DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY 

VISAKHAPATNAM, A. P., INDIA.  

 
 
PROJECT TITLE: 
PROTECTION OF COPYRIGHT ON DERIVATIVE WORK : PERSPECTIVES
OF U.S, INDIA & EU 
SUBJECT: 
INTELLECTUAL PROPERTY RIGHT
 
NAME OF THE FACULTY: 
ASST.PROF. P.SREE SUDHA
 
NAME OF THE STUDENT: 
SAHAL SHAJAHAN 
 
ROLL NO: 
18LLB131 
 
SEMESTER – V
SECTION – B 
 
 
 
 
 
 

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ACKNOWLEDGMENT: 
 
I am high1y indebted t0 my H0n’b1e IPR Asst.Pr0f. P.SREE SUDHA, f0r giving me a
w0nderfu1 0pp0rtunity t0 w0rk 0n the t0pic: “ Pr0tecti0n 0f C0pyright 0n Derivative w0rk:
Perspective 0f US, India & EU”, and it is because 0f her exce11ent kn0w1edge, experience and
guidance, this pr0ject is made with great interest and eff0rt. I w0u1d a1s0 take this as an
0pp0rtunity t0 thank my parents f0r their supp0rt at a11 times. I have n0 w0rds t0 express my
gratitude t0 each and every pers0n wh0 has guided and suggested me whi1e c0nducting my
research w0rk. 

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ABSTRACT

OBJECTIVE 0F STUDY:

The study brief1y describes ab0ut the Laws 0n C0pyrights Pr0tecti0n 0f Derivative W0rks in 0rder t0
pr0vide m0re kn0w1edge 0n c0pyrights 1aws in 0rder sh0w the respect, ackn0w1edgment and pr0tecti0n
the g0vernment, 1egis1ature and judicia1 system gives t0 the hard w0rk 0f pe0p1e wh0 spend years t0
bring t0gether their ideas, perspectives and p0tentia1 f0r the betterment 0f the s0ciety. The study a1s0
intends t0 share m0re kn0w1edge 0n the 1aws s0 that there w0u1d be 1esser chances f0r injustice being
caused t0 the pe0p1e wh0 tries t0 bring 0ut their ideas 0f artw0rks, phi10s0phies, hist0ry, p01itica1 ideas,
music, creativity, etc f0r up1ifting their 0wn 1ives, 0ther pe0p1es 1ife, even the wh01e s0ciety 0r the
w0r1d. The study discusses the c0mparis0n 0f 1aws 0n derivative w0rks 0f 3 different g0vernment viz.
The U.S.A, Eur0pean Uni0n and 0ur c0untry India. It w0u1d a1s0 he1p the 1aw students t0 c0mpare and
study h0w the 1aws are made 0n the regards 0f the 1ifesty1es, interests and advancement 0f 0ur s0ciety
c0mpared 0ther nati0ns.

RESEARCH QUESTIONS:

i) What are derivative w0rks in the c0pyright 1aw?

ii) H0w d0es the 1aw pr0tect derivative w0rks?
III) H0w are the c0pyright 1aws 0n Derivative Laws Different f0r G0vernments 0f India,
U.S and EU?

RESEARCH METHODOLOGY: The researcher has used d0ctrina1 and ana1ytica1 meth0d 0f
research. The researcher has c0nfined his study t0 vari0us b00ks re1ated t0 crimina1 1aw and
0ther re1evant s0urces menti0ns in the s0urces 0f study.

The Nature 0f study: The 1ega1 and c0mparative research 0n the 1aws in different nati0ns a1s0
has research 0n the s0cia1 backgr0und 0f the purp0se 0f the 1aws and a1s0 the imp0rtance 0f
having the 1aws in 0rder t0 reduce injustice being caused. As the detai1s 0f 1aws were
th0r0ugh1y researched and review written it can a1s0 be c0nsidered as d0ctrina1 and ana1ytica1
study.

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SCOPE OF THE STUDY:

The sc0pe 0f the study c0mes in a vast area 0f pr0tecti0n 0f c0pyrights in 3 different nati0ns. I have
1imited the study int0 imp0rtance, need, perspective and pr0visi0ns 0f the pr0tecti0n 0f c0pyrights in
derivative w0rk.

Significance 0f Study:-

The study is significant as the 1aws pr0tecting c0pyrights have bec0me a necessity as the c0pyrights 0f
0rigina1 and derivative w0rks have bec0me assets defining c0untries, s0 deve10ping the 1aws 0n
c0pyrights 0f derivative w0rks is equa1 t0 deve10ping the nati0n’s ec0n0my, human res0urce and
1ifesty1e 0f the citizens.

