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The Written Property: A Freelance Writer's Guide to Copyright
The Written Property: A Freelance Writer's Guide to Copyright
The Written Property: A Freelance Writer's Guide to Copyright
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The Written Property: A Freelance Writer's Guide to Copyright

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The Written Property is an essential guide for freelance writers in the Philippines who want to protect their work through copyright. Written in an easy-to-understand format, this book covers all the key aspects of copyright law and how it applies to freelance writers. From defining copyright to registration and infringement, this comprehensive guide offers practical advice and tips on how to safeguard your work and avoid legal pitfalls. Whether you're a seasoned writer or just starting out, The Written Property is a valuable resource that can help you navigate the complex world of copyright law.

LanguageEnglish
Release dateMar 4, 2023
ISBN9798223201076
The Written Property: A Freelance Writer's Guide to Copyright

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    The Written Property - Imelda Morales

    Protect the Works of Writers

    * All images used in this book without attribution are free public domain. CC0 photo from Rawpixel, Ltd.

    Copyright, even for people involved in word-centric careers, is a confusing topic. Despite the existence of Republic Act 8293 (The Intellectual Property Code), there are many things that we still don’t understand about it. Some writers are not even aware of certain provisions or clauses in the law that directly affect their livelihood. Ignorance and confusion, unfortunately, are sometimes followed by mistakes and misfortune.

    For writers and freelancers—freelance writers in particular—this may manifest as failed projects, unfair contracts, loss of intellectual property rights, reduction of expected income, and so on. One of the ways to address this issue is to raise the awareness of freelance creators about their own rights and responsibilities. The community clearly needs all the help it can get so that it can support the creation of a fair business environment, fair policies, and fair practices. 

    In May 2021, the Intellectual Property Office of the Philippines - Bureau of Copyright and Related Rights (IPOPHL-BCRR) put out a call for proposals for their flagship project, Copyright Plus. They were looking for projects that can help promote and develop the country’s copyright sector. The Freelance Writers’ Guild of the Philippines (FWGP) saw this as an opportunity to empower the local freelancing sector in the areas of intellectual property, writers’ rights, copyright, and contracts. FWGP submitted a proposal for evaluation, which was eventually selected for funding and implementation.

    FWGP’s proposed project is titled Protect Writers' Works—a 3-pronged program that includes the publication of an eBook, a social media campaign, and a webinar-book launch. The eBook is a collection of essays on IP, writers’ rights, copyright, contracts, and related topics written by different FWGP authors. It is specifically targeted at freelance content creators like writers, editors, translators, and the like. The eBook, this material you are currently reading, is being made available to the freelancing community for a small fee.

    The project’s objectives, as stated in the proposal submitted by FWGP to its co-funder IPOPHL-BCRR, are the following: (1) to produce a publication that can serve as a reliable reference for the local community of freelance content creators; (2) to offer guidance to freelance content creators as they conduct their work and activities like negotiating with employers, publishers, clients, etc.; (3) to help freelance content creators, specifically the writers, editors, and translators, deepen their understanding of intellectual property, writers’ rights, copyright, contracts, etc.; and (4) to empower the local community of Filipino freelance content creators.

    Most of the chapters in the eBook are presented using a Q&A format to allow readers to easily check each item to see if the situation or topic being discussed is relevant to their own interests. The ten chapters cover the following topics: a survey of the local freelancing landscape (Chapter 1); basic information on copyright (Chapter 2); protected and derivative works (Chapter 3); unprotected works (Chapter 4); rules of ownership (Chapter 5); limitations and exceptions (Chapter 6); copyright infringement and plagiarism (Chapter 7); remedies for copyright infringement (Chapter 8); ways to protect our copyright (Chapter 9); and common challenges that freelancers face (Chapter 10).  

    There are actual case studies (local and foreign examples), information from research as well as interviews that some of the authors did with lawyers and creators, and practical advice from experts and experienced practitioners. The annex section of this eBook presents useful reference documents for the freelancer, like a sample contract, a non-disclosure agreement, a work-for-hire contract, and the Copyright Law itself.

