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The following resource was prepared with reference to the Architecture, Building Design and Copyright (2016) publication by the Australian Copyright Council. The information below outlines the basic concepts of copyright, discusses some common areas of infringement and how to protect the intellectual property of an architectural practice.
In Australia, copyright law is regulated by the Copyright Act 1968 (Cth) (the Act) and court decisions which have applied and interpreted the Act.
Copyright can be created in a variety of work product produced by an architect. Any drawing or sketch, whether produced by hand or CAD software, is considered an artistic work in which copyright subsists. Further, computer renderings in virtual tours will be protected by copyright as an artistic work and the footage – including the sound and moving images - in the virtual tour is likely to be protected by copyright, separately, as a cinematographic film.
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Who owns copyright?
The general position is that the person who creates copyright material will be the owner of the corresponding copyright. There are some exceptions to this general position, particularly when it comes to employment. Where an employee creates copyright material in the course of their employment, the copyright owner will be the employer, not the employee. An architect who is commissioned by a client to create copyright material is not usually considered an employee of the client.
The general rule and its exceptions can be varied by agreement and so copyright ownership will ultimately depend on the terms and conditions of a contract.
The owner of copyright must be a legal entity – that is, an individual, a company or a government body. Architectural partnerships may create copyright material that is owned jointly or individually. This will need to be carefully considered in the preparation of any agreements and legal advice should be sought.
What are the exclusive rights of copyright owners?
In relation to artistic works, these rights are:
- Reproduction: the right to reproduce or copy the material. Reproducing a two-dimensional work into a three-dimensional form, or vice versa, is deemed to be a reproduction.
- Communication: the right to communicate the material to the public (eg transmitting via email or uploading to a website).
- Performance: the right to perform the work in public (eg screen a film in public or put on a performance of a play).
- Adaptation: the right to make alterations to the work or change it (eg translating written work into a different language, making alterations to a picture).
Agreements about ownership of copyright – how to protect the architect's intellectual property
Refer to Acumen note, Client and architect agreements.
Examples of materials that will need to be addressed, include:
- initial drawings and sketches
- detailed drawings and plans based on earlier drawings
- detailed drawings created by contracted staff
- detailed drawings by subconsultants
- digital images created using CAD software
- models based on architectural drawings or plans
- buildings.
Dealing with copyright in architectural material
Permission to use copyright material is broadly dealt with by either assignment or licence.
- An assignment of copyright is a transfer of copyright from the current owner to a new owner. An assignment of copyright is usually done using a written term in a contract or a separate document signed by the current copyright owner.
- A licence is a permission from the copyright owner that allows another person (ie the licensee) to use the copyright material. A licence may be exclusive or non-exclusive and subject to other restrictions.
- An exclusive licence allows the licensee to exercise rights granted to the exclusion of all others (including the copyright owner) for the duration of the licence. For example, if the copyright owner grants an exclusive licence to reproduce a building from a plan then no other party, including the copyright owner, may build a house from this plan again unless the licence is limited by time, place or purpose.
- A non-exclusive licence is the most common form of licence and will typically be the type of licence provided by an architect to their client. The architect defines the terms of the non-exclusive licence in the client-architect agreement. Under a non-exclusive licence, the copyright owner can grant the same permission over the same material to as many different licensees as they see fit.
A licence can be expressly set out in writing or can be implied by circumstance. Architects are strongly advised to put all licence agreements in writing, ideally in a formal contractual document, in order to avoid misunderstandings and minimise disputes. A properly drafted licence will determine the scope of and terms of what the client can and cannot do with the architect’s copyright material.
The grant of a licence is not necessarily conditional on receiving payment. In order to make a licence conditional on receiving payment, this will need to be expressly set out in a licence agreement. It is advisable to define the procedure for licensing the copyright to your client at each design phase and an example is provided below that could be included in any client-architect agreement.
Copyright licence example clauses
- Schematic Design (SD) Upon full payment of the SD fee, the architect grants the client a non-exclusive licence for the work produced as a part of the SD phase. The licence does not permit a third party to develop further, copy or reproduce the SD material for another phase or for any approval without the express and written permission of the architect.
- Design Development (DD) Upon full payment of the DD fee, the architect grants the client a non-exclusive licence for the work produced as a part of the DD phase. The licence does not permit a third party to develop further, copy or reproduce the DD material for another phase or for any approval without the express and written permission of the architect.
- Construction Documentation (CD) Upon full payment of the CD fee, the architect grants the client a non-exclusive licence for the work produced as a part of the CD phase for the purposes of reproducing the material by constructing the building or structure in a single instance on the project site.
It is important for the client-architect agreement to cover as many potential licensing issues as possible. Where an issue or situation arises that is not expressly addressed in the agreement, a licence in relation to the copyright may be implied from the context of the agreement and the surrounding circumstances. Assuming that the client has paid all relevant fees, it is generally able to rely on an implied licence to use the architectural designs for the purpose it was commissioned (eg to construct a building).
Architects should avoid relying on implied licences where possible as clients will typically assume their licensing rights are more extensive than what is envisaged by an architect.
Additional clauses may be agreed to address common situations such as:
- What happens to the copyright material (the architectural plans or plans contained in the Development Approval Permit) in the event of the site being sold to another party?
- What happens if a client terminates the agreement with the architect and uses a different party to complete construction using the architect’s plans?
It is strongly recommended that all aspects of copyright and the commercial obligations of the client are clearly articulated in each client-architect agreement.
For further information, refer to the following Australian Copyright Council fact sheets:
and their Architecture, Building Design & Copyright publication.
The Australian Copyright Council kindly contributed to the review of this note to ensure currency at the date of publication and only in relation to Australian copyright law.
Disclaimer
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