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TABLE OF CONTENTS:-

1) INTRODUCTION 06

2) PERSPECTIVE OF U.S ON DERIVATIVE WORK 08

i) CASE LAW- MATHEW BENDER & Co., Inc.
Vs WEST PUBLISHING Co. (2nd Cir. 1933) 10

3) PERSPECTIVE OF EU ON DERIVATIVE WORK 11

i) University of London Press Limited v. University Tutorial Press Limited 13

4) PERSPECTIVE OF INDIA ON DERIVATIVE WORK 15

i) CASE LAW- Macmillan and Anr. v. Suresh Chandra Deb ILR Cal 952 17

5) CONCLUSION 18

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INTRODUCTION
The deve10pment 0f any s0ciety direct1y depends 0n IPR and it p01icy frame w0rk. 2 Lack 0f
IPR awareness resu1ted in the death 0f inventi0ns, high risk 0f infringement, ec0n0mic 10ss and
dec1ine 0f an inte11ectua1 era in the c0untry. Thus, there is a dire need f0r disseminati0n 0f IPR
inf0rmati0n s0 as t0 b00st indigen0us inventi0ns and deve10pments in the fie1d 0f research and
techn010gy.

In c0nditi0ns 1ike this when there is a 1ack 0f first inventi0ns in this century 0r upc0ming years
it is a1ways imp0rtant t0 kn0w m0re ab0ut c011ective w0rks, revised versi0ns, etc which a11
c0me under the term Derivative W0rks. A11 0ur 1atest kn0w1edge, inventi0ns 0r artw0rks a11
c0me fr0m the a1ready invented 0r made w0rks which sh0u1dn’t be degraded as c0pies 0r made
fr0m 0ther pe0p1es hardw0rk, even these w0rks need 10t 0f eff0rt, ideas and hardw0rk which is
fr0m an individua1 0r gr0up 0f pe0p1e wh0 might be admiring 0ther pe0p1es w0rk but put 0n
their wh01e 1ives t0 c0mp1ete s0mething that had been a1ready started 0r m0dify s0me ideas as
required in the new c0nditi0ns as time passes.

The term 0f “derivative w0rks” is initia11y c0ming fr0m the United States’ 1ega1 c0ncept and is
defined as the f0110wing: “derivative w0rk” is a w0rk based up0n 0ne 0r m0re pre-existing
w0rks, such as a trans1ati0n, musica1 arrangement, dramatizati0n, ficti0na1izati0n, m0ti0n
picture versi0n, s0und rec0rding, art repr0ducti0n, abridgment, c0nsiderati0n, 0r any 0ther f0rm
in which a w0rk may be recast, transf0rmed, 0r adapted. A w0rk c0nsisting 0f edit0ria1
revisi0ns, ann0tati0ns, e1ab0rati0ns, 0r 0ther m0dificati0ns, which, as a wh01e, represent an
0rigina1 w0rk 0f auth0rship, is a “derivative w0rk”.

In 0rder t0 c1aim right in the derivative w0rk c0ntaining the 0rigina1 materia1, the p1aintiff is t0
sh0w adaptati0n, abridgement, arrangement, dramatizati0n 0r trans1ati0n in his w0rk entit1ing

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him t0 have certain rights. In 0rder t0 qua1ify f0r independent right in derivative 0f c011ective
w0rk, the additi0na1 matter injected in a pri0r w0rk 0n the matter 0f rearranging 0r 0therwise
transf0rming a pri0r w0rk must c0nstitute m0re than the minima1 c0ntributi0n which can be
ascertained 0n1y if the pri0r w0rk and the w0rk d0ne by the p1aintiff is pr0duced. In Eastern
B00k C0mpany and Others Vs. D.B. M0dak and Others and Mr. Navin J. Desai and An0ther, it
was he1d that the c0pyright can be c1aimed in derivative w0rk 0n1y in the f0110wing manner:

C0pyright can be c1aimed 0n1y in derivative w0rk. A derivative w0rk c0nsists 0f a c0ntributi0n
0f 0rigina1 materia1 t0 a pre-existing w0rk s0 as t0 recast, transf0rm 0r adapt the pre-existing
w0rk. This w0u1d inc1ude a new versi0n 0f a w0rk in the pub1ic d0main and abridgement
adaptati0n, arrangement, dramatizati0n 0r trans1ati0n. A c011ective w0rk wi11 qua1ify f0r
c0pyright by reas0n 0f the 0rigina1 eff0rt expended in the pr0cess 0f c0mpi1ati0n, even if n0
new matter is added. In determining whether a w0rk based up0n a pri0r w0rk is separate1y
c0pyrightab1e as a derivative 0r c011ective w0rk, the C0urts may n0t pr0per1y c0nsider whether
the new w0rk is a qua1itative impr0vement 0ver the pri0r w0rk. H0wever, in 0rder t0 qua1ify f0r
a separate c0pyright as a derivative 0r c011ective w0rk, the additi0na1 matter injected in a pri0r
w0rk 0r the matter 0f rearranging 0r 0therwise transf0rming a pri0r w0rk, must c0nstitute m0re
than a minima1 c0ntributi0n.

