Common Copyright Problems Encountered by Architects

 There are a number of fairly commonly arising situations involving infringement of architects’ rights in their drawings or in buildings they have designed.  I will go through the most commonly arising situations in turn:

The Use of Plans Without Consent

 It is not uncommon for plans to be produced for the purpose of obtaining planning permission but for the client then not to buy the site.  Can the purchaser of the site with the benefit of planning permission freely make use of the plans?  The answer to this question is almost certainly no.  If the new owner of the site wishes to build in accordance with those plans he must first invariably copy the plans, which is itself an infringement of the copyright in those plans and he will then build a building in accordance with those plans.  The building of the building constitutes reproduction of the drawings in a material form and itself constitutes an infringement of copyright. 

 A second commonly encountered problem is where plans have been produced for company A, who then sells the site with planning permission to company B.  Company B then builds a building in accordance with the plans, although company B was not the company responsible for commissioning the plans.  The question arises as to whether company B is entitled to do this.  This will depend entirely on the agreement between company A and the firm of architects.  If the architects have been retained to produce drawings for the purposes of obtaining planning permission then the use of those plans to build the building will infringe the architects’ copyright.  All that company A had was a licence under the architects’ copyright for the purposes of obtaining planning permission.  Company A cannot therefore pass on to company B any greater licence than company A was granted. 

 A variation on this situation is where an architect is retained to produce drawings both for the grant of planning permission and for subsequent buildings.  Company A then sells the site (or maybe his business) to company B.  If company A has not paid the architect in full for the work which he has carried out then the question arises as to whether company B has a licence to use those plans to construct a building. 

If only part of an architect’s fees have been paid does the client (or a purchaser of the site) continue to enjoy a licence to use the plans?  The answer should be found in the architect’s appointment.  If not, terms may be implied into this contract.  Case law indicates that in the absence of express terms the client will still have a licence to use the plans, even if he has not paid in full.  In practice the difference between suing for copyright infringement and suing for unpaid fees is unlikely to be significant.  Copyright infringement damages are generally assessed on the basis of the fee that would have been payable.  The only advantage of suing for copyright infringement is that additional damages may be recoverable.

ref:

http://www.crippslink.com/index.php?option=com_content&view=article&id=124:how-architects-can-avoid-copyright-litigation&catid=20:technology-law-publications&Itemid=509