2.4 Derivative works

“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. But, 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 and is still recognizable in the new work. 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 add an individual touch, a personal contribution. Therefore, the derivative work has its own individual character and meantime characters of the pre-existing work are also still evident.

Permission from the right holder of the pre-existing work is necessary to create and share a derivative work (except for situations falling into one of the exceptions). In the case specific characters of the pre-existing work cannot be identified anymore, the creator of such derivative work is exempt from having to seek for permission.

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.


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 in Art. 10 CopA can be infringed, unless there is a case of private use.


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).