Copyright is a critical issue for architects. It is the most important - and often the only - right protecting their work from unauthorised reproduction and use. Often the respective rights of architect and client in relation to the ownership of architectural designs are not clearly defined, which can lead to uncertainty, disputes, or lost revenue for the architect.
SCOPE OF PROTECTION The Copyright, Designs and Patents Act 1988 specifically identifies 'works of architecture' as copyright works. Copyright in a work of architecture may be infringed by copying the design documents themselves, known as '2D to 2D' copying, or by constructing the building or model according to that design - '2D to 3D' copying.
Sometimes the architect's involvement extends to the design of elements within the building, for example Arne Jacobsen's cutlery for St Catherine's College, Oxford. Design features that fall short of being works of architecture usually attract 'design right' protection rather than copyright. Design right is a reduced form of copyright that protects the outward configuration of an article.
Copyright and design rights arise automatically, without any requirement for registration or other formalities.
OWNERSHIP OF COPYRIGHT
The first owner of the copyright in a work is generally the author of that work. The main exception is where the author creates the work in the course of employment, in which case the employer owns the copyright. Therefore, it is the architect (or employer) who owns the copyright, in the absence of any agreement to the contrary. This frequently comes as an unpleasant surprise to clients, who work on the principle: 'I've paid for it, so I own it.'
The client normally has at least an implied right to use the work for the purpose for which it was commissioned. However, this can itself be a point of dispute, particularly where preliminary designs are concerned. On the other hand, if any design rights are involved, then these belong to the client as 'commissioned works'.
There is considerable scope for confusion and argument here, so it is advisable to ensure that ownership and rights of use are clearly set out in the architect's terms of engagement with the client.
SCOPE OF USE The RIBA's standard Conditions of Engagement (1999) provide a good example of a balanced approach to ownership and use. The architect retains the copyright, and any design rights, in their work - essential if the design incorporates the architect's 'signature' elements - and grants a site-specific, project-specific licence for use.
If the client wishes to use the designs on another site, for a different project, or to build an extension to the building, they will need the architect's permission, for which the architect can, of course, charge a further fee. Other standard terms, such as the JCT 2005 Design and Build contract, contain similar provisions.
However, some clients may seek additional rights. For example, a housing developer may wish to use 'house types' for other projects, which may lead them to seek an assignment of the copyright rather than a licence. In some cases, the architect may be willing, or consider it commercially necessary, to agree. A welldrafted licence can give the client everything they require, while ensuring that the architect retains the underlying copyright.
PRELIMINARY DESIGNS Preliminary designs are a common source of copyright dispute.
One architect may be engaged to produce initial designs for a planning application, funding round or tender document, but another engaged to prepare the detailed plans. A dispute can arise over whether the originals have been copied by the final plans.
Sometimes the preliminary design is copied directly in the final plans and proving copyright infringement is straightforward.
However, in many cases the position is less clear, as the final designs may bear only a 'conceptual' resemblance. Copyright protects only the particular expression of an idea, not the underlying concept, and drawing a line between these may be far from simple. A design that recreates the general concept, rather than directly copying earlier plans, will not infringe copyright.
A 2001 case, in which an architect sued Tower Hamlets Council for infringement of his original designs for a block of ats, illustrates the complex nuances that can arise. The court dismissed most of the claimed infringements as either related to constraints imposed by the site, such as the precise width of the ats, or involving common architectural features, such as building ats over an archway. However, the council was held to have infringed the architect's design for the bathrooms, which included a space-saving wraparound partition clearly copied from the original design.
PRACTICAL STEPS Copyright's complexity means that it is essential to have express agreement on ownership and rights of use. At a minimum, the architect will want to assert ownership of the copyright and other rights in their work. The main discussion will focus on the extent of the client's rights of use, particularly the extent to which the client can reuse material beyond its original purpose.
When proposing these terms, it is worth considering how to enforce the contract. Highly restrictive contract terms may be useless in practice, since the reputational damage from enforcing the letter of the contract will outweigh the benefit of the provisions.
It may be better to include a basis for charging additional fees for further use, rather than attempting to prohibit it outright.
It is often inappropriate to introduce detailed contractual terms - for example, where preliminary work is done 'as a favour' in the hope of securing the full contract. In the absence of an agreement, the courts look at the circumstances in which the work was carried out - and a letter or copyright notices stating that drawings cannot be reused without permission can carry a lot of weight. The golden rule is: never leave copyright issues unspoken.
John Halton is a partner with law firm Cripps Harries Hall, specialising in intellectual property and technology law