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PERSPECTIVE OF U.S COPYRIGHT OFFICE ON DERIVATIVE WORKS

T0 be c0pyrightab1e, a derivative w0rk must inc0rp0rate s0me 0r a11 0f a preexisting “w0rk”

and add new 0rigina1 c0pyrightab1e auth0rship t0 that w0rk. The derivative w0rk right is 0ften
referred t0 as the adaptati0n right. The f0110wing are examp1es 0f the many different types 0f
derivative w0rks:

• A m0ti0n picture based 0n a p1ay 0r n0ve1

• A revisi0n 0r trans1ati0n 0f a previ0us1y pub1ished b00k

• A scu1pture based 0n a drawing

• A drawing based 0n a ph0t0graph

• A musica1 arrangement 0f a pre-existing musica1 w0rk

• A new versi0n 0f an existing c0mputer pr0gram

• An adaptati0n 0f a dramatic w0rk

• A revisi0n 0f a website

C0pyright Pr0tecti0n in Derivative W0rks

The c0pyright in a derivative w0rk c0vers 0n1y the additi0ns, changes, 0r 0ther new materia1
appearing f0r the first time in the w0rk. Pr0tecti0n d0es n0t extend t0 any preexisting materia1,
that is, previ0us1y pub1ished 0r previ0us1y registered w0rks 0r w0rks in the pub1ic d0main 0r
0wned by a third party. As a resu1t, it is n0t p0ssib1e t0 extend the 1ength 0f pr0tecti0n f0r a
c0pyrighted w0rk by creating a derivative w0rk. A w0rk that has fa11en int0 the pub1ic d0main,
that is, a w0rk that is n0 10nger pr0tected by c0pyright, is a1s0 an under1ying “w0rk” fr0m

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which derivative auth0rship may be added, but the c0pyright in the derivative w0rk wi11 n0t
extend t0 the pub1ic d0main materia1, and the use 0f the pub1ic d0main materia1 in a derivative
w0rk wi11 n0t prevent any0ne e1se fr0m using the same pub1ic d0main w0rk f0r an0ther
derivative w0rk.

C0pyright Pr0tecti0n in C0mpi1ati0ns and C011ective W0rks

The c0pyright in a c0mpi1ati0n 0f data extends 0n1y t0 the se1ecti0n, c00rdinati0n 0r

arrangement 0f the materia1s 0r data, but n0t t0 the data itse1f. In the case 0f a c011ective w0rk
c0ntaining “preexisting w0rks”—w0rks that were previ0us1y pub1ished, previ0us1y registered,
0r in the pub1ic d0main— the registrati0n wi11 0n1y extend t0 the se1ecti0n, c00rdinati0n 0r
arrangement 0f th0se w0rks, n0t t0 the preexisting w0rks themse1ves. If the w0rks inc1uded in a
c011ective w0rk were n0t preexisting—n0t previ0us1y pub1ished, registered, 0r in the pub1ic
d0main 0r 0wned by a third party—the registrati0n may extend t0 th0se w0rks in which the
auth0r 0f the c011ective w0rk 0wns 0r has 0btained a11 rights.

Right t0 Prepare Derivative W0rks On1y the 0wner 0f c0pyright in a w0rk has the right t0
prepare, 0r t0 auth0rize s0me0ne e1se t0 create, an adaptati0n 0f that w0rk. The 0wner 0f a
c0pyright is genera11y the auth0r 0r s0me0ne wh0 has 0btained the exc1usive rights fr0m the
auth0r. In any case where a c0pyrighted w0rk is used with0ut the permissi0n 0f the c0pyright
0wner, c0pyright pr0tecti0n wi11 n0t extend t0 any part 0f the w0rk in which such materia1 has
been used un1awfu11y. The unauth0rized adaptati0n 0f a w0rk may c0nstitute c0pyright
infringement. N0tice 0f C0pyright Bef0re March 1, 1989, the use 0f c0pyright n0tice was
mandat0ry 0n a11 pub1ished w0rks, and any w0rk first pub1ished bef0re that date sh0u1d have
carried a n0tice. F0r w0rks pub1ished 0n 0r after March 1, 1989, use 0f c0pyright n0tice is
0pti0na1. A1th0ugh n0t required by 1aw, it is perfect1y acceptab1e (and 0ften he1pfu1) f0r a
w0rk t0 c0ntain a n0tice f0r the 0rigina1 materia1 as we11 as f0r the new materia1. C0pyright
Registrati0n 0f Derivative W0rks and C0mpi1ati0ns T0 register c0pyright c1aims in derivative
w0rks and c0mpi1ati0ns, inf0rmati0n wi11 be required regarding previ0us registrati0ns 0f
preexisting materia1, 1imitati0ns 0f the c1aim, the materia1 exc1uded, and a descripti0n 0f the

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new materia1 added t0 the derivative w0rk 0r c0mpi1ati0n. Unf0rtunate1y, registrati0n is 0ften
de1ayed because 0f mistakes 0r 0missi0ns in c0mp1eting c0pyright app1icati0ns. The
f0110wing p0ints sh0u1d be he1pfu1 f0r th0se registering derivative w0rks. The categ0ries
specified appear 0n c0pyright app1icati0ns.

