English
Deutsch English Français Italiano
  • FAQs
  • Knowledge base
    • BASICS OF COPYRIGHT
    • Where... is the work used and which national law is applicable?
    • What... is a protected work?
    • Who... owns the copyright in the work?
    • Which... rights in the work are protected?
    • How... may other people use a work?
    • And... responsibility and sanctions?
    • Copyright and social media
  • Training
    • Training Offer
    • Case Studies
  • Advising
  • About
    • CCdigitallaw
    • Affiliation
    • Events
  • News Archive

  1. English
  2. Copyright
  3. 2. WHAT... is a protected work?
  4. 2.4 Derivative works
  • Basics of Copyright
  • 1. WHERE... is the work used and which national law is applicable?
  • 2. WHAT... is a protected work?
    • 2.1 Protected work
    • 2.2 Categories of work
    • 2.3 Works excluded from protection
    • 2.4 Derivative works
    • 2.5 Collections
    • 2.6 How long is a work protected?
  • 3. WHO... owns the copyright in the work?
  • 4. WHICH... rights in the work are protected?
  • 5. HOW... may other people use a work?
  • 5b. HOW ... can other people use a work? - Contractual licenses
  • 6. AND... responsibility and sanctions?
  • 7. Copyright and social media

2.4 Derivative works

Index To Consider FAQ

"Derivative works" are a special group of protected works. The term is somewhat confusing because it gives the impression that an original work is being re-used. However, this is not the case. Pursuant to Art. 3 para. 2 CopA, derivative works are "intellectual creations with an individual character that are based upon pre-existing works, whereby the individual character of the latter remains identifiable". Simply said, a derivative work basically exists when an existing work is edited or changed. One of the best and most well-known examples is Andy Warhol's Marilyn Monroe screen print.

A derivative work is protected by copyright as a work in its own right (Art. 3 para. 3 CopA) when it is an intellectual creation and has its own individual character. In the process, the creator of a derivative work may not just use the characteristics and features of the existing work but rather must give the derivative work an individual touch.

The Swiss Copyright Act mentions translations and adaptations as examples of derivative works in Art. 3 para. 2 CopA. This is not an exhaustive list. Even if it is not explicitly mentioned, the individual character must however exist here. In translations, the words and choice of style of the work usually give the required individuality.

However, in the case of translations, as mentioned in Art. 5 para. 2 CopA, the following must be noted: if these translations are works excluded from protection pursuant to Art. 5 para. 1 CopA (e.g. a translation of a law), then they are also not protected by copyright.

In the case of derivative works, it must be decided whether they involve basic changes without any creative quality (e.g. changing a colour photo to a black-and-white photo) or have an individual character (e.g. filming a book). The first case involves an alteration of the work (Art. 11 para. 1 (a) CopA). On the other hand, the second case involves a derivative work. However, the author's consent is required in both cases.

To Consider

Required consent

Pursuant to Art. 3 para. 4 CopA, the protection of the works used in the derivative work remains reserved. If the original work enjoys copyright protection, it does not lose this when a derivative work is created from it. This means that the consent of the author of the original work must be obtained to produce a derivative work.

Example: an assistant would like to revise old lecture notes of the lecturer and update them; they must obtain the lecturer's consent to do so.

This means that work users who want to use the derivative work need the consent of both the author of the original work and the author of the derivative work.

Example (related to the previous example): students want to scan the updated lecture notes and publish them on the Internet. Then they need to ask for the lecturer's and for the assistant's consent.


If they do not have the consent of the afore-mentioned people, the (original) author's right to decide whether, when and how the work may be altered, as specified in Art. 11 para. 1 (a) CopA, and the rights to use the work specified inArt. 10 CopA can be infringed, unless there is a case of private use.

FAQ

2.4-1 Is a revised new edition of a textbook a derivative work?

Yes, when the changes to the new edition can be considered new individual features.

2.4-2 Students develop a script from their lecture notes and want to publish this on the Internet. May they do so without further ado?

No, in this case, they should be careful. Although scientific results are not protected, refining the material, i.e. the manner in which the lecturer transmits knowledge in a lecture, can definitely fall under copyright protection when the work character is fulfilled in the process. If the lecture notes are then developed into a script in such a way that they adopt the structure and content of the lecture, such a script can therefore be seen as a derivative work. The lecturer's consent is required to produce the script and to use it (publication on the Internet).

Services

FAQ FAQs, developed from real cases, allow you to quickly find answers to everyday digital law questions.
Knowledge Base A detailed knowledge base provides you insights into various legal aspects, currently with a focus on copyright issues.
Training A vast choice of on- and offline trainings are available together with interactive case studies to work through.
Advising A team of legal experts with competences ranging from copyright to data protection and licensing agreements are available for your questions.

About


CCdigitallaw is a national Competence Center in Digital Law that supports Swiss Higher Education Institutions (students, academic and administrative staff) in dealing with legal questions related to the digitization process and the use of new media and technologies. To do so, the Center offers various services such as a detailed knowledge base, FAQs, a wide range of on- and offline training activities and an advising service.

Partners


CCdigitallaw has been created through a project funded by swissuniversities. The center is the result of a collaboration between the Università della Svizzera italiana (USI), University of Basel (UNIBAS), University of Neuchâtel (UNINE), University of Geneva (UNIGE), and the Conference of Swiss Libraries (CBU-KUB).

Contacts


The team of legal experts working for the Center will be more than happy to answer your questions personally, by e-mail, phone or chat.
  • e-mail: info@ccdigitallaw.ch
  • tel: +41586664930
Creative Commons License
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License

 swissuniversities.png

Disclaimer
de gb fr it

Cookies

This platform uses cookies for sessions, user support, analytics and user feedback. The session and user support cookies are necessary and cannot be disabled but you can opt out of the analytics and user feedback.
Analytics
User feedback