Architectural designs and plans are a valuable commodity in the building and construction industry. With technology facilitating the seamless reproduction, transformation and dissemination of printed and digital material, architects should be vigilant in protecting their original creations and their livelihoods.
This article provides an overview of copyright law in Australia and explains how architects may take steps to protect their original works from copyright infringement.
Application of copyright law to architectural designs
Federal copyright protection was introduced in Australia in 1905 and has since evolved into the Copyright Act 1968 (Cth) which is currently in force. This Act includes broad categories of subject matter benefiting from its protection, to keep pace with emerging technologies.
The subject of copyright material comprises ‘artistic works’ or ‘forms of expression’ rather than ‘ideas, information or facts’ – that is, the actual production of work in a material form, rather than a mere idea or thought.
Architectural drawings and designs (whether sketched or generated with software), models of buildings and the buildings themselves all fall within the category of ‘artistic works’ and are therefore protected by copyright law. An architect will also have copyright over plans drawn from ideas or instructions received from a client, as they have been produced and expressed in a material form.
What is copyright infringement?
The owner of copyright work has an exclusive right to reproduce it in material form, publish the work and communicate it to the public.
Infringement of copyright occurs when a person does anything that constitutes the exercising of these rights, or the authorising of another person to do so without permission of the owner.
Essentially, the creator of the work should have control over its commercial exploitation including licensing the use of the work to a third party.
To prove infringement, there must be a fundamental link between the original work and the copy. This link can often be established where an infringing party has seen or had access to the original work.
The alleged reproduction of the work must be in a material form with an objective similarity between the original and copy. The objective similarity need not relate to an entire work provided a substantial part of it is reproduced.
In copyright cases concerning architectural drawings and plans, the reproduction of unique, distinctive or important design aspects can be influential in determining whether the work has been infringed.
Protecting plans from infringement – service agreements
Because copyright subsists in an original creation, such as architectural drawings and designs, there is no requirement (or method) to register the work with an authority to obtain the protection of copyright law. This makes the process appear simple, however it opens the door to disputes over who is the original creator of the work.
Architects can be proactive in protecting their original work by ensuring that a service agreement is entered into by every client who retains their services.
The agreement should set out the terms of retainer, the parties’ respective rights and their respective responsibilities. It should also include provisions regarding intellectual property rights and the licensing of the work created by the architect.
A licence may be exclusive or non-exclusive.
Generally, a service agreement will provide that an architect retains ownership in the copyright of their work but allow for the licensing of the work created to the client who has paid for it.
An exclusive licence will allow the client of the architect (the licensee) to exercise the rights to the exclusion of all others. This means that the licensee may take action against others for infringing the copyright and using the material, including action against the original creator of the work.
A non-exclusive licence limits the use of the material by the client (licensee) in accordance with the terms negotiated and contained in the agreement. A non-exclusive licence will enable the architect to continue to use the works and allows the architect to grant further non-exclusive licence rights to other parties. This may be appropriate if an architect intends to reuse the work elsewhere.
If there is no service agreement or if an agreement is silent as to the assignment of copyright, the law generally recognises an implied licence for the benefit of a client who has commissioned the architect for a certain purpose, such as the production of plans for a specific site.
The extent of the implied licence will depend on the circumstances. However, it is generally limited to one-off use of the plans on the site for which they were designed.
The recognition of an implied licence may leave an architect vulnerable in circumstances where the relationship between the architect and client breaks down and the retainer is terminated. A written agreement with provisions stating that any implied or express licence will be revoked, and that the agreement is terminated in the event that the client refuses to pay the architect for the services, should help to protect the architect in such circumstances.
Other steps to protect copyright works
In addition to having a service agreement in place before commencing work, there are other steps architects can take to protect their designs.
Copyright notices and the copyright symbol “ © ” should be placed in prominent positions on all original work.
When giving sample drawings and designs to potential clients, architects should also provide a written warning stating that allowing access to the plans does not constitute an implied licence to use them, and that copyright remains at all times with the original creator.
Architects can also keep original drafts, drawings and references tracking the production of their work, and any other information such as commencement dates, instructions, notes and communications, that all may assist in proving the work’s originality, should this become necessary.
Remedies for infringement
Proceedings for copyright infringement may be instigated in the Federal Court or the Federal Circuit Court.
Remedies include an injunction (restraint) which prevents the immediate and future use of the copyright material by the infringing party, an award of damages for financial loss, or an account of profits requiring the infringing party to forward all profits made from the material to the owner or licensee. The infringing party may also be ordered to pay legal costs.
When calculating damages, the Court may consider the infringing party’s conduct and whether it was deliberate or reckless, the benefit accrued to the infringing party and the need to deter others. Exemplary damages, which are additional damages, may be awarded for conduct that is flagrant and deliberate.
Copyright laws acknowledge that creators of original material should receive legal recognition and reward for their efforts and that third parties should not benefit unlawfully from a creator’s work.
Although copyright subsists for the benefit of the creator of an original work, architects must be proactive in protecting and enforcing these rights.
Builders should also be cautious when requested to work with clients who bring ‘their own’ architectural designs to be used in a proposed building project to ensure that use of the design has been authorised.
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