0.2 The scope of copyright law  (Page 5/10)

In some countries, joint authorship only arises when each author’s contribution cannot be separated and commercially exploited independently of the work as a whole. For instance, Japanese legislation defines joint works as works that are “created by two or more persons in which the contribution of each person cannot be separately exploited.” If the works can be separated -- for instance, when one author contributes the music and another the lyrics for a song -- each contributor is typically given an independent copyright in his or her contribution. In other countries, like the United States, it is necessary that each of the contributors intend that the others should become joint authors.

In short, the rules on this issue vary substantially by country. In all countries, however, it is possible for two or more people to share a copyright.

Derivative works

Derivative works consist of adaptations or modifications of preexisting works. Common examples include abridgments or motion-picture adaptations of novels. The Berne Convention does not explicitly refer to derivative works. Instead, it lists certain uses of copyrighted works for which member countries must provide copyright protection. Specifically, the Berne Convention Article 2, Section 3 states:  “Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright of the original work.”  This provision is incorporated into the TRIPS Agreement.

Although this standard protects specific types of derivative works, it does not specify how different a derivative work must be from the original in order to merit copyright protection. As a result, it is often unclear how much originality is required to obtain a new copyright. Suppose, for example, a sculptor creates a scale model of Rodin's famous "Tinker" -- which, because of its age -- has fallen into the public domain. How much different from the original sculpture must the scale model be in order to secure copyright protection? Courts struggle with this issue -- and have produced inconsistent decisions.

What if the original work from used to derivative work has not fallen into the public domain, and the maker of the derivative works fails to get a license from the holder of the copyright in the original? In some countries, like the United States, the unauthorized derivative work does not get any copyright protection. In other countries, like the Netherlands and France, the unauthorized derivative work is protected. This does not mean that the creator of the derivative work is free to make and sell copies of his creation. Rather, it means that other people (including the owner of the copyright in the original work) must obtain the permission of the creator of the derivative work before making or distributing copies of the derivative work.

Collective works and compilations

Compilations are another example where a copyright may be obtained through the use and manipulation of preexisting works. Compilations are works formed by assembling, selecting, or rearranging preexisting works such that the result becomes an original work by the compiler. Collective works represent a specific type of compilation in which a number of separate and independent contributions are assembled into one work. A collective work, then, is a work by two or more authors that is not cohesive enough to qualify as a joint work on its own. Article 2, Section 5 of the Berne Convention only requires the protection of collective works: 

“Collections of literary or artistic works such as encyclopedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations shall be protected as such, without prejudice to the copyright in each of the works forming part of such collections.”