Legal Aspects of the Information Society. - Free Technology Academy

GNUFDL • 19 Intellectual property: authors' rights and copyright
3.2. Ownership of rights in a derivative work
As we have already studied, an original work is a work of autonomous and
independent creation, even if published collectively with others. A derivative
work, on the other hand, is a new work resulting from the transformation
of pre-existing work, usually without the collaboration of the author of the
latter, but with his/her permission (see below).
As the derivative work constitutes a new work, even if it is based on another,
there are therefore two different works and two sets of rights: in the original
work and the derivative work. We will see below that the author of the
derivative work needs the permission of the original author or rightsholder in
order to create this new work, and must exploit the new derivative work in
accordance with the licence granted by the original rightsholder.
We will also see below that copyleft (in the GPL or other copyleft license) is a
free software licensing mechanism enabling others to create works based on
existing software, but forcing the new author, if he/she redistributes the new
work, to do so under the terms of the same copyleft free software licence – i.e.
maintaining the freedom of the work.
3.3. Identifying the author and/or rightsholder
As the original authors or rightsholders to a work are those that can first exploit
or authorise the exploitation of a work, and may also assign the rights
thereupon (by licence) to a new rightsholder, it is clearly important to know
the methods of identifying the copyright holders.
The © symbol, intellectual property registration and authorship recognition
notices in the work itself are the most common instruments for identifying
the owner of the Authors' rights to any work, although such formalities have
not been mandatory since the Berne Convention.
Generally speaking, copyright law provides that:
• The author shall be presumed to be whoever appears as such in the work
by name, signature or mark identifying them (notice of authorship: © Jane
Smith, 2007).
• If the work has been disseminated anonymously or under a pen name,
the exercise of the rights shall correspond to the person disseminating the
work with the consent of the author.