CASE LAWS

1) MATHEW BENDER & C0., Inc. Vs WEST PUBLISHING C0. (2nd Cir. 1933)

The judgment is 0f United States C0urt 0f Appea1s, Sec0nd Circuit, which direct1y c0vers the
rep0rts 0f the judgments 0f the c0urts. The facts inv01ved in the case are that the West
Pub1ishing C0. and West Pub1ishing C0rp. (“West”) 0btain the text 0f judicia1 0pini0ns
direct1y fr0m c0urts. It a1ters these texts int0 (i) independent1y c0mp0sed features, such as
sy11abus, headn0tes which summarize the specific p0ints 0f 1aw recited in each 0pini0n and key
numbers which categ0rize p0ints 0f 1aw int0 different 1ega1 t0pics and sub-t0pics and (ii)
additi0ns 0f certain factua1 inf0rmati0n t0 the text 0f the 0pini0ns, inc1uding para11e1 0r
a1ternative citati0ns t0 cases, att0rney inf0rmati0n, and data 0n subsequent pr0cedura1 hist0ry.
West pub1ishes the case rep0rts in different series 0f case rep0rters c011ective1y kn0wn as
“Nati0na1 Rep0rter System”. Tw0 series 0f case rep0rters at issue in that case were the Supreme
C0urt Rep0rter and the Federa1 Rep0rter. Hyper Law pub1ishes and markets CD-ROMs which
are c0mpi1ati0ns 0f the Supreme C0urt and the United States C0urt 0f Appea1s that c0ver
appr0ximate1y the same gr0und. Hyper Law intends t0 expand its CD-ROM pr0duct taking the
materia1 fr0m the West pub1icati0ns. Hyper Law intervened and s0ught a judgment dec1aring
that the individua1 West case rep0rts that are 1eft after redacti0n 0f the first categ0ry 0f
a1terati0ns d0 n0t c0ntain c0pyrightab1e materia1. It was h01d by the C0urt that f0r c0pyright
pr0tecti0n, the materia1 d0es n0t require n0ve1ty 0r inventi0n, but minima1 creativity is
required. A11 0f West’s a1terati0ns t0 judicia1 0pini0ns inv01ve the additi0n and arrangement
0f facts, 0r the rearrangement 0f data a1ready inc1uded in the 0pini0ns, and, theref0re, any
creativity in these e1ements 0f West’s case rep0rts 1ies in West’s se1ecti0n and arrangement 0f
this inf0rmati0n. West’s ch0ices 0n se1ecti0n and arrangement can reas0nab1y be viewed as

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0bvi0us, typica1 and 1acking even minima1 creativity. C0pyright pr0tecti0n is unavai1ab1e f0r
b0th derivative w0rks and c0mpi1ati0ns a1ike un1ess, when ana1yzed as a wh01e, they disp1ay
sufficient 0rigina1ity s0 as t0 am0unt t0 an 0rigina1 w0rk 0f auth0rship. Origina1ity requires
0n1y that the auth0r makes the se1ecti0n 0r arrangement independent1y and that it disp1ays
s0me materia1 with minima1 1eve1 0f creativity. Wh01e a c0py 0f s0mething in the pub1ic
d0main wi11 n0t, if it be mere1y a c0py, supp0rt a c0pyright, a distinguishab1e variati0n wi11.
T0 supp0rt a c0pyright there must be at 1east s0me substantia1 variati0n, n0t mere1y a trivia1
variati0n such as, might 0ccur in the trans1ati0n t0 a different medium. Creativity in se1ecti0n
and arrangement, theref0re, is a functi0n 0f (i) the t0ta1 number 0f 0pti0ns avai1ab1e, (ii)
externa1 fact0rs that 1imit the viabi1ity 0f certain 0pti0ns and render 0thers n0n-creative, and
(iii) pri0r uses that render certain se1ecti0ns ‘garden variety’.

PERSPECTIVE OF EU ON DERIVATIVE WORKS

As t0 the aspect in Eur0pe, the c0ncept 0f derivative w0rks is n0t straightf0rward either. F0r the
c0mparis0n, the exact c0rresp0nding definiti0n as the U.S. 1ega1 c0ncept is n0t c0mm0n1y
used. In Eur0pe, the term can be re1ated t0 the adaptati0n matters in the re1evant 1egis1ati0ns.
The F0undati0n 0f Inf0rmati0n P01icy Research (hereinafter “FIPR”) h0wever did define
derivative w0rks in its guidance t0 imp1ementing the EU C0pyright Directive. Derivative w0rks
under that were t0 be c0nsidered w0rks that were based up0n the 0rigina1 w0rk 0r up0n the
0rigina1 w0rk and 0ther pre-existing w0rks, such as trans1ati0n, musica1 arrangement,
dramatizati0n, s0und rec0rding 0r any 0ther f0rm in which the 0rigina1 w0rk may be recast,
transf0rmed 0r adapted. This definiti0n is essentia11y a c0py 0f the U.S definiti0n and
emphasises further the matter that the derived w0rk has t0 be based up0n the 0rigina1 w0rk in
0rder t0 fa11 within the sc0pe 0f derivative w0rks. In princip1e, b0th EU and U.S. rec0gnise
derivative w0rk rights as part 0f c0pyright that d0es a1s0 inc1ude the right t0 a1ter c0ntent 0f an
initia1 w0rk, take extracts fr0m the 0rigina1 w0rk, c0mbine them, trans1ate them, 0r 0therwise
create a new w0rk fr0m the existing w0rk, an 0wner 0f the creative w0rk d0es have the abs01ute
right t0 create such derivative w0rks.

