Publishing Lawyers Adelaide: Book and E-book Publishing Agreements, Royalties, Rights and Self-Publishing
Book and e-book publishing agreements in South Australia
A publishing agreement decides which rights in a book the publisher takes and what the author is paid for them. Talon Legal reviews and drafts book and e-book publishing agreements for Adelaide authors, illustrators, co-authors, ghostwriters and small publishers, and advises authors who publish their own work. Book a same-day free 30-minute consultation or call (08) 7094 2021.
Publishing agreement key facts
| Issue | Position in South Australia |
|---|---|
| Who owns the manuscript | The author, unless it was written under a contract of service (Copyright Act sections 35(2) and 35(6)). |
| Assignment | No effect unless in writing signed by or on behalf of the assignor; can be limited by acts, place or period (section 196(2) and (3)). |
| Exclusive licence | In writing, signed by or on behalf of the owner, and to the exclusion of all others (section 10(1)). |
| Books not yet written | A signed assignment of future copyright vests when the work comes into existence (section 197(1)). |
| Moral rights | Attribution and integrity stay with the author and cannot be assigned (sections 193, 195AI and 195AN(3)). |
| AI-generated text | No copyright where a computer performs the functions of a human author (Telstra v Phone Directories, Perram J at [118]). |
| Unfair terms | Void in a standard form consumer or small business contract (ACL section 23(1)). |
| Legal deposit | A copy to the National Library within 1 month of publication; online material only on request. Penalty: 10 penalty units (sections 195CB to 195CD). |
| First step | Same-day free 30-minute consultation. Call (08) 7094 2021. |
Need a publishing lawyer in Adelaide?
Our publishing lawyers in Adelaide act for authors, illustrators, co-authors, ghostwriters, small publishers and self-publishers. The Copyright Act 1968 (Cth) decides who owns a manuscript, how rights pass and what moral rights protect. The Australian Consumer Law (ACL), in Schedule 2 of the Competition and Consumer Act 2010 (Cth), controls unfair terms and the claims publishing services make. This page states the law current to 7 November 2026.
This guide is part of our media and entertainment practice. Related guides cover script options and adaptation rights, photography terms and conditions and online sales terms and consumer law.
Authors who use AI tools in a manuscript, and illustrators who use AI images, can see our guide to AI-generated content and copyright.
Free Consultation. Send us the publishing agreement before you sign it. Book a same-day free 30-minute consultation or call (08) 7094 2021.
On this page
- What should a publishing agreement cover?
- Does the author assign copyright or grant a licence?
- Which formats, territories and languages?
- Who owns the manuscript, and what about co-authors and ghostwriters?
- Is a book written with AI protected by copyright?
- What moral rights does an author keep?
- How should advances, royalties and reversion work?
- Do unfair contract terms rules apply to publishing contracts?
- What should self-publishers check?
- What is legal deposit?
- How similar matters tend to play out
- How we act on publishing agreements
- Case law
- Frequently asked questions
What should a publishing agreement cover?
The rights the publisher takes and what it pays for them. A book or e-book publishing agreement, sometimes called an author agreement, usually deals with:
- the manuscript, its length and the delivery date;
- what the publisher may do with it, in which formats, territories and languages, and for how long;
- editing, the title, the cover and the author’s approvals;
- the advance, royalty rates and base, statements and audit;
- warranties and indemnities about originality, defamation and privacy;
- options on future books and limits on competing works;
- out of print, reversion and termination;
- credit, moral rights and the use of AI tools.
Most of these terms can be negotiated. A publishing contract lawyer reads the grant of rights first, because the rest of the agreement depends on it.
Does the author assign copyright or grant a licence?
Either, and the difference matters. Copyright is personal property that can pass by assignment (Copyright Act section 196(1)). An assignment transfers ownership. It may be limited to one or more classes of the exclusive acts, to a place in or part of Australia, or to part of the copyright period (section 196(2)), and it has no effect unless in writing signed by or on behalf of the assignor (section 196(3)).
A licence leaves ownership with the author. An exclusive licence is a licence in writing, signed by or on behalf of the owner or prospective owner, authorising the licensee to the exclusion of all others (section 10(1)). Except against the owner, an exclusive licensee has the same rights of action as if the licence were an assignment (section 119). A non-exclusive licence leaves the author free to grant licences to others.
