Derivative works are automatically copyrighted without the requirement of being registered with the National Office of Intellectual Property.
However, in practice, many authors and owners still proceed to register for a protection title, as it is an important document when a dispute regarding copyright arises.
The copyright of derivative works are protected by Moral rights and Economic rights.
It is essential to determine which category your derivative work falls under before applying for copyright protection.
Classification of derivative works
The Law on Intellectual Property provides no definition of derivative works but merely lists the types considered as derivative works, which are translations, adaptations, modifications, transformations, compilations, annotations, and collections.
It can be understood that a derivative work is created based on the original work, containing certain creativity of the derivative author.
Works of which the language is converted while the original content remains unaltered.
For example: First News Company translated ‘How to win friends & influence people’ (1936) by Dale Carnegie to ‘Dac Nhan Tam’ in Vietnam.
Works created based on details and characters of the original piece.
For example: L.H.O.O.Q. (1919) by Marcel Duchamp raised a lot of controversy over the legal value of derivative works. This is an adaptation.
Works which modify part of the content or form of the original work or are based on a part of the original work to create a new work.
For example: ‘Beauty and the Beast’ (1991) was modified from Gabrielle-Suzanne Barbot de Villeneuve’s original work by Jeanne-Marie Leprince de Beaumont
Works that change the forms of performance or expression of the original work.
For example: The Harry Potter novels by author J. K. Rowling were dramatized into films.
Works that gather and compile information and content of original works. Often these compilations provide assessment and comments regarding the original works.
For example: Popular Fiction by Women 1660-1730: An Anthology (1996) by Paula R. Backscheider and John J. Richetti.
Works that instruct and explain the contents of the original work
For example: The Applied New Testament Commentary (2007) by Thomas Hale and Stephen Thorson.
Collections of existing works.
For example: Best of Britain’s Got Talent.
Article 4 of the 2005 Law on Intellectual Property, amended and supplemented in 2009
Infringement of copyright of original works
Creating derivative works without the consent from authors and copyright owners violates copyright (except for cases of researching, teaching, charity purposes, etc.)
It is actually rather difficult to classify derivative works.
Derivative works are only protected if they do not harm the copyright of the original work or affect its integrity.
Protecting the integrity of the original work is understood as not to mutilate, distort, exploit, or repair the work.
However, derivative works often contain certain changes in how they are presented. Changes may be made to their contents, characters, or evolution compared to the original work, especially for adaptations, transformations, or translations.
For example: writing lyrics for symphonic works can be considered to be detrimental to the original work since it affects the integrity of the work.
Adaptations and modifications created by the creativity of the author that are different from the original work can be considered as an independent work without violation.
For example: Author Wu Cheng’en wrote ‘Journey to the West’ (16th Century), using Buddhist materials and characters and other real events to create an independent text.
Article 4, 14, 25, 28 of the 2005 Law on Intellectual Property, amended and supplemented in 2009
Derivative works of computer programs, mobile applications, and websites
Computer programs, mobile applications, and websites are permitted to be protected under copyright.
Creating derivative works of computer programs, mobile applications, and websites is easily considered as an act of violation to copyright despite the lack of clear provisions.
Additionally, it is often difficult to prove how the source code of one product is linked to the creation of another. Therefore, applying for the protection of derivative works is rather challenging for computer software, mobile applications, and websites.
Clause 1 Article 25 of the 2005 Law on Intellectual Property, amended and supplemented in 2009
How to effectively protect derivative works
The best and most effective way to protect the rights of derivative works and to avoid disputes with authors of original works is to ask for permission or pay royalties when creating derivative works.
In complex cases, businesses may choose to seek professional advice in order to determine the copyright of derivative works. Businesses may also seek legal advice in registering copyright protection, negotiations, drafting contracts to rent copyright license, and providing analysis in case of disputes, etc.
Article 14, 19, and 21 of the 2005 Law on Intellectual Property, amended and supplemented in 2009
PLF is the Organization of Industrial Property Representation in Vietnam – an entity authorized by the National Office of Intellectual Property to act on behalf of individuals and enterprises to establish and enforce intellectual property rights.