Derivative Works

 

A "derivative work" is a revision, modification, annotation, elaboration, or other change to an original work of authorship. Derivative works apply to things that are copyrightable. For copyright protection of a derivative work, the derivative work must have originality of its own. The original owner still owns the copyright in what they created. The creator of the derivative work only owns those new original things they added or changed.

In procurement the issue of derivative works is part of the discussion on ownership rights. For example if you hire someone to perform work for you, you want the work to be considered a work for hire so you own all rights in the work. To avoid claims by authors for the use of their original works, you may want them to assign the rights in the works. When you are buying or licensing something that’s copyrightable, such as software or documentation, frequently you want to have rights in any derivative works that you create and you want to be able to use the derivative works without having to go back to the owner each time to get their agreement to use the copyright item with your derivative work. You probably also want to avoid having to pay a license fee each time you use the copyrighted item in your derivative works. To do that you need to get a license to use the derivative works.

For example, if a Supplier sold product only in the US and had an operating manual written in English, that manual would be an original work. If you decided that you wanted to sell their product in a number of countries and did a translation of that manual into multiple languages, each translated version of the operating manual would be considered a derivative work.  If you wanted to sell the product along with the translated operating manual, you would still need a license to be able to do that.

 Negotiating the right to use derivative works will involve agreeing upon: 

1.     The type of license grant:

a.     Is it exclusive or non-exclusive?

b.     Is it for a limited geography or world-wide?

c.     Is it royalty bearing or paid up?

d.  Is it for a term or is it perpetual?

e.  Is the license irrevocable or may the licensor revoke the license

2.     The description of use:

•  Prepare and have prepared derivative works,
•   Use, have used the derivative works,
•   Execute, reproduce, transmit, and display the derivative works.
•  If the license is for software, whether it may be distributed in source or object code.
• The rights you have (transfer, distribute or sub-license

     3.     The type of license that will be used for sub-licensing.

     4.     The rights that may be granted to third parties.

     5.     Any agreed restrictions on use.