For a literary work, the exclusive rights include reproducing it in a material form, publishing it, performing it in public, communicating it to the public and making an adaptation (section 31(1)(a)). A good grant names the acts it covers; “all rights” takes every one.
An assignment can reach a book not yet written. Where an agreement signed by or for the prospective owner purports to assign future copyright, the copyright vests in the assignee when the work comes into existence, if the assignee would be entitled to it as against everyone else (section 197(1)). Option and multi-book clauses deserve a close read for that reason.
Which formats, territories and languages?
Only those the agreement grants, so it should list them: print, e-book and audio, the territories, and English or translation rights. Under the Act, an assignment may be limited to a place in or part of Australia (section 196(2)), and a licence can define its own territory.
Adaptation rights are separate. Making an adaptation is an exclusive right (section 31(1)(a)(vi)), and for a novel an adaptation includes a version in dramatic form, a translation, and a version conveying the story solely or principally by pictures, such as a graphic novel (section 10(1)). An author can keep film and stage rights and grant them separately; the script options and adaptation rights guide covers those deals.
Audio needs its own words. A literary work is reproduced in a material form when a sound recording is made of it (section 21(1)). A reading of a literary work is a live performance, whether or not an audience is present (section 22(7)), and the performers are among the makers of a sound recording of a live performance (section 22(3A)). Where the recording is commissioned for valuable consideration, the commissioning person owns it absent an agreement to the contrary (section 97(3)). The narrator’s agreement should still say who owns the recording.
Who owns the manuscript, and what about co-authors and ghostwriters?
The author, from the moment it is written. The author of a literary work owns the copyright, subject to section 35 (section 35(2)). Copyright subsists in an original unpublished literary work whose author was a qualified person when it was made, with no registration condition (section 32(1)). A literary work made under a contract of service or apprenticeship belongs to the employer (section 35(6)), unless the parties agree otherwise (section 35(3)).
A commissioned book is not like a commissioned wedding photograph. Section 35(5) covers only private or domestic photographs, painted or drawn portraits and engravings, so a business that pays a freelance writer for its company history does not own the copyright unless the writer assigns it in writing (sections 35(2) and 196(3)).
Co-authors should sign their own agreement before the publishing contract, settling how income is shared, who decides on edits and offers, whether either may write a sequel, and who can sue an infringer.
A ghostwriter is the author of what they write, so the client needs a written assignment signed by the ghostwriter (section 196(3)), which can be signed before the book is written (section 197(1)). Publishing the book under the client’s name also engages the ghostwriter’s right to be identified and the right not to have authorship falsely attributed (sections 195AO and 195AP), so the agreement needs the ghostwriter’s written consent (section 195AWA). False attribution needs no intention (Meskenas v ACP Publishing at [31]).
Is a book written with AI protected by copyright?
Only to the extent a human author shaped it. In Telstra Corporation Ltd v Phone Directories Company Pty Ltd [2010] FCAFC 149, Perram J said the author of a computer-generated work will ordinarily be the person in control of the tool, if that person can be seen as directing or fashioning the material form, and that where a computer performs functions ordinarily performed by human authors, copyright does not subsist ([118]). Yates J said originality requires that the work originate from an author or authors, a question of fact and degree ([169]).
Text a tool produces from a short prompt is exposed under that reasoning. Text the author drafts and rewrites stands on firmer ground. Any warranty about AI use should be answered accurately, because it decides who carries the risk. The agreement should also say whether the publisher may use the manuscript to train AI systems; converting a work into digital form is itself a reproduction (section 21(1A)).
What moral rights does an author keep?
Attribution and integrity, whoever owns the copyright. An author has a right of attribution of authorship (section 193(1)) and a right not to have the work subjected to derogatory treatment (section 195AI). Only individuals have moral rights (section 190), and they are not transmissible by assignment (section 195AN(3)).
For a literary work, derogatory treatment means anything resulting in a material distortion, mutilation or material alteration that is prejudicial to the author’s honour or reputation, or anything else done in relation to the work that is prejudicial to the author’s honour or reputation (section 195AJ). Heavy cuts or an altered ending can raise the point.
In Perez v Fernandez [2012] FMCA 2, a DJ overlaid a promotional recording of an artist’s voice onto the artist’s song, making it appear the DJ was a subject of the song ([84]). Driver FM held the treatment prejudicial ([85] to [88]), and actionable without proof of damage because the Act requires only that the treatment is prejudicial ([95] to [97]).
