YOUR CONTRACT HAS HORNS - GRAPPLING WITH THE LAW AS A WRITER

DISCLAIMERS:
* Ugh, starting with the legalese already? Consider this my first piece of advice: always cover your
ass. Second: the best cover is the written word. So before we get down to things, let me practice
what I preach
* I'm a lawyer, but this isn't meant to be specific advice. If you've got a specific legal issue,
personally consult with a lawyer who can give you specific advice. If you go to court and make a
case on the basis of "Paolo Chikiamco said so", you'll be tossed out faster than a smoker in a
maternity ward.
* Also, being a lawyer doesn't make me an expert on the law, no more than being a published
writer makes me an expert on publishing or writing. I never specialized in intellectual property. I'm
writing these articles in the hope that my experience and training will be of some use to others,
but while I'll take pains not to make factual errors, I can't guarantee that. So this is me disclaiming
liability for bad things that happen because of something that is present or omitted from this book.
Let the Buyer er, Browser, beware.
* I consider these posts to be a working draft, so I reserve the right to change them after I post if I
realize I screwed up some legal doctrine. Or worse, forgot an apostrophe!
* These columns don't automatically make you my clients, first because that's not how it works,
and second, because I'm not taking any clients. I got out of practice for a bunch of reasons, most
of which have to do with me much rather spending time writing stories than pleadings.
* I'm a Filipino, and based in the Philippines. A lot of want I'm going to say will probably still be
useful to writers from other jurisdictions, but details may vary, and details can be very important.
* I'll be writing this in English because that's the language I'm most comfortable in, and because
the contracts and the law that you deal with are most likely going to be written in English.
* Also, I'm not going to go into taxation, so don't ask me about that, because screw taxes. (Actually,
I'm just really bad at Tax Law. Please don't make me relive it.)

ARISE, LORD BUSINESS!
=Where an introduction is made, and we tackle some whys and wherefores=
I'm not the greatest at giving advice. By "not the greatest", I mean I'm the type of person who'd
respond to a heartbroken friend's three hour long, blow-by-blow account of her boyfriend
cheating on her with a "then break up with him, geez." It's not bad advice per se, just maybe not
what the person actually needs to hear at the moment.
There was also that one time I was giving a talk about writing to Ateneo High School students.
They found out I was a lawyer, and asked why I left active practice, which triggered a fifteen
minute monologue on the soul-sucking nature of aspects of the legal profession which then
prompted the teacher to quickly jump in for some damage control.
"What Mr. Chikiamco means to say is that, if you really want to be a lawyer, go for it, but it's not
for everyone."
Which is true. The problem is, many people are unaware of what one has to do before one can
truly evaluate whether or not the law is for you -- you can't assess your suitability from how much
you enjoy Suits, or Phoenix Wright, or even how badly you want to serve the cause of justice. You
need to experience the grind of a firm or a public assistance office, or sit through a few day's
worth of court hearings and/or boardroom meetings. At the very least, you need to have access to
someone else's experience and analysis of those things, because a lawyer in your mind and a
lawyer in reality are likely to be two very different things. The problem is, there aren't a lot of
testimonials in the Philippines about what it's like being a lawyer, or at least not many from people
interested in accuracy as opposed to buffing their egos or client list.
It's the same with being a writer, except even more so. With the exception of Mina Esguerra's
"Publishing and Self-publishing: Advice for Writers" -- which is what prompted me to write these
articles (thanks for giving me more to do Mina! >_<) -- I haven't seen any other books that focus
on the practical side of writing. Sure you'll find memoirs and CNF essays about inspiration and
immersion and the role of a writer in society, and whatever. Don't get me wrong, those have their
uses. But they don't prepare you for the business of writing.
And make no mistake, writing is a business, even if you have no intention of selling any of your
work to the public. This is a world where media, entertainment and publishing entities are starving
for content, and to some, your innocent piece of non-commercial whimsy may be the proverbial
candy in the hands of a baby. Just because you don't want to make money from your writing,
doesn't mean that others won't want to do it for you or rather, for themselves, at your expense.
Mind you, I'm not surprised that writers don't focus on the business aspect of writing. It can be
tedious, it can be confusing, but more importantly, engaging with business matters uses a
different part of your brain than the part you use to write creatively. It requires a different attitude.
In writing, creativity is one of your biggest assets. In business -- or, rather, the legal aspects of it --
not so much. Try arguing against copyright infringement with an RTC judge by crafting an intricate
metaphor where your fair use rights are symbolized by a blind gryphon, and see how far that'll get
you. (Or, rather, please don't.)
