1. What are derivative works?
The Vietnamese laws do not specifically define what is a derivative work, but only list the types of derivative works. Derivative works include works translated from one language into another, or an adapted, modified, transformed, composite, annotated or selected work.
2. Conditions for derivative works to be protected by copyright
- Without prejudice to the copyright to works used to create these derivative works;
- Making the derivative work without permission from the author or copyright owner of the work used to make such derivative work, except in case of translating the work into braille or another language for the visually impaired;
- Having the unique imprint of the author of the derivative work.
They must be based on the original work, do not misrepresent the author’s intentions or infringe upon the property rights and moral rights of the author who created the original work, and are not contrary to fine customs, but must still express the creation to be protected independently.
3. Copyright in derivative works
Similar to original works, the derivative works are protected from the time of creation, and are automatic rights, protected by law without registration.
The author of the derivative work has the right to publish the work and the property rights to his work.
4. Example of the dispute on intellectual property right regarding derivative work and judicial practice in Vietnam
At this article, we referred to the Judgment on Intellectual Property Right dispute No. 774/2019/DSPT dated 03 September 2019. In this case, Company PT is the organization that assigned Mr. Le Phong L to draw the illustration so that it is the owner of the work E and Mr. L is the author of the expression form of the characters O, P, Q and R drawn by himself. Company PT is the owner of the work, so it has the right to make derivative works except modify, mutilate the representation of the characters O, P, Q and R or distort these works in any way that damages the honor and reputation of Mr. L.
However, from Ho Chi Minh City Court’s viewpoint, Company PT used the expression form of characters O, P, Q and R to perform from episode 79 onwards of the E comic series as well as perform other comic series E Art, E Science, with a different form of expression than that has been registered at the Copyright Office but Company PT has not stated which activity is in the activities of adaption, modification, transform, composition, annotation or selection.
Therefore, Ho Chi Minh City Court has no basis to consider the implementation of the episodes from volume 79 onwards of the E comic series as well as the implementation of the E Art, E Science as derivative works. Company PT has violated the moral rights of author Le Phong L.
In conclusion, it can be seen that to protect the rights of derivative works and mitigate disputes with the author of the original work is to obtain permission from the author and pay royalties to be able to make the derivative products.
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Writer: Tram Nguyen