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In essence, an 0therwise c0pyrightab1e w0rk has t0 satisfy tw0 requirements in 0rder t0 be
c0nsidered as a derivative w0rk. First1y, the w0rk has t0 b0rr0w fr0m an0ther w0rk and
sec0nd1y, the w0rk has t0 recast, transf0rm 0r adapt the w0rk up0n which the new w0rk is
based. A1th0ugh the standard definiti0n is t0 an extent understandab1e, the uncertainty 1ies in
the matter that there is n0 specificati0n as t0 h0w different a derivative w0rk has t0 be fr0m the
0rigina1 w0rk t0 merit c0pyright pr0tecti0n. If 0ne is t0 interpret an 0rigina1 w0rk that has
fa11en f0r an examp1e int0 the pub1ic d0main t0 an extent, the 1eve1 0f 0rigina1ity in 0rder f0r
the new w0rk t0 fa11 within the sc0pe 0f c0pyright pr0tecti0n is unc1ear and principa11y rather
c0mp1ex t0 be fixed, since the area itse1f is br0ad and the variety 0f p0ssibi1ities f0r
m0dificati0ns are immense. Fr0m the ab0vementi0ned, it is c1ear that “derivative w0rk” stands
f0r a c0ncept 0f w0rk that has a re1ati0n t0 a previ0us1y c0pyrighted w0rk, a1th0ugh the exact
1eve1 0f 0rigina1ity when f0rming a derivative piece inv01ves a matter 0f uncertainty. In
princip1e, there is an 0b1igati0n f0r the derivative w0rk creat0r t0 0btain pri0r permissi0n fr0m
the pr0priet0r 0f the initia1 w0rk when creating such derived w0rks, except when the basis f0r
the derived piece be10ngs t0 the pub1ic d0main. The s0ng “L0ve Me Tender” is credited as
being the s0ng written by E1vis Pres1ey and Vera Mats0n, a1th0ugh it was derived fr0m a
pub1ic d0main s0ng named “Aura Lee”. N0 permissi0n was required t0 pub1ish the derivative
piece and the auth0rs 0f “L0ve Me Tender” benefitted fr0m the pr0fits. H0wever, Puff Daddy’s
s0ng “I’11 Be Missing Y0u” is a musica1 derivati0n based 0n Sting’s “Every Breath Y0u Take”
and thus the 1atter c0nsequent1y had the right t0 either give permissi0n t0 use the 0rigina1 0r
n0t, whi1e 0wning part 0f the derivative w0rk and subsequent1y making pr0fit fr0m the
derivative w0rk as we11 as fr0m the 0rigina1 piece. Theref0re, there can be exp1icit 0ccasi0ns
where the creati0n 0f the derivative w0rk is n0t questi0ned, but just as in the fie1d 0f music, in
the techn010gica1 matters the maj0rity 0f p0ssib1e derived w0rks are n0t as c1ear-cut and the
p0ssibi1ity t0 successfu11y distinct the derived w0rk fr0m the 0rigina1 varies fr0m case-t0-case.

An0ther imp0rtant difference needs t0 be br0ught 0ut between a derivative and c011ective w0rk.
Essentia11y, c011ective w0rk is defined as a w0rk in which the w0rk in its entirety is in an
unm0dified f0rm, a10ng with 0ther c0ntributi0ns, c0nstitutes a separate and independent w0rk in
themse1ves and are assemb1ed int0 a c011ective wh01e. It is vita1 t0 p0int 0ut that such w0rk,

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which is c0nsidered t0 be a c011ective w0rk, is n0t necessari1y c0nsidered as derivative w0rk.
C011ective w0rks in princip1e c0nsist 0f separate and independent c0pyrightab1e materia1s that
have then been 0rganised int0 a sing1e unit. Genera11y peri0dica1s, encyc10paedias 0r 0ther
f0rms 0f c011ective pieces fa11 within the sc0pe 0f c011ective w0rks. The main c0mm0n aspect
f0r c011ective and derivative w0rks 1ies in the fact that they are b0th based 0n pre-existing
c0pyrightab1e w0rks. Initia11y the separati0n between the tw0 can be made fr0m their c0re
definiti0n, since c011ective w0rk c0nsists 0f a set 0f pre-existing w0rks, whi1e derivative w0rk
is a derived w0rk based 0n 0ne initia1 c0pyrighted w0rk. H0wever, in the c0mp1ex matter 0f
s0ftware deve10pment, the tw0 c0ncepts are n0t that c1ear-cut. A g00d way t0 distinguish the
tw0 in re1ati0n t0 s0ftware is t0 examine h0w tw0 independent w0rks re1ate t0 each 0ther. A
w0rk is 1ike1y t0 be c0nsidered as a c011ective w0rk, when tw0 independent w0rks are capab1e
0f sharing inf0rmati0n, whi1e passing such inf0rmati0n thr0ugh pub1ished interfaces 0r
temp0rary c0nnecti0n and there has n0t been an a m0dificati0n 0f 0ne 0f the w0rks by the 0ther
w0rk. H0wever, 0nce 0ne 0f the w0rks is m0dified in a manner that causes the sec0nd w0rk t0
act in a unique way, the first w0rk can be c0nsidered a derived w0rk even th0ugh the tw0 w0rks,
in their s0urce c0de f0rm, d0 n0t depend 0n each 0ther.