That's where I can help, or so I think, which I guess segues into a discussion of just who I am
exactly. I'm a writer that's been published in the Philippines, the United States, and Singapore. I've
written short fiction, comics, and interactive fiction. I've given talks here and abroad, eked out a
3rd place in the Palanca Awards once upon a time, and judged the Graphic Literature category in
the National Book Awards. I run rocketkapre.com and am the Managing Editor of Studio Salimbal
(salimbalcomics.com).
I am also a lawyer and I worked in a law firm for almost three years. During that time much of my
creative output was shuttered, so I have a personal understanding of the shift that is needed to go
from a creative mindset to a legal-business one.
But it's a shift that is important and necessary to writers, and it's not as daunting as it initially may
seem. We've all got a little bit of Lord Business inside us, and it's time to let him out.

THE BIG BUNDLE OF RIGHTS
=Where we take a basic look at what copyright is, and why you need to choose your roommates
with care=
Copyright is every right you have as the owner of a creative work -- not a physical or digital copy of
the work, but the work itself. Copyright as a whole usually belongs to the creator of the work, but
that's not always the case.
Still, for now let's start from the position of the lone creator, the one who writes or draws a work
that's entirely his/her own, not for anyone else and not because it's the creator's job. This is the
context that the law assumes, and while it does talk about copyright in other situations, it's best to
start from the default.
By law, we're primarily talking about Republic Act No. 8293, the Intellectual Property Code of the
Philippines, as well as various international treaties that the Philippines has signed.
We say "copyright" but what we really mean is every right to do something with the work that
could conceivably earn you money. It's why the IP Code also calls these rights "Economic Rights."
In the Philippines, the IP Code enumerates these acts broadly in Section 177, but let me try to give
a summary with less legalese.
The Right to Reproduce - No, this has nothing to do with sex. What's the most common form of
copyright infringement in the Internet age? It's downloading/torrenting creative work such as
films, comics, albums, and television shows. It's not "theft" since downloading/torrenting leaves
the original file untouched, but it violates the rights of the copyright holder because it reproduces
the work without proper authorization.
Printing falls under reproduction as well. If you don't have an agreement with a publisher, and
suddenly you find your book in bookstores, then that's a violation of your right to reproduction. If
your roommate uploads the manuscript of your novel to Scribd and makes it available for free or
for a price, then that's a violation of your right to reproduction. (Also, kill your roommate.)
The Right to Transform - No, this has nothing to do with Michael Bay -- no, wait, actually it does. If
Peter Lair retained the Right to Transform aspect of his copyright over the Teenage Mutant Ninja
Turtles, then he'd be able to do more than gently criticize their new looks -- he'd be able to stop
the Michael Bay abomination in its tracks. Adapting a property to another medium -- in the
Turtles' case, from comics to film -- is a transformation of the work, and the Right to Transform is
included in the bundle of rights found in copyright. Transformation includes acts like translation,
dramatization, and abridgment.
The Right to First Distribution - If you finish a beautiful painting of yourself and celebrate with a
ten hour sleep-a-thon, and in the meantime your roommate grabs it and bartered it to your
landlady as payment for rent, then that is a violation of your right to first distribution. (Also, what
is up with your roommates?) Note that this only covers the first distribution of your work -- if you
voluntarily trade your landlady in payment of your rent, and she turns around and sells it to your
roommate so that he can do creepy things with it, you can't prevent your landlady from making
that sale, since at that point the painting is her property, and she has the right to transfer
ownership to whomever she wants.
The Right to Rent - However, if you shot a video of yourself doing an interpretative dance and
bartered it to your landlady as payment for rent, then you can prevent her from renting the video
to your latest creepy roommate, because ownership of an audiovisual work (and a few other
things, like a computer program) doesn't automatically include the right to rent it out. The Right to
Rent these types of works is included in the copyright bundle-o-fun.
The Right to Show - The right to perform or publicly display a work, or communicate a work to the
public is also included in the copyright bundle. While "performance" and "public display" are fairly
self-explanatory, "communication" of a work is a broad term that courts are still arguing about.
For now, it seems that making a work available to unintended recipients falls under unauthorized
"communication" -- think live-streams of events that allow non-paying viewers to watch a for-pay
event.
Seeing "copyright" as being a bundle of those five general categories of rights is important,
because you learn to see copyright as something that you can parcel out in pieces -- and not just
five pieces either. There hundreds of ways you can split the copyright pie, and that's one of the
most valuable -- and lucrative -- tools that you have as a copyright holder. We'll get into that in our
next instalment.
COPYRIGHT CUTS AND CONVERSATIONS (PART 1)
= Where I abandon a manananggal metaphor, because her lower half is so frikkin' useless=
So why exactly did we spend a chapter getting used to thinking of copyright as not just one right,
but a shorthand for a whole number of rights? To avoid a situation like this:
Publisher: We want to publish your book!
