Copyright and Rights Explained

by noid ( | | )

In order for us writers to protect ourselves, we should be more aware of the rights we own when it comes to our works. What follows is an explanation of copyright and various publishing rights as I understand them based on my experiences freelancing for international magazines, and on my own research.

According to our own Intellectual Property Code (Republic Act No. 8293) and its Law on Copyright, which is partly based on the Copyright Law of the United States (not to mention the principles of the Berne Convention for the Protection of Literary and Artistic Works, which recognizes the copyrights between sovereign nations, and to which the Philippines is a signatory), the author is defined as "the natural person who has created the work."  And "in the case of original literary and artistic works, copyright shall belong to the author of the work."

An author (or co-authors for that matter) does not need to register his work for him to own the copyright. This is because most of the nations already adhere to the aforementioned Berne Convention which says that once an author is finished creating his work, it is automatically his. (Under old Philippine copyright laws this was not the case, and, within thirty days of creation, you had to register your work to own its copyright or else risk losing all rights to your work.)

Copyright is understood to represent a "bundle of rights" which the author owns.  In our Copyright Law, these rights include, among others, reproduction, dramatization or transformation of one's own work, and first public distribution or other forms of transfer of the work.  In the publishing world, these rights are usually stipulated in contracts, and are stated in more specific terms. These terms however are not declared in any particular law but has become standard in contracts.  Thus they are, so to speak, "rights by contract." These are the publishing rights which we, as writers, should be aware of. It is also important to remember, that it is we, writers, who own and have control over these rights and it is up to us to determine or parcel out these rights in whatever form we want.

First Serial Rights (FSR) -- the license offered by an author to a publisher to publish a work (article, story, poem, etc.) for the first time. Usually, it is qualified or limited by location. First Philippine Serial Rights mean that the publication has the right to first publish a work in serial form in the Philippines. The other key word here, aside from "first" is "serial," which means publications which appear in a series like a magazine, journal, or a newspaper. When a publisher acquires First Philippine Serial Rights, he can't distribute it outside of the Philippines, since that would require transfer of "international rights."  Thus, you can still sell First Serial Rights outside of the country, as long as you are specific about the location where it can be distributed.  If you sell it to the U.S. or Canada, for example, you will be offering First North American Serial Rights; in Australia, First Australian Rights, and so on.

Second Serial Rights / Reprint Rights -- From the publisher's point-of-view, FSR is an "exclusive" right which means you cannot sell it more than once in the specified geographic location (in our case, the Philippines).  If you want to do so, that would mean selling Second Philippine Serial Rights or Reprint Rights, which has less value. You can sell Second Serial Rights or Reprint Rights to as many publications as you want.

But, you may ask, what about the Internet? What if the publication is an online publication? Well, it is well worth to remember what FSR is not and/or does not include. Among other things FSR does not include "electronic rights," which is the right to publish a work in electronic form, e.g., over the Internet and on a CD-ROM. It also does not include "anthology rights," or the license to publish your work in a collection.

First Rights (or First-time Rights) -- Like FSR, First Rights means that your work must not have appeared elsewhere. But unlike FSR, it does not specify where and how your work is going to be published. This term is often used by online publishers and publishers of non-traditional media, e.g., CD-ROM. Since it is a very broad term, the writer is advised to ask for a more specific terminology in his contract, e.g., "electronic rights" (or even "CD-ROM rights") for electronic media, "first international rights" for publication outside the country, and of course "first serial rights" for a periodical.

One-Time Rights / Simultaneous Rights -- This is a non-exclusive license granted to a publisher to use your work once. It is non-exclusive because your work can also be used by more than one publisher at a time.  Thus, it is also called "Simultaneous Rights" which means you are granting more than one publication license to use your work as long as these publications are not competing publications, or do not have overlapping circulations, (e.g., you may submit a column to several non-competing newspapers or magazines). In practice, you may put the phrase "exclusive to your circulation area" on your work (e.g., on the upper right hand corner of the manuscript) to alert the publisher that your work may also be published in a non-competing publication.  You can sell one-time rights for work that has or has not been published, but usually after First Serial Rights have been sold.

Electronic Rights -- Like first rights, "electronic rights" is a catch-all term, since the term "electronic" can encompass a spectrum of more particular rights.  The writer is well-advised therefore to be more specific when selling these rights. Thus, you may license an e-zine publisher to use "first Internet rights," or sell the aforementioned "CD-ROM rights" for your work to be included in a CD. Or if a print publication wants to post your work online, you may want to offer "one-time non-exclusive Internet use." If you want to feel more secure, you may specify, through an "exclusion" clause, which "electronic rights" you are not including.

All Rights -- means just what the term says, that you are selling all your rights to the publisher including the right to publish, market, distribute, and perform the work, or to create derivative works, as stated in Philippine Copyright Law. If you are going to sell all rights make sure that you are compensated sufficiently.  Or if you don't want to sell all rights, remove or amend the clause in the contract stating that you are giving up all rights.

