Last edited 18 Sep 2020

Copyright of building design

Copyright is one of a number of rights that protect intellectual property. Copyright is the right of an author, artist or composer to prevent another person copying an original work. It applies to ‘work’ not to ideas. The right is given by the Copyright Designs and Patents Act 1988.

Its origins go back to the history of printing, but the first Copyright Act was passed in 1709. In 1911 protection under the Act was extended to cover architectural works, and in the 1941 case of Meikle v Maufe, an architect successfully sued their client for employing another architect to extend the Heals’ shop on Tottenham Court Road by replicating their design. In 1998, protection was extended to cover databases.

The test for copyright is one of originality, the bar for which is relatively low. It is an automatic right, that does not have to be registered, however it may require proof of who created the work and when. This can simply be a matter of record keeping, however, the inclusion of the copyright symbol, name and date can be useful in avoiding confusion, and the possibility of a person who infringes copyright arguing that they were unaware of the infringement.

Copyright protects drawings, diagrams, maps, charts, plans and models as well as actual buildings. Copyright extends for the lifetime of the creator, and a further 70 years from the end of the year in which they died (or the latest such date where it is a joint work). Copyright in a work of architecture is not infringed by making a representation of it, so for example photos can be taken.

Copyright will normally reside with the creator. So in the case of an architectural design, the copyright will reside with the architect who created it. However, where an architect is an employee, working in the course of their employment, then copyright will automatically reside with the practice that employs them. Practices must make a decision about whether they will allow private work to remain the copyright of an employee or whether this will be barred by the terms of employment, and must be careful when employing free-lance designers or agency staff to ensure that the terms of employment give the copyright in their work to the practice.

Copyright will remain with the creator not with the client, unless the appointment agreement states otherwise. Forms of appointment such as the RIBA Standard Form of Agreement generally give the client a license to use the design for the purposes it was intended provided that it relates to the site, or part of the site to which the design relates, and provided that any fees due have been paid. This can be varied by agreement to assign copyright to the client, but architects must be careful here to understand what they are assigning, for example does it prevent the future use of details that the architect has developed. Generally, they will still have the right to reproduce parts of a design in subsequent designs as long as they do not reproduce the main design.

Particular care should be taken in the case of designs that are created where a standard form of appointment has not been signed, for example in tender submissions or competition entries.

The appointment agreement (or terms implied into the agreement) will generally enable the client to use designs for the purpose for which they were intended. This might for example mean that planning drawings could be used to seek planning permission, but not to construct the works without the express permission of the architect. Generally reconstruction of a building following the original drawings does not constitute an infringement, but there is no implied license to extend the building using the original design.

If a client sells a site with planning permission, the designs that were used to apply for planning permission may not be available to construct the design without the permission of the creator, depending on the nature of the original appointment. If a client proceeds in the development of a design with another designer, again depending on the original appointment, they may not be able to use that design, even if it is modified, without the permission of the creator.

Clients may need to take particular care where an architect is not appointed directly by them. For example where they are a consultant to the main contractor.

Copyright is infringed where either the whole or a substantial part of a work is used without permission. It is generally considered that even a small part of the work qualifies as ‘substantial’. Infringement can result in an injunction to prevent further infringement, delivery of any infringing materials and payment of damages.

NB The position in relation to Building Information Modelling (BIM) is essentially the same. Under the CIC BIM Protocol, a license from the client enables project team members to use models prepared by other project team members, but if the client wishes third parties to use the model, a new license may be required.

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