A moral rights consent should be read closely. For works other than films, an act within a written consent genuinely given by the author does not infringe, if the consent relates to specified acts or classes of acts and specified works (section 195AWA). An author can limit the consent to ordinary editing and design and keep the right to be named. A consent obtained by duress or knowingly false or misleading statements has no effect (section 195AWB).
How should advances, royalties and reversion work?
As the agreement says, so the detail matters. The money terms should settle:
- whether the advance is recouped from royalties only, or repayable if the book is not delivered or published;
- the royalty base for each format, such as the recommended retail price or the publisher’s net receipts;
- reserves held against returns, and when they are released;
- statement periods, payment dates and the author’s right to audit;
- whether earnings on one book can be set off against an unearned advance on another.
A claim for unpaid royalties is a claim in contract. Where South Australian law applies, an action founded on a simple contract must be commenced within six years after the cause of action accrued (Limitation of Actions Act 1936 (SA) section 35).
Reversion clauses return rights when the book stops earning. An out of print clause should define the trigger by sales or availability in each format, because an e-book or print on demand edition can keep a book technically available indefinitely. It should set a notice process, say which rights revert, and deal with licences already granted to others. An option on the next book is best limited to a first look within a set period.
Do unfair contract terms rules apply to publishing contracts?
They can. A term of a consumer or small business contract is void if it is unfair and the contract is a standard form contract (ACL section 23(1)). A contract for a supply of goods or services is a small business contract if a party makes it in the course of a business employing fewer than 100 persons, or had turnover under $10,000,000 in its last income year (section 23(4)). Authors and small publishers will often meet that test, though whether a given publishing agreement is a contract for a supply of goods or services turns on its terms.
A contract alleged to be standard form is presumed to be so unless proved otherwise (section 27(1)), and it may be one even though the author could negotiate minor or insubstantial changes (section 27(3)(a)). A term is unfair if it would cause a significant imbalance in the parties’ rights and obligations, is not reasonably necessary to protect the legitimate interests of the party it advantages, and would cause detriment if relied on (section 24(1)). The publisher must prove a term is reasonably necessary (section 24(4)).
Examples of terms that may be unfair include a right for one party only to terminate, to vary the terms, or to decide whether the other is in breach (section 25(b), (d) and (h)). In ACCC v JJ Richards & Sons Pty Ltd [2017] FCA 1224, the Court accepted that an unlimited indemnity, applying even where the loss was not the customer’s fault, caused a significant imbalance (JJ Richards at [56](g)). An author indemnity covering any alleged claim raises the same issue.
Since 9 November 2023, making a standard form contract containing an unfair term the business proposed, or applying or relying on one, is a contravention (section 23(2A) and (2C)). The maximum penalty is $2,500,000 for an individual and, for a body corporate, the greater of $100,000,000 and amounts based on the benefit or turnover (section 224(3) and (3A)).
What should self-publishers check?
What the service promises, and what the author keeps. The ACL applies to what self-publishing services and hybrid publishers say. A person must not, in trade or commerce, engage in misleading or deceptive conduct (ACL section 18(1)), or make false or misleading representations about the standard or quality of services, their benefits or their price (section 29(1)(b), (g) and (i)). A representation about a future matter, such as promised sales or bookshop distribution, is taken to be misleading if made without reasonable grounds (section 4(1)).
In ACCC v Employsure Pty Ltd [2021] FCAFC 142, the Full Court said the first impression of an advertisement will often decide what it represents ([98]), and accepted that a fleeting read is even more likely where the service advertised is free ([153]).
An author who pays for publishing services as a consumer has the guarantees of due care and skill and of fitness for any purpose made known (sections 60 and 61(1)), which a term cannot exclude (section 64). The author should keep the copyright, grant only the licence the service needs, and be able to end it and take the files.
Selling direct brings a retailer’s obligations. Printed books supplied to consumers must be of acceptable quality (section 54), and a refund policy must not misstate a buyer’s rights (section 29(1)(m)). In ACCC v Booktopia Pty Ltd [2023] FCA 194, the online bookseller accepted that its 2 business day notice term for faulty items represented that customers had to give that notice to have a remedy ([15], [18]), and a $6,000,000 penalty was ordered. The online sales terms and consumer law guide covers returns and digital products.
What is legal deposit?
