A clear understanding of publishing rights is essential for authors, illustrators, software developers, businesses, and anyone involved in licensing creative content. Publishing rights refer to the legal permissions granted to another party for the use, reproduction, or distribution of creative content.
This article, prepared by our publishing book lawyers, explains key drafting tips to ensure your publishing licence protects your rights and suits your business needs.
Key Takeaways
Know the difference between exclusive and non-exclusive publishing rights.
Clearly define who can use your work, for what purpose, and for how long.
Specify scope, media formats, and territories.
Set a fixed term and clear renewal conditions.
Include clauses for transfer, sublicensing, and termination to maintain control.
Publishing Rights Explained
Publishing rights give another party legal permission to use, reproduce, or distribute a work, such as text, images, software, or music.
Exclusive publishing rights mean only one party (the licensee) can use the work as specified in the agreement, while non-exclusive rights allow several parties, including the creator, to use the work at the same time.
See our article on the differences between a non-exclusive and exclusive licence and its commercial and legal implications.
Crafting Smart and Secure Publishing Agreements
When negotiating a publishing licence, clearly define the scope, duration, and limitations of use to protect your work.
As a guideline, consider the following drafting considerations:
1. Scope
Say exactly what the licensee may do (publish, reproduce, adapt, distribute, communicate online), where they may do it (territory and language), and how (media, format, platform, edition, and purpose). Spell out the exclusions you intend to keep.
For example, perhaps an audiobook only as opposed to print, serialisation in your newsletter, merchandising, courseware, or public readings.
2. Term
Lock down the term and how it renews. Use a fixed duration (e.g. 12 or 24 months)
3. Transfer and Sublicensing Considerations
Be explicit about transfer and sublicensing.
If you permit either, require your prior written consent, limit it to specific, named partners (for example, print-on-demand providers, audiobook producers, or platform distributors), and make the licensee liable for sublicensee breaches.
Include a change-of-control clause so your consent is required if the licensee is sold and your rights would otherwise travel to a new owner by default.
4. Termination
Include clear termination triggers. Your publishing rights should automatically revert when the:
term ends; or
licensee fails to publish by an agreed date.
Define material breaches and their remedies.
5. Moral Rights
Don’t overlook moral rights, credit and approvals. In Australia, creators have moral rights to attribution and integrity. The contract should lock in credit line wording, placement (e.g. title page or caption).
6. Governance and Warranties
Include warranties that confirm the work is original and does not infringe others’ rights. This protects both creator and licensee and helps prevent future disputes.
Common Mistakes When Drafting Licence Agreements
Many creators and businesses overlook key clauses when negotiating publishing licences. Common mistakes we see include:
Not defining usage rights clearly: Failing to specify where, how, and by whom the work can be used leads to disputes.
Leaving renewal terms open-ended: This can lock you into unfair arrangements or cause confusion when contracts expire.
Ignoring digital rights: In today’s market, you must include rights related to digital distribution, AI use, and online sharing.
Forgetting about termination triggers: If a licensee doesn’t publish your work, your rights should automatically revert to you.
Not seeking legal advice: Small drafting errors can have big legal and financial consequences.
To learn more about the key legal principles that govern the publishing industry, read our guide on 5 Things You Should Know About Publishing Law.
Case Study: Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd
In the case of Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd [2010] FCA 984 (Fairfax Media) alleged copyright infringement by LexisNexis for reproducing headlines and summaries through its ABIX service.
The Federal Court found that individual headlines were too short to be protected as literary works and that ABIX’s summaries did not copy a substantial part of the articles.
Ultimately, the Court held that there was no copyright infringement.
Key legal takeaway: Your publishing agreements should explicitly cover the use of headlines, abstracts, and summaries. Without clear contractual terms, enforcing rights over repurposed content can be difficult in today’s digital publishing landscape.
Frequently Asked Questions
What is the ideal term length for a publishing license?
A fixed duration such as 12 or 24 months is recommended to provide clarity and predictability for both parties.
How should transfer and sublicensing be handled in a licensing agreement?
Transfers and sublicensing should require prior written consent, be restricted to named partners, and include liability for breaches by sublicensees
What happens when the licensee fails to publish by a specified deadline?
Publishing rights should automatically revert to the creator if the licensee fails to publish within the agreed timeframe.
Why are moral rights and credit important in a publishing license?
They ensure creators receive proper attribution and their work’s integrity is maintained, which may be legally required in some jurisdictions.
When should you seek legal advice regarding publishing licenses?
If you are unsure which licensing model suits your goals, consult a legal professional before finalising the licensing agreement.
