“La Historia de Iori y Run”
摘要
Pursuant to Art. 11(1) Intellectual Property Law (IPL), a translation is considered to be a derivative work that also gives rise to intellectual property rights for the translator. These include, under the rights of exploitation, the right of reproduction, which means that the translation may not be reproduced without her authorisation, except where provided for by the law (Art. 17 IPL). Article 32(1) IPL lays down a more restrictive regulation of the right of quotation. First of all, in the case of written works, it places restrictions on the inclusion of an “excerpt” of another’s work that has already been disclosed, thus ruling out reproduction of a work in its entirety. Moreover, the inclusion of an excerpt of another’s work must, if it is not merely a review, serve the purpose of “analysis, commentary or criticism”. In all cases, it must respect the authorship of the work. Exploitation by the party benefitting from the limitation of the right of quotation may not unjustifiably prejudice the interests of the author or be detrimental to normal exploitation of the work concerned. When a text has been published as such, in its entirety and independently, it is of course not an excerpt. However, it can also not be ruled out that a text is not an excerpt when, as an independent self-contained element, it has been published together with other independent texts that are linked in some way (for example, by a common author) that justifies their joint publication. In no case is reproduction justified when the text is incorporated into an anthology of texts, as the purpose is not analysis, commentary or criticism, but communication. When the publication in which the so-called “excerpt” is included contains features typical both of an academic study and of an anthology or selection of representative texts, insofar as they are introduced or commented on from an academic perspective, and the reproduction is intended to illustrate something, note must be taken of what the priority is: publication of the text reproduced (with a commentary or incorporated into a context that highlights its exemplary nature) or academic/scientific study that requires analysis of the excerpts of another’s work. The distinction in a case like this is dictated by the “extent” of the other’s work. This does not refer to the proportion of the number of pages of the “excerpt”, but rather the extent to which it is fit for its intended purpose, which is that required by the law in order to be covered by the right of quotation (analysis, commentary or criticism of the excerpt reproduced).
[…]