Derivative Works: Definition, Copyright, and Legal Considerations

Are you interested in derivative works and the legal regulations that govern them? This article provides a clear definition of derivative works, clarifies the relationship between derivative works and the copyright of the original work, and highlights important legal considerations to help you avoid copyright infringement when creating or using this type of work.

What is a Derivative Work?

According to Clause 8, Article 4 of the 2005 Intellectual Property Law (amended and supplemented in 2022), a derivative work is defined as a new creative product based on one or more pre-existing works, expressed through forms such as: translation, adaptation, compilation, annotation, selection, editing, musical arrangement, or other transformative forms.

Based on this regulation, derivative works can be classified into several categories:

• Translated Works: Translations of the original work into another language, requiring fidelity to content without altering the original meaning.
• Adapted Works: Inspired by the content of the original but featuring substantial originality in thought or expression, offering new perspective and content.
• Compiled Works: Created by collecting, arranging, and selecting available materials into a new structure, usually with source citations.
• Annotated Works: Include commentary, analysis, or interpretations to clarify the original work’s content and meaning.
• Selected Works: Result from selecting and compiling several related works, often based on a specific theme or criterion, into a complete publication.
• Edited Works: Based on the original, with modifications in format or content to suit a new context or audience.
• Transformed Works: A work adapted from one genre to another (e.g., a novel turned into a film) that retains the core content but changes the method of presentation.

Key Characteristics of Derivative Works

Created from One or More Original Works

A derivative work is formed by editing, modifying, or developing an existing work. However, it must retain recognizable elements of the original, indicating a clear connection. Importantly, the creator must respect the moral rights of the original author—such as the right of attribution and the right to integrity—which are non-transferable.

Must Contain Original Elements

A derivative work is not a mere copy or mechanical transformation. It must bear the creator’s personal imprint through unique content, structure, or presentation.

Different Expression from the Original

Copyright protects the form of expression—not the idea—of a work. Thus, a legitimate derivative work must differ at least in expression from the original. Excessive similarity in form could result in it being deemed an unauthorized copy.

Copyright Arises Upon Creation

Like original works, derivative works are protected by copyright from the moment of creation, without requiring registration. However, protection applies only if the derivative does not infringe on the original author’s rights.

Note: Creating or using a derivative work requires the original author’s or copyright holder’s consent. Unauthorized use may constitute infringement—except in limited exceptions such as adaptations for the blind under legal provisions.

Types of Derivative Works

• Translations: Creative efforts in rendering the original meaning into another language, maintaining accuracy while reflecting linguistic nuances.
• Adaptations: Reimagining stories or content with new approaches or contexts, often adding distinct creative insights.
• Transformations: Changing the medium (e.g., literature to film) while preserving the core content and adjusting the format.
• Edits: Revising or reorganizing original material to create a new version, possibly for a different format, purpose, or audience—often requiring permission and potentially involving remuneration.
• Compilations: Systematic organization of selected sources into a new, comprehensive work. Authors must cite sources and ensure accuracy, such as in dictionaries or textbooks.
• Annotations: Detailed commentary or interpretations to provide deeper understanding of the original work.
• Selections: Curated collections of existing works, organized by theme, genre, or era, such as poetry anthologies or classic songbooks.

Copyright Protection for Derivative Works

A derivative work is protected by law only if it meets all of the following conditions:

Does Not Infringe the Original Author’s Rights

As per Clause 2, Article 14 of the Intellectual Property Law (amended 2009), a derivative work will not be protected if it infringes upon or adversely affects the original creator’s rights.

Eligible original works may include:

• Literary, scientific, or educational materials
• Lectures, speeches
• Journalistic works
• Musical works
• Theatrical works
• Films and similar formats
• Visual and applied art
• Photographic works
• Architectural designs
• Maps and technical diagrams
• Folk literature and art
• Computer programs and databases

Must Be Created by the Author Themselves

As stated in Clause 3, Article 14, the derivative must be the result of the author’s own intellectual effort and not a copy from other sources.

Requires Consent from the Original Rights Holder

According to Article 28 of the IP Law, using an original work to create a derivative requires permission from the original rights holder. Without it, the act may constitute infringement—unless an exception applies (see Articles 25 and 26).

Must Contain Originality and Distinctive Characteristics

Derivative works must introduce creative elements—whether in content or form—different from the original. Personal creativity is essential for copyright protection.

Copyright Registration for Derivative Works

Application Dossier

As per Article 50 of Consolidated Document No. 11/VBHN-VPQH on Intellectual Property Law, a copyright registration file must include:

• Application form (in Vietnamese) with full details of the applicant, author, owner, and a brief description of the work. For derivative works, specify the original and legal basis for use. The form must be signed by the authorized person.
• Two copies of the work or fixed version (for related rights).
• Power of attorney (if the applicant is not the rights holder).
• Documents proving ownership (contracts, assignments, inheritance, etc.).
• Agreement from co-authors, if applicable.
• Agreement from co-owners, if applicable.

Registration Procedure

According to Article 38 of Decree 17/2023/ND-CP and Decision 3684/QD-BVHTTDL (December 27, 2022), the process includes:

Step 1: Submit the Application

Applicants may submit directly or authorize a representative to send the file to the Copyright Office of Vietnam or its branches in Ho Chi Minh City and Da Nang. Foreign individuals/entities may use the online public service portal (Level 4) or a licensed service provider in Vietnam.

Step 2: Receive Results

Within 15 working days of receiving a valid application, the Copyright Office will issue a Certificate of Copyright or Related Rights. If rejected, an official written explanation must be provided.

Conclusion

Derivative works are a vital part of today’s creative landscape, but using, adapting, or distributing such works requires strict compliance with copyright law. To protect your rights and minimize legal risks, individuals and organizations should seek support from experienced copyright professionals. With years of expertise in rights management and protection, BHMEDIA is your trusted partner for legal advice, licensing, registration, and digital content distribution related to derivative works.