A duty to give the National Library of Australia a copy of what is published. Persons publishing certain literary, dramatic, musical or artistic works in Australia must deliver copies to the National Library, which may also request works available online (Copyright Act section 195CA).
The material covered includes a book, periodical, newspaper, pamphlet, sheet of music, map, website or web page in which copyright subsists, in electronic form or otherwise, and not primarily audio-visual. A new edition counts only if it has new additions or alterations, and the same work in hardcopy and electronic form is the same material (section 195CE).
For material published other than online, a copy must be delivered within 1 month of publication, or by a later day the Director-General allows (sections 195CB(1) and 195CD(2)). Material available online, meaning communicated on the internet (section 195CF), need only be delivered if the Director-General requests it in writing. A request can come any time after publication, including through a web harvester (section 195CC), and the copy is then due within 1 month (section 195CD(2)).
The copy must be of the whole work, including illustrations, at the publisher’s own expense unless a request says otherwise, and an electronic copy must be free of any technological protection measure (section 195CD(1)).
Failing to deliver is a strict liability offence with a penalty of 10 penalty units (section 195CB). The scheme does not exclude or limit State or Territory laws requiring delivery to a State or Territory library of material published there (section 195CH), so those rules should be checked too.
How similar matters tend to play out
Illustrations of how the law on this page combines on ordinary facts, not predictions. Outcome depends on the documents, the evidence and the court.
Lower range. A first-time author grants a small digital publisher exclusive rights “in all formats, worldwide”, with no out of print clause. Two years later the publisher has stopped promoting the book, and the author wants to release a print edition. An exclusive licence operates to the exclusion of all others (section 10(1)), so without a reversion clause the usual way out is negotiation.
Middle range. A business owner pays a freelance writer to ghostwrite a memoir under a one-page email with no copyright terms, and the book appears under the owner’s name. The writer owns the copyright (section 35(2)), section 35(5) does not reach books, and nothing was assigned in writing (section 196(3)). Without the writer’s written consent, naming the owner as author risks infringing the writer’s right against false attribution (sections 195AP and 195AWA).
Upper range. An author pays a hybrid publisher for a launch package promising “national bookstore distribution”. The books are not stocked, and the contract lets the publisher change its terms at any time. The promise was a representation about a future matter, taken to be misleading if made without reasonable grounds (section 4(1)). In a standard form consumer or small business contract, a one-sided variation right may be unfair, and an unfair term is void (sections 23(1) and 25(d)).
How we act on publishing agreements
Our publishing lawyers act for authors, illustrators, co-authors, ghostwriters, small publishers and self-publishers. For an author, the aim is a grant that matches what the publisher will actually use, and a way to get the rights back. For a publisher, it is a contract that holds up when tested.
| Stage | What happens | What we do |
|---|---|---|
| Offer | A publisher or service sends its agreement. | Review the grant, the money, approvals, warranties and reversion. |
| Negotiation | The terms are discussed. | Propose changes and explain the trade-offs. |
| Collaboration | Co-authors, an illustrator or a ghostwriter are involved. | Draft agreements with written assignments and moral rights consents. |
| Publication | The book is released in print, e-book or audio. | Advise on narrator agreements, selling direct and legal deposit. |
| Dispute | Royalties go unpaid, rights do not revert or the work is misused. | Advise on audit, termination, reversion and infringement. |
We cannot promise an outcome, and no lawyer can. We can make sure the author knows what the agreement gives away before signing it.
Every hour matters. Book a same-day free 30-minute consultation, or call (08) 7094 2021 now.
Publishing agreement case law
None of the decisions below concerned a publishing agreement; each decided a point that applies to one.
| Case | Court | Principle | Pinpoint |
|---|---|---|---|
| Telstra Corporation Ltd v Phone Directories Company Pty Ltd [2010] FCAFC 149 | Full Federal Court | No copyright where a computer performs the author's functions | Perram J [118]; Yates J [169] |
| Meskenas v ACP Publishing Pty Ltd [2006] FMCA 1136 | Federal Magistrates Court | False attribution needs no intention | [18], [31] |
| Perez v Fernandez [2012] FMCA 2 | Federal Magistrates Court | Derogatory treatment is actionable without proof of damage | [84] to [88], [95] to [97] |
| ACCC v JJ Richards & Sons Pty Ltd [2017] FCA 1224 | Federal Court | An unlimited indemnity caused a significant imbalance | [56] to [58] |
| ACCC v Employsure Pty Ltd [2021] FCAFC 142 | Full Federal Court | Ads are judged by their first impression | [98], [153] |
| ACCC v Booktopia Pty Ltd [2023] FCA 194 | Federal Court | A notice deadline misstated consumers' rights | [15], [18] |
Case notes
Telstra Corporation Ltd v Phone Directories Company Pty Ltd [2010] FCAFC 149
Perram J said that where a computer performs functions ordinarily performed by human authors, copyright does not subsist ([118]). Yates J said originality requires that the work originate from an author or authors ([169]). The appeal was dismissed with costs.
