What would it be the legal requirements of a "Derivative Work" and "Compilation"?

[ggmarmolalioto]

US Copyright Law

(i) Permission of the Copyright´s Owner

A Derivative Work is built on pre-existence work (which may be owned by another party) and creates a new, separate work, owned by the new author but incorporating elements from the earlier work. If the use of elements from the earlier work is not authorized, it violates the exclusive rights to make the derivatives works.

Pursuant to Section 103 US Code, Title 17, the copyright owner need not grant the right to prepare Derivative Works (is not obligated to do so), once she does so the owner of the copyright to the Derivative Work is the author of that Derivative Work. This copyright in the Derivative Work is independent of the underlying copyright but extends only to the portions of the whole work created by the Derivative Work author.

In the other hand, in both Compilations and Collectives Works the authorship involves selecting and/or arranging material into a new, combined work. The collective work´s author holds the copyright to the expressive compilation -the selection and arrangements.

In contrast, if the work collects works of authorship by others authors with their permission, those original authors hold the copyright to their original works and control of those whose other than as part of the authorized collection or revision thereof.

Note: Some authors hold that the Copyright Act treats very differently "derivatives works" and "compilations" with respect to the " scope of exclusionary rights" saying that a copyright owner has the exclusive right to prohibit or authorize (i.e license) the preparation of derivatives works (Pursuant to 17 USC & 106 (1) (2) (3)). And in other hand, the copyright owner does not, however, have an exclusive right to prohibit or authorize the preparation of "compilations or non-creative arrangements of works", since as stated above according to section 106 (1) (2) and (3) mention only derivative works, but not collective works or other type of compilations.

(ii) Substantial protected material copied from pre-existing work-Infringing work: A work cannot be a derivative work unless it has substantially copied protected material from prior work. That´s to say, a work will not be a derivative work unless it is also an infringing work because of the material copied from the pre-existing work.

(Literal copying of a significant portion of "source code" is not always sufficient to establish that a second work is a derivative work of an original program since copyright protection does not always extend to all portions of a program´s code. As stated in (ii) the source code material copied must be protectable under Copyright Law

(iii) The material copied must be subject to copyright protection: If a subsequent work copies material from a pre-existing work that is not subject to copyright protection, then that subsequent work cannot be a derivative work of the pre-existing work.

(iv) Literal and Non-Literal Copying. A "work" comes to a derivative work by copying the structure, sequence, and organization of another work.

Argentina Copyright Law

(i), (ii), (iii) and (iv) would be applicable under Argentina Copyright Law.

In another hand, the sine qua non condition to create (i) Derivatives Works by Modifications, (ii) Derivatives Works by Incorporation, (ii.a) "Composite Works or Compilations of Copyrighted Works" (ii.b) "Composite Works or Compilations of Data/Materials Non-Copyrightable Works" is the authorization of the author of the originative work.

Pharsed in other way, regardless of the type of work (derivative by modifications or by incorporations), to create a second work based in a prior work it must exist the copyright´s owner permission.