ABSTRACT
The starting point of this chapter is that the derivative works right must be fully separated from the reproduction right, and that its remedies must be limited. With respect to the first aspect, I suggest a revised definition for the derivative works right that will separate it from reproductions. In short, the right will apply when significant additional creativity is added to existing expressions in an inseparable way, and when such expressions could not be substituted with non-protected expressions without derogating from the purpose of the work. In this context, I offer five categories of uses that characterize the definition and review its positive implications. As for the second aspect, after reviewing several alternative remedies models suggested in the literature, I argue that the optimal model is compulsory licenses for the making of derivative works, in terms of efficiency, fairness and political plausibility. In short, the model allows second authors to use preexisting expressions to make derivative works subject to paying reasonable royalties from future revenues. If the parties do not consent on a deal, the second author could initiate proceedings to determine the fair royalties rate subject to the payment of a lump sum for the cost of proceedings and the reputation revenues from the first work. The entire model is subject to an initial blocking period allowing first authors to exclusively make derivative works.