Work-for-Hire -- In a work-for-hire set-up, the writer is under an employer-employee contract and all rights attached to what he writes -- including copyright -- during employment, belong to the employer.  For example, all rights and copyright of the script that a scriptwriter writes while under the employ of a particular production company belongs to that production company.

Subsidiary Rights -- used in a book contract. Other than the right to publish a book, an author also owns subsidiary rights which he can sell to the publisher. Or he may choose to retain these subsidiary rights so that he can make better and/or separate deals for each right. Examples of subsidiary rights are translation rights, book club rights, electronic rights such as CD-ROM publishing, foreign rights, and film, videotape and audiotape rights.

Dramatic, Television and Motion Picture Rights -- rights acquired to turn the work into a play, teleplay or film. The usual agreement is that the producer pays the author 10% of the actual agreed-upon price for the work to be optioned or marketed and produced, usually in a span of one year. If the work isn't produced in one year, the author can option the work to somebody else without having to return the initial 10% down payment. 

Conclusion

In our country, writers have traditionally gotten the short end of the stick, and there is no better way to improve the status quo than to change it ourselves. We can start by being better educated about the rights to our work, and fighting for them and negotiating better deals.

Disclaimer: This article is not meant to be legal advice. Consult an attorney to address the specifics of your case.

Dino Manrique is the owner/publisher of FilipinoWriter.com.


by miked on September 17, 2005 - 5:37am

When accepting assignments have you ever sent a set of terms and conditions along with your quote? Some publishers and companies take care of this already by sending you a work contract that mentions the copyrights they are purchasing from you but I was just wondering what the case would be when working for clients that have less experience hiring writers, and if there are standard templates we can or should use, or if just mentioning it once on the quote is enough (i.e. "price for the article is USD xxx.xx for first Internet rights").

What's the common practice here?

by noid on September 18, 2005 - 2:21am

Off the top of my head, I can't remember a situation where I dictated the rights (important to distinguish this from copyright which most of the time belongs to the author) I'm selling to the publisher/client, but if the situation arises, I think the safest way is to create an invoice (could be electronically transmitted) specifying the rights you are offering and for what amount. You can create your own format as long as it includes your name and that of the client, of course. :)

by miked on September 18, 2005 - 6:42am

I've never had to wonder before when dealing with print publications (which always have a policy concerning purchased rights) but doing business with online clients has been different. Rights are sometimes never mentioned, just a description of the assignment and the agreed upon price. Sometimes I wonder if the client assumes they've bought the copyright to my work as well and not just the right to "publish" it on their website.

by arseniajoaquin on September 18, 2005 - 1:23pm

This is a very useful info. PLS carry on.  Thanks a lot.  May God bless you, Dino.  SEN

by Teacher Sol on October 6, 2005 - 5:18am
Hi Dino,
CONGRATULATIONS!
Bulls eye...there are many Pinoy Teachers Network members who are published writers and writers wannabe (like me) who just need to be discovered. Read their blog entries and you will know what I mean. It's in the links of Pinoy Teachers Network Bulletin Board (http://pinoyteachersnetwork.blog-city.com).
Rest assured that we will give our support to your site, please let us know how to start. Your site meter tells us that your site is new, when did you start? This is a good project and I wish you the best.
Just like the Pinoy Teachers Network (we're turning three months on Oct 12) you're in the infancy stage too, we know how difficult it is to start a big project like this. Let's take care of each other. But we are glad that you are collaborating with us. We will link your website to our primary links of Teaching Resources, and we'll put an announcement too about your project. Please also link us back from your website, we believe that our collaboration would work better if we have a symbiotic relationship.
Feel free to interact with us.
by noid on October 6, 2005 - 10:12am

Thanks, Teacher Sol. :) The site was launched (a soft launch at least) last Sept 15. Spreading the word about the site would be great. :)

Already added Pinoy Teachers Network to the links -- http://www.filipinowriter.com/node/347. You may add your own links using the weblink content type -- create content>weblink. :)

by esc on July 16, 2006 - 9:22am

May i know your opinion regarding my plan to offer my book to a prestigious publisher.I already published it and sold 3,500 copies but I can't manage it successfully because I'm permanently employed in a certain department.What shall I do and what should be avoided in signing a contract.Do I need to consult a lawyer to protect my rights?

Thanks

by noid on July 24, 2006 - 12:14am

Hi esc,

I haven't had a book published yet, and will need to research further about this topic. It is not necessary to have a lawyer as long as you educate yourself well. The Internet has a lot of resources about this particular topic like this one -- http://www.authorsguild.org/?p=101 . So my advice is for you to be empowered by being well-informed. Google and the Internet has made this task easier.

But, of course, if you can afford it -- I don't know how much Intellectual Property lawyers charge -- then go for it if you want to save time, although I am not so sure how many IP lawyers out there are aware of all the issues. The bottom line is that whether you have a lawyer or not, you should try to educate yourself as well as you can.