    As one of the editors of this publication, the three things I found challenging as I worked on this manuscript include: (1) the differences in the tone employed by the authors; (2) the same topics appearing several times in various chapters; and (3) the individual expressions of the authors and, sometimes, their interpretations of certain situations and facts, as well. Readers can rest assured that Atty. Mark Robert Dy, my co-editor, and I did our very best to hold everything together to be able to present to the public a cohesive, intelligent, and smooth-flowing narrative on the matter.

    Finally, allow me to thank the following for their precious help in producing this eBook: the members and officers of the Freelance Writers’ Guild of the Philippines, especially Bebang Siy, Jofti Villena, Connie Macatuno, Cecile Baltasar, Leslie Ann Castillo, Kate Placido, Tuni Balisi, Liezl Dunuan, Trish Barba, Hark Sarmiento, Pete Mariano, Velle Almazar, Excel Dyquiangco, and Issa Bacsa; Atty. Mark Robert Dy; IPOPHL-BCRR, especially Atty. Emerson Cuyo, Ms. Beng Reyes, and Mr. Jun Briola; all of our esteemed resource persons; the advocates of IP, writers’ rights and copyright; and the whole freelancing community, especially the Filipino freelance writers, editors, and translators for whom we are offering this work.

    Imelda Morales

    Writers’ rights advocate

    Founder, FWGP

    30 July 2022

    Reviewing the Freelancing Landscape

    Anthony John Balisi

    The Philippines has always had a thriving freelance economy. Most people saw this as an opportunity to work more independently, choosing their own schedules and pay rates without having to answer to a boss all the time. This was reinforced even more with the switch to virtual and online economies. 

    The way content is gathered, processed, and consumed has changed drastically in the last five to ten years. In the Philippines, media outlets made the big switch to online publication around 2017. 

    This had a huge impact on employment. Media organizations scaled down operations, forcing writers out of work and subsequently contributing to the growing freelance sector. Freelance writers, however, remain unorganized, informal, and invisible.  

    Looking at the freelance industry in Asia, Aliya Anjum[*]  notes that the five most common fields for freelance or gig work needing mid-level technical skills are content writing (blog writing, medical writing, book writing, ghostwriting); translation; office and customer support services (bookkeeping, managing social media, administrative support, and customer service); mental health support services (jobs for social workers, therapists, psychologists, and wellness coaches); and home design and renovation services (interior design, architecture, and home design). 

    Globally, India, Bangladesh, and Pakistan, in that order, rank among the Top 10 countries with the fastest-growing freelance earnings, owing to the English language being the moral surplus of colonialism. The other two significant countries serving this market are Ukraine and the Philippines. As of March 2019, Google had 120,000 contractors/freelancers on its payroll, which was more than the 102,000 permanent employees.[†]

    It can be argued, however, that freelancing brought on by technological advances has become a double-edged sword. While most freelancers may have been able to gain some control or autonomy over their craft or labor process, the same freelance arrangement also created precarious work. Companies and corporations demand longer work hours but pay their freelance workers meager fees due to current market pressure and the desire to make more profit. This has been the practice in various parts of the world for many years so, as a result, laws have been advanced and pushed, such as the Freelance Isn’t Free Act of 2017 (New York, USA) and amendments to the Late Payment Act of 1998 (United Kingdom). Nicole Cohen made a study showing the same experience among freelance journalists in Canada, on why it is difficult for freelancers to earn a living in a digital age when more media forms and outlets exist.[‡]

    The freelancing sector is part of the informal economy. The rise of online freelancing raises new issues on economic and employment planning, thus, labor policies and regulations need to adapt. In 2018, in a study done for the UP School of Labor and Industrial Relations, Kimberly Tabuga estimated that there were 1.5 million freelancers in the Philippines.[§]

    The evolving informality in the sector can be a factor leading to increasing labor exploitations. 

