her own right, may receive further payment over the life of the copyright, and may have a degree of control over the future uses of the work. Indeed, even if a translation is considered a work for hire, a publisher may grant the translator an ongoing share of the income in one form or another, not excluding a royalty on all copies sold and a percentage of subsidiary rights income. Accordingly, the Model Contract now presents paragraphs for negotiating a translator's contract on either an authorial or work-for-hire basis.

Another legal change affecting the rights of translators is the Berne Convention Implementation Act of 1988, which went into effect on March 1, 1989, and amended U.S. copyright law. The Berne Convention is the oldest international treaty protecting intellectual property. It generally gives legal protection to the "moral rights" of authors (or droit moral as it is sometimes referred to), requiring that they receive proper credit for their efforts (the "paternity right") and that their creations not be distorted, mutilated, or modified in a manner that "would be prejudicial to [the author's] honor or reputation" (the "integrity right").

The United States made representations, however ambiguous, to the international community that it recognized the moral rights provision of the Berne Convention in protecting its own authors. Nevertheless, it remains unclear whether the new law in fact gives authors all the moral rights recognized in other countries. U.S. law in various forms had already protected against publishers' not giving proper credit to authors or mutilating their work (section 106 of the Copyright Act of 1976, the Lanham Act, etc.). The question of how much more protection, or what protection, exists under the new law is a matter of intense debate among American publishers and writers, and no one is certain how much additional protection has been granted. The entire issue of moral rights in the United States may be moot for translators, however, since under present U.S. copyright law such protection applies to visual works only; books are specifically excluded.

The essential point about droit moral is that it gives authors tremendous power over their works, which extends beyond the actual term of copyright. What is most germane to translation is the fact that Berne Convention authors are legally protected against any "distortion, mutilation, or other modification of the…work" that is perceived to be detrimental to the author's honor or reputation. In theory such protection gives authors sweeping control over the ultimate use of their work, especially as it extends to the translation process, and it is easy to see how this right might be abused, particularly in situations where author and translator disagree about the manner of expression. It allows authors to extend the concept of integrity to the expression of a work in a foreign language and as foreign nationals gives them rights ordinarily enjoyed by citizens. Unfortunately, the law as it is now written is ambiguous in its recognition of translators as authors in their own right. Although the Paris Revision (1971) of the Berne Convention recognized translations as original works and acknowledged that they should be "protected as original works without prejudice to the copyright in the original work," it failed to discriminate between the two senses of the term "original," author's original and translator's original. It grants translators "authorial" protection in principle, but denies them a much needed degree of autonomy by placing their work under the control of an author who has the "exclusive right of making and of authorizing the translation." In the matter of translation what the principle of moral rights gives with one hand, it takes away with the other.

The translator is, in the Translation Committee's view, a unique link between the original work and its audience in another language, whose status as a collaborator with the original author should be recognized by both the publisher and the book's readers. One of the principal ways in which this recognition can be gained is by according translation the full status of a literary endeavor, and this recognition should begin with the agreement made between the translator and publisher.

The Model Contract represents an ideal toward which the Committee feels all translators should strive. In today's marketplace, the provisions it contains are often realized only in part. We feel, however, that translators should attempt to obtain the inclusion of as many of them as possible. In order to give translators some idea of what to expect when entering into a contract with a publisher, the guidelines indicate those provisions we believe essential in any translation contract and those that are desirable but not yet common practice in the profession. Any contract between a translator and a publisher should represent the best possible arrangement for the translator, and we strongly urge translators to request the inclusion of all applicable provisions in the Model Contract. We hope that the explanatory remarks will provide translators with grounds on which to base their requests for inclusion of some or all of these provisions in their contracts with publishers.

The Model Contract and explanatory notes are based on the premise that the work in question is a work in copyright. For the translation of works in the public domain, the Committee feels that the translator should be treated as an author and should receive the same contractual terms and rights as would an author.