Some people say that imitation is the sincerest form of flattery. However, when you have put so much time, effort and money into your own work, the last thing you want to see is someone else reproducing it. As an architect, it is important to ensure that your drawings, designs, layouts and plans are all protected. This article explains copyright in architecture and how to protect your designs.
Copyright in Architecture
In Australia, the Copyright Act 1968 provides creators of original work with exclusive rights to use that work. ‘Work’ includes anything from books and films, to architectural designs and drawings. Therefore, copyright in architecture exists. As an architect, you have the exclusive right to:
- reproduce the work in a material form;
- publish the work; and
- communicate the work to the public.
It is important to understand that copyright protects the expression of an idea but not the idea itself. So, where the plans you develop are based on your client’s ideas, you still own the copyright of the plans, as you were the one to express the idea in a material form.
The Importance of an Agreement
As soon as a client engages your services, you should provide them with a service agreement, outlining the rights and responsibilities of both parties for the work to be completed. This agreement should also include a clause regarding intellectual property.
Although it is standard practice for the architect to retain ownership in the copyright of their work, an agreement usually includes a licence to the client, providing the client with rights to the work they have paid for. A licence can be in the form of an exclusive or non-exclusive arrangement.
Exclusive or Non-Exclusive Licence
An exclusive licence provides the licensee with the ability to exercise their rights to the exclusion of all others. For example, if a similar house design appears a few doors down from your client, the client can take action against the potential infringer.
In contrast, a non-exclusive licence allows the licensee to use the copyright material as agreed upon with the copyright owner. This also allows the copyright owner to continue to grant other clients with a non-exclusive licence.
In general, exclusive rights are more valuable for clients. However, if you are reusing the same design, you may want to grant a non-exclusive licence.
Where No Agreement Exists
Without an agreement for the copyright in architecture, there may still be an implied licence. The implication here is that if a client has commissioned the works by an architect, they have an implied licence to use that work for the purpose it was commissioned. The extent of the rights incurred from an implied licence depends on the:
- relationship between the architect and client; and
- discussions between the architect and client.
Different people can have different recollections of discussions and a different understanding of the relationship. Therefore, to avoid a dispute arising from a ‘he said/she said’ situation, it is best practice to put agreements in writing.
Protecting Work Provided Before Engagement
It is common practice for an architect to provide initial designs and drawings to demonstrate their capability for building the client’s dreams. But if this happens before any written agreement is signed, how do you set out your rights?
First, clearly demonstrate what is yours. The easiest way is by providing designs on your letterheads or with your name and logo on the page. Although not legally required, it is also good practice to use the © symbol to remind your clients that the material is subject to copyright.
Secondly, to avoid clients relying on an implied licence, state at the bottom of any plans, drawings or designs that no licence is granted or implied. However, regardless of the absence of an agreement, copyright will still subsist in your original work and therefore any substantial reproduction without your permission will constitute copyright infringement.
Where copyright in architecture has been infringed, the copyright owner has three remedies available to them: an injunction, account of profits and damages. Each must be obtained by going to court.
An injunction is a court order to stop the infringing activity. For example, if a client published your designs online, an injunction would order them to take the designs offline.
An account of profits is an order to pay the copyright owner all of the profit made from the infringement. For example, if a client started selling your designs, a court may order them to pay you all the profits from the sales.
Damages are compensation for the infringement. In determining the amount of damages, the court will consider:
- whether the infringement was deliberate or reckless;
- the need to deter others from similar infringement;
- the conduct of the infringer;
- whether the infringement involved converting hard copy material into digital form; and
- the benefit that the infringer received as a result of the infringement.
As an architect, you have copyright in your designs. However, you should always have a written agreement with your clients to avoid any confusion. Furthermore, if you are not yet engaged as the architect, but you have provided sample plans, state that there is no implied licence to use your plans.
Although the Copyright Act is designed to automatically protect a creator’s original work, it is important to be proactive in enforcing your rights. If you need help protecting your designs, call LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.
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