In Australia’s creative industries, publishing rights determine how literary, artistic, and digital works are distributed and reproduced under the Copyright Act 1968 (Cth). These rights define the legal relationship between creators and publishers – deciding who can use a work, how, and under what conditions.
One of the most important distinctions in copyright licensing is between exclusive and non-exclusive publishing rights.
In this article, our publishing lawyers at Prosper Law explain the difference between exclusive and non-exclusive publishing rights under Australian copyright law.
Key Takeaways
- Exclusive publishing rights grant sole usage to one licensee, preventing others, including the creator from using the work
- Non-exclusive rights allow multiple parties to use the work simultaneously (including the creator)
- Exclusive agreements often involve higher fees and longer commitments
- Non-exclusive licences offer greater flexibility and broader reach
- The choice impacts your ability to reuse, resell, or republish the work
- Licensing terms must be clearly drafted to avoid legal disputes
Exclusive vs Non-Exclusive Rights: The Basics
Under the Copyright Act 1968 (Cth), publishing rights are permissions a creator gives to someone else to use, sell, or share their work (for example, a book, photograph, or music).
Publishing rights are generally classified into two main categories:
Exclusive Publishing Rights
An exclusive publishing license gives one licensee the sole right to publish or use a work within a defined scope – such as a specific territory, format, or time period. During that time, the creator cannot use the work themselves or grant permission to others.
Common uses for Exclusive Licences:
Traditional book publishing
Film and television adaptation rights
Software and app distribution
Franchise and brand partnerships
Because exclusivity eliminates competition, these licences typically attract higher fees, advance payments, or guaranteed marketing commitments.
Legal Tip: Exclusivity must be carefully drafted to specify the scope, duration, and format – otherwise, disputes can easily arise.
Non-Exclusive Publishing Rights
A non-exclusive licence allows multiple parties to use the same work at once, including the creator. This provides flexibility and broader exposure across different platforms and markets.
Ideal scenarios for Non-Exclusive Licences:
Licensing stock photos or digital templates
Republishing blog or media content
Multi-platform content distribution
Self-publishing alongside third-party arrangements
While each individual licence may yield lower fees, creators retain the ability to monetise their work across multiple channels, often achieving broader visibility and long-term value.
Exclusive vs Non-Exclusive: Control and Commercial Impact
When deciding which licence to grant, consider the balance between control and commercial opportunity.
| Factor | Exclusive Licence | Non-Exclusive Licence |
|---|---|---|
| Control | Full control by one licensee | Shared control across parties |
| Income Potential | Higher per deal | Lower per deal, broader reach |
| Risk | High (dependence on one partner) | Low (diversified partnerships) |
| Flexibility | Limited | High |
| Best For | Major publishing or adaptation deals | Digital and creative content |
Tip: To protect your brand, clearly define territory, format, duration, and usage limits in writing – and always ensure attribution is required.
Case Study: Realestate.com.au Pty Ltd v Hardingham; RP Data Pty Ltd v Hardingham [2022] HCA 39
In Realestate.com.au Pty Ltd v Hardingham; RP Data Pty Ltd v Hardingham [2022] HCA 39, a photographer supplied images to real estate agencies. These agencies uploaded the content to realestate.com.au (REA) and allowed sublicensing to RP Data.
The photographer later argued that this went beyond his permission, claiming the licence only covered active campaigns. The High Court disagreed, finding there was an implied, non-exclusive licence allowing such use – based on conduct and industry practice.
Lesson: Even without a written agreement, conduct can imply a licence. To avoid misunderstandings, always have written, clearly defined licensing terms.
Legal Tips: Drafting Publishing Rights Agreements
When drafting or reviewing a publishing rights agreement in Australia:
Define the scope: Territory, language, format, and duration.
State the licence type: Exclusive or non-exclusive.
Include usage restrictions: For example, no sublicensing without consent.
Set clear payment terms: Fees, royalties or advances.
Protect moral rights: Moral rights ensure attribution and integrity of the work.
Get it in writing: Required for enforceability of exclusive licences.
To learn how to structure your licence terms effectively, explore our detailed guide on drafting licence agreements in Australia.
Frequently Asked Questions
Can I still use my work after granting exclusive rights?
No, not during the licence term. The exclusive licensee holds sole rights within the agreed scope.
Can I sell the same work to multiple publishers?
Yes, but only if you grant non-exclusive rights, or after an exclusive licence expires or is limited to specific formats
Is a licensing agreement the same as assigning copyright?
No. A licence allows someone else to use your work, while an assignment permanently transfers ownership.
Do licensing agreements need to be in writing?
Exclusive licences must be in writing and signed under Australian copyright law. Non-exclusive licences can be oral or implied, but written terms are always recommended to avoid disputes.
If you’re preparing to publish your own work, read our comprehensive guide on how to publish a book in Australia.
Can I make the licence exclusive by language rather than country?
Yes. Language-limited rights are common (e.g., exclusive English-language rights), However it is important to define how that applies to multi-lingual markets.