    Political Climate and the Freelance Writers

    THE CURRENT POLITICAL milieu contributes to the continued exploitation of freelance workers. We have witnessed the shutdown of huge media organizations in 2022. 

    Philippine online media is also too inflated with false information. The lingering crisis of disinformation can be partly attributable to a lack of professional and ethical guidelines in the informal/freelance sector. 

    The role of content creators as defenders of democracy has weakened amid the declining civil and political rights in Asia. The COVID-19 pandemic has forced more people out of work and into freelance writing. The vulnerability of these workers is now intensified as the sector lacks the protection of government laws, policies, and programs.

    The Pandemic

    IN 2020, WE SAW ANOTHER shift.  When the lockdown was enforced, the economy slowed down tremendously with the country posting a devastating -16.9 Gross Domestic Product (GDP) in the second quarter of 2020. The pandemic forced employers to downsize and retrench employees. A lot of these displaced workers turned to the freelance economy for their livelihood.

    The unemployment rate rose to 10.3% in 2020 from 5.1% in 2019, accounting for more than 4.5 million unemployed Filipinos, the highest recorded annual unemployment rate since April 2005.[**] The media and creative industries were not immune to this. One publisher said that he had to retrench about 50 people, many of them merchandisers who go around malls to check their books. That figure made up for about 40% of his employees.[††]

    It must be noted that cultural and creative industries also have a strong self-employed and freelance workforce where jobs are project-specific or are characterized by short-term assignments. 

    While flexibility may be an important freelancing feature for many workers in the sector, some freelancers still prefer the security and advantages of traditional employment. Unfortunately, the majority of freelance workers who work as independent contractors lack the legal rights to the required statutory benefits that regular employees enjoy. Rather, they are paid in accordance to the terms of the agreement made between the independent contractor and the primary or employing party.[‡‡] Freelancers and self-employed workers would have fewer employment rights and would have less access to benefits that can help cushion the effects of the pandemic. Freelance workers are also at risk of having their employment terminated more swiftly than those in the formal sector.[§§]

    Furthermore, estimating the impact of the pandemic on this sector can be particularly challenging, not to mention the near impossibility of identifying them through government channels and reaching out to them to offer help. Many freelance workers were unable to avail of government aid and subsidies during the lockdown as there were ambiguities in classifying them under the informal sector. 

    Though the long-term results of the pandemic are unpredictable, there has been a real risk that many companies may close due to lackluster sales. The UNESCO Study on Cultural and Creative Industries in the Face of COVID-19: An Economic Impact Outlook[***] estimated a contraction in the global book market from USD 92 billion in 2019 to USD 85.9 billion in 2020. The same study estimated the losses in employment within the Cultural and Creative Industries (CCI) in the Philippines at 55%, the highest decline registered by the study, the lowest being New Zealand’s 13%.[†††] The numbers also showed a positive relationship between a country’s quick response to the pandemic and how its CCI performs. The fewer COVID cases a country has, the less need for it to lock down, and the more likely that social and economic life can continue. A drastic contraction in the CCI’s gross value added, which approximates the sector’s contribution to the GDP, could have been avoided had the Philippines been more responsive to the threat.  

    The study also noted that cultural and creative industries are the most dependent on physical venues and sites and have thus suffered sharp economic losses. Megacities and major urban centers have seen the greatest declines in revenue for these industries. Furthermore, self-employed cultural and creative workers have experienced the highest levels of income loss and unemployment compared to other categories of cultural and creative workers.

    The State of Publishing and Print Media

    IN 2017, THE DEPARTMENT of Trade and Industry estimates the total gross value added of the Printing and Publishing Media to be at PHP 49.2 billion, with an estimated 574,000 employees, an establishment count of 22,476 enterprises, with USD 55 million in total trade for the Printing and Publishing Media creative sector, and a trade imbalance of 51 million in imports and 4 million in exports.[‡‡‡] The distribution of enterprises is as follows: 20,292 micro; 2,030 small, 98 medium, and 56 large. For books, the DTI’s estimation of imports totals USD 70.43 million and exports at USD 5.35 million, with a growth rate of minus seven point four percent (-7.4%). 