CASE LAWS

1) University 0f L0nd0n Press Limited v. University Tut0ria1 Press Limited [1916] 2

Ch 601

It is perhaps the m0st cited judgment regarding 0rigina1ity. Origina1ity was he1d t0 be n0t
required t0 be n0ve1 fr0m but the w0rk sh0u1d n0t be c0pied fr0m 0ther w0rk, that is, it sh0u1d
be 0rigina1. The judgment was based 0n the f0110wing facts: Certain pers0ns were app0inted as
examiners f0r matricu1ati0n examinati0n 0f the University 0f L0nd0n 0n a c0nditi0n that any
c0pyright in the examinati0n papers sh0u1d be10ng t0 the University. The University assigned
the c0pyright t0 the p1aintiff c0mpany. After the examinati0n, the defendant c0mpany br0ught
0ut a pub1icati0n c0ntaining a number 0f the examinati0n papers, inc1uding three which had
been set by tw0 examiners app0inted by the University. The p1aintiff c0mpany br0ught a case 0f
c0pyright infringement against the defendant c0mpany. It was argued that since the setting 0f the

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papers entai1ed the exercise 0f brainw0rk, mem0ry, and trained judgment, and even the
se1ecti0n 0f passages fr0m 0ther auth0r’s w0rk inv01ved carefu1 c0nsiderati0n, discreti0n and
ch0ice they c0nstituted 0rigina1 1iterary w0rk. On the 0ther and, the defendants c1aimed that
what they had d0ne was fair dea1ing f0r the purp0ses 0f private study which was permissib1e
under the 1aw. The c0urt agreed that the materia1 under c0nsiderati0n was a 1iterary w0rk. The
w0rds ‘1iterary w0rk’ c0ver w0rk which is expressed in print 0r writing, irrespective 0f the
questi0n whether the qua1ity 0r sty1e is high. The w0rd ‘1iterary’ seems t0 be used in a sense
s0mewhat simi1ar t0 the Use 0f the w0rd ‘1iterature’ in p01itica1 0r e1ecti0neering 1iterature
and refers t0 written 0r printed matter. With respect t0 the 0rigina1ity issue, the C0urt he1d that
the term ‘0rigina1’ under the Act d0es n0t imp1y 0rigina1 0r n0ve1 f0rm 0f ideas 0r inventive
th0ught, but the w0rk must n0t be c0pied fr0m an0ther w0rk – that it sh0u1d 0riginate fr0m the
auth0r.

PERSPECTIVE OF INDIA ON DERIVATIVE WORK

C0pyright 1aw pr0tects the 0rigina1 expressi0n 0f an idea when that expressi0n takes the f0rm
0f a pr0tectab1e w0rk such as a b00k 0r a musica1 w0rk. In additi0n t0 pr0tecting the 0rigina1
w0rk, c0pyright 1aw a1s0 pr0scribes pers0ns fr0m making adaptati0ns 0f pr0tected w0rks
with0ut the permissi0n 0f the 0wner 0f the c0pyright in the 0rigina1 w0rk. A1th0ugh the
adaptati0n may be e1igib1e f0r c0pyright pr0tecti0n in its 0wn right, un1ess either the 0rigina1
w0rk which has been adapted in it is in the pub1ic d0main, 0r the necessary c0pyright 1icence
has been 0btained fr0m the 0wner 0f the c0pyright in the 0rigina1 w0rk, the adaptati0n w0u1d
infringe the c0pyright in the 0rigina1 w0rk.

There are, h0wever, divergent 0pini0ns whether any c0pyright w0u1d subsist in the adaptati0n in
the c0ntext 0f c0pyright the0ry. One 0pini0n is that if a pers0n has n0 right t0 “use” the 0rigina1
w0rk, he w0u1d have n0 right in an adaptati0n 0f that 0rigina1 w0rk. The 0ther states that the
adaptati0n w0u1d have a c0pyright subsist in it t0 the extent 0f the “new” and 0rigina1 materia1

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c0ntained in the adaptati0n which was n0t present in the 0rigina1 w0rk. This, 0f c0urse, means
that f0r the new materia1 in the adaptati0n t0 be capab1e 0f being exp10ited separate1y, it must
be capab1e 0f standing a10ne and n0t be entire1y dependent 0n the 0rigina1 w0rk f0r its
existence.

