Understanding copyright for architects and building designers
What is copyright?
Copyright in Australia is the exclusive and assignable legal right given to the creators of original work to use that work. The Copyright Act 1968 outlines the exclusive rights associated with ‘work’ which can include designs and drawings. As an architect or building designer, you have the right to:
- reproduce the work in a material form;
- publish the work; and
- communicate the work to the public.
As the creator of a drawing or design you automatically own the copyright to that piece of work. And you have the legal right to be acknowledged as the original creator of the work. This type of legal rights is important because it means that people continue to create new things and get paid properly for their original creations.
Your client might give you some ideas about what they want to be included in their plans. But you are developing them and express the idea in material form, so copyright of the plans falls to you. What this means is if someone says they want a house to contain four bedrooms and two bathrooms there is no copyright over that. But there is copyright over the drawing of the floor plan.
How is copyright infringed in the architecture and building design industries?
As we’ve mentioned already, once you’ve created a plan, design or a model you automatically assume copyright. Which means that only you (or the company you work for) have the ability to copy or reproduce the design.
The only way someone else can use a copy of your plan or design is if you, as the creator, transfer the ownership of copyright to another person. Or you grant a licence to that person to be able to reproduce your work. There would normally be a cost associated with being able to do this.
If you were to produce a design where a substantial part of another person’s work is used without their consent, then you are likely to have infringed on the copyright of their work. As an example, a client who is looking to have their house built might take Builder 1’s plan to Builder 2. Builder 2 then builds the house according to the supplied plan. In this case copyright has been infringed by both the client and Builder 2.
What if the floor plan is changed slightly?
There is a misconception that if the original work is changed by a certain percentage, say 10%, then copyright infringement can be avoided. This isn’t the case. The real test depends on how different the end result is from the original plan. What is considered is whether a substantial part of the material can be recognised as someone else’s work.
But what does substantial really mean?
It’s difficult to have a hard and fast rule here. If you change one or two rooms but the overall design is still the same, there is likely copyright infringement. Or if there is a distinctive or important part of a plan which remains in the plan, even if it is small but recognisable, then copyright may also be infringed.
How can you avoid copyright issues?
If you use or adapt someone else’s design you need to ask the creator first. This might mean a license fee is payable, but you are protecting yourself in the long term.
When it comes to protecting your own work, you want to ensure a service agreement is signed and comes into effect. This will detail the rights and responsibilities of each party to the contract. You will want to ensure a clause regarding intellectual property is included and detail information about you retaining the ownership of your work. With you giving your client a licence for the right to use the work they pay you for.
If no agreement exists there may still be an implied licence. But to avoid a dispute then an agreement in writing is always best.
If you are sharing initial designs to demonstrate your capability, then be sure to add your name and logo to the page. It is also recommended to include the © symbol to remind clients that the plan is subject to copyright.
You consider risk mitigation strategies such as insurance to protect you if you need to take an infringement case further.
As part of the cgib Professional Indemnity Scheme we are able to provide 1-hour free legal advice, check your policy document for further details or give our team a call to discuss.
The information provided in this article is general advice only,and is not intended to be a substitute for legal or other advice. General Advice is advice that has been prepared without considering your current objective's, financial situation or needs. Therefore, before acting on this advice, you should consider the appropriateness of the advice having regard to your current objective's, financial situation or needs. Read our complete general advice warning.