Author: Hooray!
Publisher: But to do that, we need to be able to reproduce your book, obviously.
Author: Obviously!
Publisher: But since that's part of copyright, and you hold the copyright, we'll need you to transfer
copyright over your book to us first, obviously. [Presents contract, which says AUTHOR HEREBY
TRANSFERS COPYRIGHT OVER WORK TO PUBLISHER MWAHAHAHAHA.]
Author: Obviously! [Signs contract, regrets it forever.]
It's important to think about copyright as a bundle of rights because that makes it easier to
remember that (a) don't give COPYRIGHT as a whole away if you don't mean to do exactly that; (b)
you can license/give only a select portion of rights while retaining all the others.
Deciding on which rights to license (you're giving them the ability to exploit certain rights that you
hold) is an important part of any contract negotiations. Be as stingy as you can, within reason.
Remember what we said about copyrights being economic rights -- these rights can earn you
income, and you shouldn't part with their use unless you're sure you're getting a good deal. Part of
what you should look at is whether the publisher is in a position to exploit that right (make money
for the both of you) at a scale that you would be unable to do on your own. If they're simply going
to throw an unedited copy of your manuscript up on a website, hell, you could do that and keep all
proceeds. Not every publisher / partner / roommate is going to be able to make effective use of
every right found in the copyright bundle. Why give a book publisher the right to adapt your comic
into a film? Why give Esquire Philippines the right to translate your short story into Chinese?
Of course, you're not always going to be in a position to negotiate your contract. Even then, unless
you're publishing with the Godfather, you always have the option to refuse. Also, most publishers
aren't going to ask for your entire copyright, just certain specific rights. Being aware of the
severability (you can cut off pieces without killing it, sort of like a... oh, never mind) of copyright
means you have a better understanding of both what rights you're licensing, and what rights
you're keeping with you.
Remember: in the default position we mentioned in the last chapter, you, as the creator, have the
whole copyright bundle -- anything you don't explicitly license to another via written contract, is
deemed to remain with you.
You can slice your copyright bundle any number of ways, but here are a few angles you can use
when deciding where to stick in the knife.
Cut by Type of Right
Remember those five general categories we talked about last chapter? The Right to Reproduce,
the Right to Transform, the Right to First Distribution, the Right to Rent, and the Right to Show?
You can subdivide your copyright along those lines. A publisher wants to publish -- in otherwise,
reproduce and distribute -- your book? Then give them the right to reproduce and distribute your
work, and keep everything else. The contract may not use those terms exactly (some contracts will
just put this under "the right to publish"; some digital publishers with their own storefronts may
also ask for the right to "display" -- think of websites as shop windows), so when in doubt, seek
clarification/amendment.
Remember as well that those five categories are general categories, and you can further limit the
rights you grant by being more specific. The Right to Transform, in particular, is a whole other
bundle of rights -- sometimes called Derivative Work Rights, because it involves the creation of
new works based on your original -- that have the potential to be very lucrative. Not every book is
going to end up with a film or television deal, of course, but even an audio book deal can be good
money, and you don't want to give up that right to a publisher that has no intention of exploring
that medium.
And, of course, if ever those film studios ever do come knocking... you want them to do that at
your door.
Cut by Language
Translations -- also classified as derivative work -- can also be lucrative for a creator, especially
when paired with territorial exclusives (more on that later). If you're published in five different
languages, then congratulations -- you've basically been published five times for the same work,
with no extra effort on your part. Remember what I said about a good publishing partner being
able to exploit your copyright in a way you never could? Translation into a language you're not
fluent in is an example of that, since it allows your work to reach a market you'd otherwise never
get into.
Of course, a bad translation can also ruin your work. Don't give translation rights unless you're
sure your publisher intends to translate -- and make sure your price goes up accordingly.
Remember that every right you give up represents a potential revenue stream for the other party,
and one that -- unless you're only giving them a non-exclusive right -- you won't be able to use
yourself.
Cut by Territory
You can also limit the scope of the rights to particular territories, usually nations or continents.
This is something of particular interest to Filipino authors, because there are very few local
publishers who publish and distribute outside the Philippines, and in that case, it makes sense to
limit publishing rights to the Philippines. Even for large foreign publishers -- only a few truly
publish worldwide, so territory limitations should always be considered. Remember what I said
about being published multiple times if you're published in multiple languages? The same goes for
multiple territories.
Tomorrow -- on World Book and Copyright Day -- we'll talk about cutting by exclusivity, format,
and term/contingency. Same Cop Time, Same Copy Channel!