    The global pandemic resulted in the loss of mobility of consumers, hastening the shift to digital platforms. In the Philippines, while the groundwork for the digital economy has already been laid out years ago,[§§§] the pandemic constrained institutions, the largest of which is the government, to implement the shift immediately. For the first time in history, the demand for digital technology is propelled by public health considerations rather than modernization.

    E-commerce in the Philippines is steadily growing. While the country's revenue growth remains the lowest among Southeast Asia's tiger economies, the potential for growth in e-commerce remains the highest in the Philippines considering the time Filipinos spend on the Internet daily. Access to mobile phones is critical to the Philippines' digital growth; with more mobile connections than its population, the Philippine population is definitely connected, and mobile Internet speed outpaces non-mobile connections.[****]

    The pandemic disrupted much of the supply chain distribution. The print and publishing industry relies on an ingrained and complicated supply chain ecosystem that depends on printers, logistics providers, distributors, and retailers. While many publishers shifted to a work-from-home arrangement to ensure the continuity of their operations, the pressure on the supply chain caused quite a few operational challenges. Printers experienced financial difficulties with the cancellation of purchase. Delays in shipment resulted in paper shortages. Distributors and wholesalers were closed, and malls closed meant bookstores inside the malls were also closed. Even small independent bookstores had to close, disrupting access to books. When COVID-19 hit some of the publishers, such as when sickness spread among employees in publishers’ workplaces (warehouse or printing press), the establishments had to close for a minimum of two weeks, resulting in the closure of the respective publishers’ online stores as well. This resulted in further loss of sales. Moreover, a few large publishers implemented reduced work days and week-long shift rotations, with some employees not being required to go to work for months. Only essential employees had to come to work. A large portion of the publishing workforce found themselves with income reductions ranging from 25% to 50%. The pandemic reduced consumer purchasing power due to an increase in the unemployment rate in 2020, as well as an income reduction for many in the publishing industry, resulting in the implementation of significant belt-tightening measures.[††††]

    Types of Publishers in the Philippines

    AS DEFINED BY THE RULES and Regulations on Online Registration and Accreditation by the National Book Development Board (NBDB) of Persons and Enterprises Engaged in Book Publishing and Its Related Activities[‡‡‡‡], a book publisher is an entity who is in the business of and/or supervises the process of choosing or making books and ensures that these are made available to all or specific publics.

    These can be classified as follows:

    Commercial Book Publisher—An entity, group, or association, engaged in the publication of books in the ordinary course of trade or business, in order to make a profit.

    University/Academic Press—This refers to an academic institution-based publisher

    Independent Publisher—An enterprise in the business of book publishing, that is not part of a bigger institution such as a school, a religious organization, a research center, etc. It is documented separately from other institutions (for example, it has its own business permit, Income Tax Returns, and issues own Official Receipts). This may include but not be limited to Non- Government Organizations (NGOs) and Civil Society Organizations (CSO).

    Publishing House—A publisher within an institution (e.g., religious institutions, research centers, etc. other than an academic organization). If a press of an academic institution is named publishing house, then for NBDB that press is considered an academic press.

    Self-publisher—A person, entity, group or association who publishes media by its author without the involvement of an established publisher. The term usually refers to written media, such as books and magazines, either as an eBook or as a physical copy using POD (print-on-demand) technology.

    Government and Multilateral Organizations—Government refers to the governing body of a state, nation, or country while multilateral organizations refer to organizations which obtain their funding from multiple governments and spend it on projects in various countries. These organizations publish reports and researches, whether in print or electronic form.

    On Self-Publishing

    WHEN YOU SELF-PUBLISH, J.J. Herbert notes that you must pay a fee up front for the book's production and distribution[§§§§]. The book has a smaller distribution network, but you maintain complete creative control.