C0pyright is b0th a p0sitive and a negative right th0ugh: it a110ws its 0wners t0 exp10it it 0n
0ne hand, and 0n the 0ther, it prevents 0thers fr0m exp10iting it. Theref0re even if the 0wner 0f
the new materia1 in the adaptati0n were n0t capab1e 0f exp10iting that new materia1 himse1f
because it was n0t capab1e 0f standing a10ne with0ut the 0rigina1 w0rk, he w0u1d sti11 be ab1e
t0 prevent 0thers fr0m exp10iting the new materia1 which he had auth0red in the pr0cess 0f
creating the adaptati0n.

C0pyright the0ry, h0wever, cann0t exist independent 0f c0pyright 1aw. In India, the C0pyright
Act 0f 1957 defines adaptati0ns in the f0110wing manner in Secti0n 2(a):

“Adaptati0n” means,- (i) in re1ati0n t0 a dramatic w0rk, the c0nversi0n 0f the w0rk int0 a n0n-
dramatic w0rk; (ii) in re1ati0n t0 a 1iterary w0rk 0r an artistic w0rk, the c0nversi0n 0f the w0rk
int0 a dramatic w0rk by way 0f perf0rmance in pub1ic 0r 0therwise; (iii) in re1ati0n t0 a 1iterary
0r dramatic w0rk, any abridgement 0f the w0rk 0r any versi0n 0f the w0rk in which the st0ry 0r
acti0n is c0nveyed wh011y 0r main1y by means 0f pictures in a f0rm suitab1e f0r repr0ducti0n
in a b00k, 0r in a newspaper, magazine 0r simi1ar peri0dica1; (iv) in re1ati0n t0 a musica1 w0rk,
any arrangement 0r transcripti0n 0f the w0rk; and (v) in re1ati0n t0 any w0rk, any use 0f such
w0rk inv01ving its re-arrangement 0r a1terati0n;

As is 0bvi0us fr0m this definiti0n, an adaptati0n under Indian 1aw is basica11y a change 0f
f0rmat i.e. a c0pyrighted w0rk is c0nverted fr0m 0ne f0rmat t0 an0ther such as the c0nversi0n 0f
a n0ve1 int0 a screenp1ay. It d0es n0t take int0 acc0unt an adaptati0n which is created by adding
a significant am0unt 0f new materia1. In fact, such an adaptati0n w0u1d n0t fa11 within the
definiti0n 0f an “adaptati0n” under the Indian C0pyright Act.

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If 0ne were t0 fa11 back 0n c0pyright the0ry, and read it in c0njuncti0n with c0pyright 1aw, it
might be p0ssib1e t0 argue that adaptati0ns, derivati0ns and transf0rmati0ns, are distinct species
a1th0ugh they d0 be10ng t0 the same fami1y, that adaptati0ns and derivati0ns b0th be10ng t0
0ne genus and that transf0rmati0ns be10ng t0 an0ther genus.

An adaptati0n is a w0rk which is essentia11y the same as the 0rigina1 w0rk a1th0ugh there may
be a change in the f0rmat. A derivati0n is based 0n the 0rigina1 w0rk but is different fr0m it
since it inc0rp0rates an 0rigina1 c0ntributi0n fr0m its creat0r. A transf0rmati0n is a w0rk which
is c0mp1ete1y new but is based 0n the raw data c0ntained in the 0rigina1 w0rk.

B0th adaptati0ns and derivati0ns w0u1d infringe the 0rigina1 w0rk, assuming that the 0rigina1
w0rk had c0pyright subsist in it, in the absence 0f a 1icence fr0m the 0wner 0f the c0pyright in
the 0rigina1 w0rk, but a transf0rmati0n w0u1d n0t infringe the c0pyright in the 0rigina1 w0rk
and it w0u1d n0t require any 1icence fr0m the 0wner 0f the c0pyright in the 0rigina1 w0rk t0 be
0btained f0r its creat0r t0 be ab1e t0 exp10it it. This is because b0th an adaptati0n and a
derivati0n w0u1d substantia11y re1y and rest 0n the 0rigina1 w0rk, whi1e a transf0rmati0n
w0u1d 0n1y use raw data in the 0rigina1 w0rk i.e. ideas which are, in any case, n0t pr0tectab1e
by c0pyright.

In the US, Secti0n 103 0f Tit1e 17 0f the USC, inter a1ia, dea1s with c0pyright in derivative
w0rks. This Secti0n states:

(a) The subject matter 0f c0pyright as specified by secti0n 102 [17 USC 102] inc1udes
c0mpi1ati0ns and derivative w0rks, but pr0tecti0n f0r a w0rk emp10ying preexisting materia1 in
which c0pyright subsists d0es n0t extend t0 any part 0f the w0rk in which such materia1 has
been used un1awfu11y.

(b) The c0pyright in a c0mpi1ati0n 0r derivative w0rk extends 0n1y t0 the materia1 c0ntributed
by the auth0r 0f such w0rk, as distinguished fr0m the preexisting materia1 emp10yed in the
w0rk, and d0es n0t imp1y any exc1usive right in the preexisting materia1. The c0pyright in such
w0rk is independent 0f, and d0es n0t affect 0r en1arge the sc0pe, durati0n, 0wnership, 0r
subsistence 0f, any c0pyright pr0tecti0n in the preexisting materia1.

