Australian freelancers own the copyright in work they create by default — the Copyright Act 1968 (Cth) gives copyright to the author, not the commissioning party. But this default is routinely overridden by contract. Many Australian client contracts include sweeping IP assignment clauses that transfer far more than clients actually need. Understanding the difference between a reasonable IP clause and an overreaching one before you sign protects both your work and your livelihood.
What is a IP Ownership?
Under the Copyright Act 1968 (Cth), copyright vests automatically in the creator upon creation of an original work. For employees, works created in employment belong to the employer (section 35(6)). For independent contractors and freelancers, the default is that the freelancer owns the copyright — even if they were specifically commissioned to create the work (unlike the former common law commissioning rule that was removed in 1998). Client contracts routinely include IP assignment clauses to transfer copyright in deliverables. The scope of these clauses varies significantly.
Red flags to watch for
Broad language can sweep up your pre-existing tools, templates, frameworks, and code libraries. You should only assign copyright in the specific deliverables agreed, not your background IP.
If the contract states IP transfers upon creation or delivery, you lose your most important leverage: the ability to withhold delivery of the final product until you're paid. Always negotiate for IP transfer upon full payment.
An assignment that extends to 'all derivative works' or future improvements can prevent you from building on your own work for other clients — effectively giving the client a lock on your methodology.
Under the Copyright Act 1968, creators have moral rights including the right of attribution and the right of integrity. A contract that ignores moral rights entirely — or attempts to waive them broadly — is worth scrutinising.
If the contract includes broad confidentiality obligations with no carveout for portfolio use, you may be contractually prevented from showing the work to future clients.
Your legal rights
Copyright in Australia is governed by the Copyright Act 1968 (Cth). For independent contractors, copyright vests in the creator unless a valid written assignment transfers it. An assignment must be in writing and signed to be effective. Moral rights (Part IX of the Act) cannot be transferred — only consented to or waived. If a contract clause is unconscionable (e.g., capturing far more than the client paid for or needs), it may be challengeable under the Australian Consumer Law or general contract principles.
Questions to ask before you sign
- 1Does the IP assignment cover only the agreed deliverables, or all work arising from the engagement?
- 2Does it include my background IP — tools, templates, or frameworks I bring to the project?
- 3When does IP transfer — on creation, delivery, or on full payment?
- 4Does the contract acknowledge my moral rights, and am I being asked to consent to their infringement?
- 5Is there a carveout allowing me to use the work in my portfolio?
Disclaimer: This guide is for educational purposes only and does not constitute legal advice. Contract law varies by jurisdiction and individual circumstances. Always consult a qualified legal professional before making decisions based on this information.