This research intends to establish a theoretical frame of the question and, at the same time, pursues to have a practical application on the controversies on the use of a derivative work. To do that, the most relevant Spanish and international case history about the right of transformation is cited, trying to offer an updated overview of the present problems.
The structure of the work is divided in the following 5 axes:
The first axis focuses on the evolution and present state of the right of transformation, comparing the monistic conception of the Spanish legal system with Germany and other relevant systems of copyright. The concept of authorization and its exceptions are treated individually. Next, the contents of the right of transformation, as well as its relation with the moral and economic rights that can be affected by a transformation are studied, such as the right to the integrity of the work, the author’s right to modify its work or the right of reproduction and its link with the right of transformation itself. The recognition of the moral and economic damage has also interest to determine the effects of an infringement of the right. Finally, the treatment of the transformation in civil and criminal law are compared, as well as its connection to industrial property and unfair competition.
The second axis of the work examines the notion of originality in copyright, understood as an unavoidable requisite for the protection of the derivative work. The chapter focuses also on the limits of originality (transformation vs. plagiarism), the free use and the exceptions to authorization (such as the right of citation and the parody). Desbois’s typology of originality in derivative works (in their expression and form, in their expression or in their form) is used as a system of classification, with a consideration to the existing artistic genres, as well as the use of other’s idea and the limitations on their protection. The effects of an act of transformation on performing artists is also taken into account.
The third axis is based on the copyright rights on the work generated by the transformation. In this part, the duality of rights on the derivative work is described: between both authors and between the author and the grantee of exploitation rights. The merchandising and advertising of derivative works, the effects of plural authorship and the conclusion of unfinished works receive an individual treatment here.
The fourth axis deals with the new technologies and its relevancy in the transformation of intellectual works. The study focuses on the legal treatment of computer programs, web pages, multimedia works, sampling et al., and its effects on author’s copyright.
The fifth and final axis concludes with a presentation of the most recent proposals on a new interpretation of the right of transformation in international copyright. The work ends with a set of personal conclusions regarding the main problems seen in the thesis and offering some possible solutions on how to balance the new uses of existing works with the rights of the authors.