    The fact that you have more control over the process is the largest advantage. Self-publishing is the most secure approach to make sure you get to tell your tale, the way you want to do so. You have complete creative control when self-publishing, including layout, cover design, and other aspects.

    However, the difficulty lies in getting greater bookstore visibility. While bookstores favor books that are recommended by traditional publishers (particularly as part of nationwide campaigns), self-published authors can secure bookstore shelf spacing by working on getting connections and setting means to promote their books.

    In the Philippines, there is bookstore display preference for books published by commercial book publishers, university/academic presses, and publishing houses as these have established distribution, inventory, marketing, and promotion systems.

    BIBLIOGRAPHY

    Anjum, Aliya. The Freelance and Gig Economy. Daily Times. July 07, 2022. https://dailytimes.com.pk/963630/the-freelance-and-gig-economy/.

    The ASEAN Post Team. Philippines’ Thriving Gig Economy. The ASEAN Post. September 26, 2020. https://theaseanpost.com/article/philippines-thriving-gig-economy/.

    Cohen, Nicole. Writers’ Rights: Freelance Journalism in a Digital Age. Montreal and Kingston: McGill-Queen’s University Press, 2016. 

    Department of Information and Communications Technology (DICT). E-Government Master Plan 2022. ICT Knowledge Portal. June 24, 2019. https://dict.gov.ph/ictstatistics/launching-of-the-e-government-masterplan-2022.

    Department of Trade and Industry‒Competitiveness and Innovation Group (DTI‒CIG). House of Representatives. House Special Committee on Creative Industry and Performing Arts. The State of Philippine Publishing and Print Media Industry‒First Inquiry on House Resolution 2137. 19th Cong., 1st sess. September 16, 2021.

    Ibañez, Jenina P. Philippine Freelancers Discover New Income During Pandemic. Business World. October 05, 2021. https://www.bworldonline.com/top-stories/2021/10/05/401168/philippine-freelancers-discover-new-income-during-pandemic/.

    J.J. Hebert. Self-Publishing Versus Traditional Publishing: Pros And Cons For Leaders To Consider. Forbes. August 15, 2022. https://www.forbes.com/sites/forbesbusinesscouncil/2022/08/15/self-publishing-versus-traditional-publishing-pros-and-cons-for-leaders-to-consider/.

    Mapa, Dennis S. Unemployment Rate in August 2021 is Estimated at 8.1 Percent. Philippine Statistics Authority. September 30, 2021. https://psa.gov.ph/content/unemployment-rate-august-2021-estimated-81-percent/.

    National Book Development Board (NBDB). Reboot and Recalibrate: The Book Publishing Industry Roadmap 2021. Quezon City: National Book Development Board, 2022. 

    National Book Development Board (NBDB). Rules and Regulations on Online Registration and Accreditation by the National Book Development Board (NBDB) of Persons and Enterprises Engaged in Book Publishing and Its Related Activities. Quezon City: National Book Development Board, 2021.

    Ofreneo, Rene E. Rise of Freelance Work Force. Business Mirror. August 16, 2018. https://businessmirror.com.ph/2018/08/16/rise-of-freelance-work-force/.

    Samson, Martin Luigi. Workers’ Rights in the Philippine Gig Economy. Asia Business Law Journal. November 10, 2021. https://law.asia/workers-rights-philippine-gig-economy/.

    United Nations Educational, Scientific and Cultural Organization (UNESCO). Cultural and Creative Industries in the Face of Covid 19: An Economic Impact Outlook. UNESDOC Digital Library. 2021. https://unesdoc.unesco.org/ark:/48223/pf0000377863.

    What is Copyright?