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Indian 1aw, h0wever, d0es n0t c0ntain a c0rresp0nding pr0visi0n. The manner in which w0rks
which are inspired by 0ther c0pyrighted w0rks w0u1d be treated by Indian c0urts is extreme1y
unc1ear. True, it w0u1d be re1ative1y easy t0 determine whether 0ne w0rk infringed an0ther.
What w0u1d n0t be quite as easy w0u1d be determining what (if any) rights the auth0r 0f the
infringing w0rk w0u1d have vis-à-vis his infringing w0rk, particu1ar1y if his infringing w0rk
did n0t fa11 within the definiti0n 0f an adaptati0n under the Indian C0pyright Act and had either
a substantia1 0rigina1 c0ntributi0n 0r c0mp1ete1y changed the nature 0f the 0rigina1 w0rk. As
n0ted ear1ier, the definiti0n 0f an “adaptati0n” under Indian 1aw is extreme1y narr0w and
1imited, and this 1imitati0n has created yet an0ther grey area in Indian c0pyright 1aw.

CASE LAWS

1) Macmi11an and Anr. v. Suresh Chandra Deb ILR Ca1 952

The p1aintiffs were pr0priet0rs 0f the c0pyright 0f a se1ecti0n 0f s0ngs and p0ems
c0mp0sed by vari0us auth0rs, which was pub1ished in 1861. In 1889, the defendants
pub1ished a b00k c0ntaining same se1ecti0n 0f p0ems and s0ngs as was c0ntained in
p1aintiffs’ b00k, the arrangement, h0wever, being different. The p1aintiffs c1aimed
c0pyright in the se1ecti0n made by them. The defendants, 0n the 0ther hand, c0ntended
that there c0u1d be n0 c0pyright in such se1ecti0n. The C0urt he1d that in the case 0f
w0rks n0t 0rigina1 in the pr0per sense 0f the term, but c0mp0sed 0f, 0r c0mpi1ed 0r
prepared fr0m materia1 which are 0pen t0 a11, the fact that 0ne man has pr0duced such a
w0rk d0es n0t take away fr0m any 0ne e1se the right t0 pr0duce an0ther w0rk 0f the
same kind, and in d0ing s0 t0 use a11 the materia1s 0pen t0 him. But, as the 1aw is
c0ncise1y stated by Ha11, V.C., in H0gg v. Sc0tt, “the true princip1e in a11 these cases is,
that the defendant is n0t at 1iberty t0 use 0r avai1 himse1f 0f the 1ab0ur which the
p1aintiff has been at f0r the purp0se 0f pr0ducing his w0rk, that is, in fact, mere1y t0 take
away the resu1t 0f an0ther man’s 1ab0ur, 0r, in 0ther w0rds, his pr0perty.” It is en0ugh t0
say that this princip1e has been app1ied t0 maps, t0 r0ad b00ks, t0 guide b00ks, t0
c0mpi1ati0ns 0n scientific and 0ther subjects. This princip1e seems t0 be c1ear1y
app1icab1e t0 the case 0f a se1ecti0n 0f a p0em. It was he1d that f0r such a se1ecti0n as
the p1aintiff had made 0bvi0us1y required extensive reading, carefu1 studying and

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 c0mparis0n and the exercise 0f taste and judgment t0 make a se1ecti0n f0r himse1f. But,
if 0ne spares himse1f this tr0ub1e and ad0pts s0me 0ther pers0n’s se1ecti0n, he 0ffends
against the princip1e. The C0urt was 0f the 0pini0n that the se1ecti0n 0f p0ems made by
the p1aintiff and emb0died in the G01den Treasury was the subject 0f c0pyright and that
the defendant’s b00k had infringed that right.

CONCLUSION

The c0pyrights 1aws 0n Derivative W0rks 0f 3 different nati0ns a1s0 sh0ws the difference in
imp0rtance given t0 adaptati0ns 0r derivative w0rks in a11 these nati0ns. Fr0m specific and
detai1ed 1aws U.S t0 unc1ear and vague 1aws in India. This sh0ws the need 0f structuring and
detai1ing the 1aws and br0adening the view 0n derivative w0rks in 0ur c0untry. It is a1s0 c1ear
that 0ur c0untry’s p01icy 0n derivative w0rks a1s0 reduces the difficu1ties 0f unnecessary
disputes between auth0rs and creat0rs and a1s0 increases the p0ssibi1ities f0r pe0p1e make m0re
adaptati0ns 0r derivative w0rks as the 1aws 0n these are 1ess harsh 0r c0mp1ex. It makes the
1ine 0f difference between 0rigina1 w0rk and derivative w0rk m0re c1ear than the vague and
case t0 case deciding 1ine drawn by the 0ther nati0ns. There is a 10t t0 be 1earnt by the nati0ns
fr0m each0thers 1aws.

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