A few things to note about derivative works

Derivative work is one of the popular works subject to copyright protection by intellectual property law in many countries. So, what is considered a derivative work? What should be kept in mind when establishing and protecting the copyright for these works?

Derivative work

Derivative works are works translated from one language to another language, adapted, modified, transformed, compiled, annotated, or selected.

Derivative work is formed on existing work, bearing the imprint of the original work.

In order to develop, derivative works must have a “root” to which they can adhere. The derivative work must bear the stamp of the work on which it is based, the public must associate the original work through the content of the derivative work.

Simply put, a derivative work is a work based on existing work.

The author of a derivative work must respect the moral rights of the original author. The original author here is the author of the original work on which the derivative work is based.

Consequently, the derivative work must have elements so that the public can recognize the original work in the new work, however, the derivative works still have new elements that distinguish them from the original work.

This means that if the derivative work does not have anything different from the original work, it is called a full-text copy, not a derivative.

Derivative works can be changed to have specific features, but the key elements still need to be consulted and agreed upon by the original author.

For example, when adapting a movie from a storybook, if the producer wants to change any of the characters in the story, they need the consent of the original author. Because as mentioned above, the moral rights of the author must be absolutely respected. Any act of editing without the consent of the original author can have severe consequences later.

Grounds for arising, establishing rights

A derivative work is protected in the same way as ordinary work. Derivative copyright, like original authorship, is an automatic right. This right arises as soon as the work is created, protected by law, without the need for registration.

The right to make derivative works is a right in economic rights. Authors of derivative works need approval from the original author to be able to deploy their work, except in a few cases where no remuneration or royalties are required as prescribed in intellectual property law.

Sanctions for copyright infringement of derivative works

In the case of a derivative work created without the consent of the original author, if the work does not fall within the exceptions set forth in the intellectual property law, the infringer may face administrative sanctions. The penalties vary among countries but for example, in Vietnam, the fine may be:

• From VND 5,000,000 to VND 10,000,000 (For organizations, this fine is increased by 2 times)
• Forced to remove copies of infringing works in electronic form, on the Internet, and in the digital environment.

However, in fact, there are many derivative works infringing on the digital environment without being “touched” by the law.

Indeed, one of the most obvious violations of derivative works is in the form of writing based on an existing novel. Netizens are often familiar with the name Fanfic (Fan fiction: Autobiography of fans).

Fanfic is a form in which the fan community makes works based on their favorite original work. This may be another ending for the original work, or an extension of that work, or create a past of some characters, etc.

Fanfic can sometimes stick very closely to the core of the original work, but at other times it can be extremely detached, even changing the basic elements of the original work.

Many of the above-mentioned derivative authors are composing on their own without consulting the original author, so isn’t that a copyright violation?

Theoretically, yes. However, in reality, not every original author will speak out on this issue.

It is important to understand first that the original author sues only if they feel that their rights have been violated. The first thing about the original author’s interests is economic benefits. For example, the fanfic mentioned above, most of them only exists in cyberspace, is shared in the community, not for profit, and does not exist in the business of buying and selling, so the original author does not really “suffer lost” economically with the issue of derivation. On the other hand, the original work can be promoted with such derivative works made for free.

Does that mean that the derivative work just needs to be free, so it won’t be processed?

The answer is no. As mentioned above, original authors will report infringement only if they feel their rights have been violated. If a derivative work “goes too far”, affecting the original work and the reputation of the original author, they can completely prosecute.

Furthermore, even if the derivative completely follows the moral of the original work but it got too successful, making a huge profit for the derivative authors without sharing some of that profit with the original author, you can be sure that the original author will sue.

While most will ignore unprofitable derivative cases, there will still be cases where a derivative author is accused of harming the content of the original work or the author’s reputation.

Therefore, to be on the safe side of a derivative work, make sure the original author knows and approves of the work. And so, the copyright for this derivative work can be normally protected.

AAA IPRIGHT – Global IP – Global Trademark Registration

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