    Lovelle G. Almazar

    Writing is its own reward. —Henry Miller[*****]

    Almost anyone can be an author; the business is to collect money and fame from this state of being. —A. A. Milne[†††††]

    W

    hich of the two statements above do you subscribe to? Learning about copyright just might help you decide and perhaps even help you form your own philosophy on the art and business of being a writer. This chapter will introduce you to some basic concepts, terms, and definitions that you should know to understand copyright better as a writer. 

    1.  What is copyright?

    IN MY JOB AS A TEXTBOOK editor, part of my responsibilities is to ensure that all borrowed works that are included in the manuscript I am editing either have the needed permit for use or are free to use because they are taken from the public domain. For example, if a poem by another author was included in an English for College Freshmen manuscript that I am editing, I have to check if the writer of the manuscript was able to get permission from the author of the poem before I can allow it to remain in the manuscript and see print. If no permission was sought, I could help the writer get the necessary permit by contacting the poem’s author. If we are not able to secure a permit either because the poem’s author cannot be located or if the fee for the permit to use the poem is too steep for our budget, then we’d have no other choice but to remove the poem from the manuscript. If, however, we aren’t too careful and the manuscript was published with the unlicensed poem still in it, then we have violated the copyright of the poem’s author and we might be penalized in accordance with the Philippine Intellectual Property Code. 

    Copyright is the legal protection in the form of exclusive rights given to authors of original literary, scholarly, scientific, and artistic works. This protection is vested from the moment an original work is created and lasts beyond the lifetime of the author or plus 50 years after the author’s death. Thus, the protection is long enough for authors and their heirs to enjoy different benefits from the work. Copyright protection is also granted regardless of the work’s content, quality, and purpose. The ideas presented may or may not be completely unique, but their final form or arrangement should be the original work of the writer. An original work means that the writer used their own skill, style, labor, and judgement to express their ideas to form a creative work, and nothing in it has been copied from somebody else’s work. A poem is an example of a creative work that is protected by copyright. Thus, even if it is just a one-stanza poem, its author has the right to prevent others from reprinting such a poem in the same way that the author can also let others reprint or use the poem, either for a fee or for free. What matters is that the right to decide on what to do with the creative work rests solely with the author unless they transfer or assign that right to another person or organization. Furthermore, whether one writes as a hobby or as a profession, and whether the resulting work is a masterpiece or needs more refining, such writing will still enjoy copyright protection. 

    2.  Why is copyright important? 

    SOCIETIES HAVE LONG known the value that artistic and literary creations can contribute to man’s personal growth as well as national advancement and cultural development. Copyright laws are thus designed to protect and incentivize authors and encourage them to produce more work. In the United States, a national copyright system was established to promote the Progress of Science and useful Arts, by securing for limited Times to Authors...the exclusive Right to their...Writings[‡‡‡‡‡]. Similarly, in the Philippines, Sec. 2 of RA 8293 declares that The State recognizes that an effective intellectual and industrial property system is vital to the development of domestic and creative activity, facilitates transfer of technology, attracts foreign investments, and ensures market access for our products.[§§§§§] Through copyright, authors are assured of control over their works. The copyright owner can also invoke the law and put the enforcement of mechanisms or legal remedies in motion to punish anyone who infringes upon his or her copyright. If anybody can just copy, modify, or claim ownership over someone’s creation, confusion might ensue, especially with identifying the rightful source of a certain literary work or expression. With copyright protection, the authors will have the confidence to continue writing and sharing to the public their artistic and literary pieces that can educate and inspire humanity not only during the authors’ lifetime, but for the years to come.

    3.  What are the exclusive rights that copyright owners get to enjoy?

    COPYRIGHT GIVES AN assortment of rights that are classified into two types: economic rights and moral rights. Economic rights give the author the exclusive right to profit from their works and, in the same vein, prevent or allow others to earn from such works. For writers, economic rights include the following activities:

    the first public distribution of copies of the work and the sales derived from them. This is the Doctrine of First Sale (also known as the principle of exhaustion). However, once a copy has been sold, like a book, for example, the new owner may resell the copy but cannot make any further copies for selling nor create any other works based on it without permission from the

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