COPYRIGHT CUTS AND CONVERSATIONS (PART 2)
= Where we continue to talk slicing things for fun and profit=
Cut by Exclusivity
In most cases, you're going to be asked for exclusive rights, and that's understandable -- publishers
are a brand, and publishing a book that's available from another publisher doesn't do much for
their brand or their bottom line. But in some cases, such as with short stories, or short comics, or
when you're not dealing with a publisher per se but a distributor, there will be a market for your
work in more than one venue.
In the case of short stories, what is commonly asked for isn't a broad exclusive right to the story
but a First Right, usually in conjunction with other qualifiers -- "First Philippine English Print rights"
for example, means that what the publisher is buying the right to publish your story, in print, in
English, before anyone else in the Philippines. Note also that usually (unless the law provides for a
different presumption) a lack of a qualifier means you're not limiting the right granted in that
category -- "First English Print rights" means that you're not qualifying the right by territory, which
means this is a Worldwide grant, unless qualified somewhere else in the contract. It's always best
to be specific.
Selling a work after it has already been previously published in a language/territory is what's called
a Reprint. This is a separate right and not deemed included unless explicitly mentioned in the
contract.
Cut by Format
Some publishers are purely print publishers, others are purely digital, and others do a little of both
-- but nowadays, it's not surprising for publishers to ask for both print and digital rights, or simply
not specify which (in which case they'll have a claim to both), regardless of their specialization. The
amount of money some publishers lost by not asking for ebook rights before the rize of Amazon
and smartphones is likely ginormous, and many would rather be safe than sorry.
An ebook is not considered a derivative work, so simply reserving those rights to yourself will not
do -- you need to be sure that the contract is clear as to whether you are selling the rights to
publish in print, digital, or both. Remember, while there are some publishers who handle both
print and digital books, that doesn't mean that publisher is your best choice for both formats.
Weigh your options.
Also note that the right to publish electronically can mean different things -- you'll want any
contract to be specific as to what is granted. "Electronic rights" can technically cover distributing
an ebook through retail chains, publishing the work only on the web, etc.
Cut by Term/Contingency
Usually, what is asked for -- and what you should be giving -- in a publishing contract is the license
to exploit a right that will remain with you. It's why the copyright notice in your typical novel
remains in the name of the author, and why the nightmare scenario with which we opened up this
chapter is such a con. It's your work, your copyright, and you're just letting another
person/persons exploit that right in return for you getting a cut of the proceeds, for as long as the
other party complies with certain conditions.
One of the most important conditions to place is one which specifies exactly when your grant of
license will END. The primary way this is done is by way of a set term -- say, a year, five, ten.
Generally speaking, a renewable contract for a shorter period of time is preferable. Take note as
well if the procedure is one that automatically renews, or requires some action on the part of you
or the other party. An automatic renewal usually means you have a window of opportunity to tell
your publisher that you're not renewing, and if you miss that window, you're locked in for another
term. Circle those dates in the deepest, bloodiest red (or, you know, just put the alarm on your
calendar app).
But it's make sure to go beyond a simple statement of the number of years a license should last --
that covers the ideal situation, where you're happy with the publisher. If that's the case, great,
good for you, good for them, but a prudent creator prepares for the worst -- and I don't think
you'd be reading these little missives if you didn't want to be a prudent creator.
So make sure that you have the right to terminate the contract if the publisher doesn't hold up
their end of the bargain.
Beware: Some contracts will have a termination clause -- but one that only lists the ways that the
publisher can terminate the contract. Make sure it allows for you to do the same, under analogous
conditions. Those conditions usually involve a party not complying with their contractual
obligations --
So, ah, make sure that your publisher has some obligations to you in the contract, and not just the
other way around.
If the term of your contract is suitably lengthy, one of those obligations should be to keep your
book in print or circulation. After all, the reason you entered into a publishing agreement is
precisely to ensure that your book is published and sold. If your book is unavailable for more than
a short time, then that undermines the reason you entered the contract, and you should be
allowed to terminate the contract and look for another publisher if the problem isn't resolved
ASAP.
Cut by... Oh, You Get the Idea
There are more ways to cut up copyright than there are to skin a cat. Just don't get too carried
away -- no one is going to pay money for a license that is too specific to be of use ("I hereby grant
you the Exclusive First Barangay Hustisya Taglish Newsprint Print Rights"), and keep track of the
rights you do license, so that you don't double dip.
But when in doubt, cut, cut, CUT! (Please note that this advice only holds true for copyright, and
not in any other situation. Yes, I'm talking to you. You, with the knife. Please put it down and back
away from your tax forms.)