Meskenas v ACP Publishing Pty Ltd [2006] FMCA 1136
A magazine attributed a photographed portrait to another painter ([1]). Raphael FM held that the reasonableness defence failed ([18]) and that “falsely” means objectively incorrect ([31]), and awarded the painter $9,100 under sections 195AO and 195AP.
Perez v Fernandez [2012] FMCA 2
A DJ overlaid a promotional recording of the artist’s voice onto the artist’s song ([1], [84]). Driver FM held the treatment prejudicial and actionable without proof of damage ([85] to [88], [95] to [97]), and awarded the author $10,000 for the moral rights infringement.
ACCC v JJ Richards & Sons Pty Ltd [2017] FCA 1224
Moshinsky J declared eight terms of a supplier’s small business standard form contracts unfair and void, accepting that the unlimited indemnity term, among others, caused a significant imbalance ([56]) and had not been shown to be reasonably necessary ([57] to [58]).
ACCC v Employsure Pty Ltd [2021] FCAFC 142
The Full Court held that search ads using government agency names conveyed a government affiliation Employsure did not have ([6]), and said the first impression will often decide what an ad represents ([98]).
ACCC v Booktopia Pty Ltd [2023] FCA 194
Booktopia accepted that its 2 business day notice term for faulty items represented that customers had to give that notice to have a remedy ([15], [18]). Burley J ordered a $6,000,000 penalty for the section 29(1)(m) contraventions.
Frequently asked questions
Should an author assign copyright or grant a licence to a publisher?
A licence limited to the formats and territories the publisher will use usually suits the author better. An assignment transfers ownership and has no effect unless in writing signed by the assignor (Copyright Act section 196(3)).
What is an exclusive licence?
A licence in writing, signed by or on behalf of the owner, authorising the licensee to the exclusion of all others (section 10(1)). A non-exclusive licence leaves the author free to grant licences to others.
Who owns a ghostwritten book?
The ghostwriter, as author, unless the copyright is assigned in writing signed by the ghostwriter (sections 35(2) and 196(3)). The ghostwriter’s written consent is also needed to cover moral rights (section 195AWA).
Can a publisher change a book without the author's agreement?
Only as far as the agreement and the author’s moral rights allow. Derogatory treatment prejudicial to the author’s honour or reputation infringes the right of integrity (sections 195AI and 195AJ), unless a written consent covers it (section 195AWA).
Is a book written with AI protected by copyright?
Only to the extent a human author directed or fashioned its form. Where a computer performs the functions ordinarily performed by human authors, copyright does not subsist (Telstra v Phone Directories, Perram J at [118]).
How does an author get rights back from a publisher?
Through the agreement’s reversion or termination clauses, or by negotiation. A clear out of print clause, defined by sales or availability in each format, is the author’s main protection.
Do unfair contract terms laws apply to publishing contracts?
They can, where the contract is a standard form consumer or small business contract, and an unfair term is then void (ACL section 23(1), (3) and (4)).
What should an author check before paying a self-publishing company?
What it promises and what rights it takes. A representation about a future matter, such as sales or distribution, made without reasonable grounds is taken to be misleading (ACL section 4(1)).
Do self-published books have to go to the National Library?
A book published in Australia other than online must be delivered within 1 month of publication (Copyright Act sections 195CB and 195CD). Material available online need only be delivered if the Library requests it (section 195CC).
Do I need a publishing lawyer?
Before signing a publishing agreement, yes. A publishing lawyer can check the grant of rights and the way to get them back before the author is bound. A free 30-minute consultation will tell you where you stand.
Related media and entertainment guides
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- Script options and adaptation rights
- Film and TV production agreements
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- Online sales terms and consumer law
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- Confidentiality agreements