Architects and copyright

1. How do architects obtain copyright protection for their designs?

Copyright arises automatically the moment an original work has been expressed in material form (eg drawn onto paper or saved as a digital file). There is no need to register copyright nor pay any fees for copyright protection. Individual architects will generally own copyright in the artistic works they create, except where:

• the work was created in the course of employment for an employer
• the work has been created under the direction or control of the Commonwealth Government, or a state or territory government (see 5(a) below)
• there is an agreement varying ownership.

Copyright can be transferred from one party to another via an assignment. An assignment must be done in writing to be legally effective. An architect who agrees with a client that the client will own copyright must sign a document that assigns copyright to that client (see 5(c) below).

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2. Is it necessary to use the © symbol on drawings and other documents?

There is no legal requirement to use the © symbol to have copyright protection. However, displaying a copyright notice (eg '© Jane Fong 2022' or 'Copyright Jane Fong 2022') is generally recommended to remind people that the work is protected by copyright and to create a legal presumption that the person named in the copyright notice is the copyright owner.

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3. Are ideas protected by copyright?

No. Copyright does not protect ideas, concepts, facts, information or styles, only their material expression.

It is therefore possible for an architect to be influenced by another architect's design ideas without infringing copyright in the other architect's work. There is sometimes a fine line between being influenced or inspired by another architect's work, and copying it. In Ancher Mortlock Murray and Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278, Justice Street said:

An architect may legitimately inspect an original plan or house and then, having absorbed the architectural concept and appreciated the architectural style represented therein, return to his own drawing board and apply that concept and style to an original plan prepared by him and in due course to a house built to that plan. There is a dividing line separating such a legitimate process from an inspection followed by a later copying of a substantial part of the physical object inspected, even though the copying be from memory; the latter exercise does infringe. In many instances it will be difficult to state categorically whether the dividing line has been crossed.

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4. Do architects have moral rights?

Yes. Moral rights have been a part of the Act since the passing of the Copyright Amendment (Moral Rights) Act in 2000. Moral rights will not prevent a building from being relocated, altered or demolished without the architect's consent, but it does require the owner of the building to notify the architect at least three weeks in advance, of their plans to do so (unless the owner cannot identify nor locate the architect/s). The purpose of the notification is so that the architect may make a record of the building and/or consult on the proposed changes. Refer to Acumen note Moral rights for further information.

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5. What rights does the client have?

(a) Where the client is the Commonwealth, state or territory government

If the client is the Commonwealth, state or territory government (or their agency) and the copyright material is prepared under that government’s direction or control, the government client will automatically own copyright in that copyright material. This, however, may be altered by a written agreement with the government client.

(b) Commercial clients

Where a commercial client commissions an architect to create copyright material, at default the architect will own the copyright in that material. However, because the client has commissioned the material, there will be an implied licence that the client can use the material for the purposes it was commissioned, unless there is an express agreement to the contrary: see cases Gruzman Pty Ltd v Percy Marks Pty Ltd [1989] 16 IPR 87; Beck v Montana Constructions Pty Ltd [1964¬-5] NSWR 229; Ng v Clyde Securities Ltd [1976] 1 NSWLR 443.

In the Gruzman case, the architect's services were purportedly terminated by the client during construction. The construction work continued and the architect wished to restrain the former client from using the plans to complete the work. The contract between the architect and the client contained no provisions regarding copyright or use of the plans. The court held that when an architect contracts with a client to produce plans for the purpose of being used to carry out construction work at a particular site, there will be an implied licence from the architect to the client to use the plans for that purpose.

Cases such as Ng v Clyde Securities Ltd in 1976 had already established that there is an implied licence which passes to subsequent owners of the land. Revoking the licence is commonly intended to avoid the need for legal action by prompting payment in order to have the licence reinstated. In this case, it was found that the architect had merely a contractual claim against the original client for unpaid fees, and, without an express contractual agreement setting out a right to revoke the licence when not paid, the architect could not withdraw the implied licence to build from the owner or subsequent purchaser.

In the case, Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55, the High Court reaffirmed the legal position established in Ng v Clyde Securities that where an architect prepares drawings for a particular development, the architect impliedly licenses the use of those drawings for that development purpose. Such a licence would then extend to subsequent purchasers of the land and can be irrevocable where one of the essential purposes for which the plans were created has been approved, such as a planning permit or development consent that 'runs with the land' and gives statutory development rights to the land's owner.

(c) Where there is express agreement on copyright

Copyright ownership can only be transferred in writing. If a written agreement states that a client owns copyright in the material created by the architect, and the architect signs that agreement, then the architect will have assigned their copyright to the client. The architect will, however, retain their moral rights.

Even if copyright ownership is not assigned, having a written client-architect agreement is strongly recommended. A written agreement can clearly and expressly set out the permission granted by the architect to the client to use the architect’s copyright material, restrict any use, set conditions upon any use, and avoid ambiguity and misunderstanding. For example, the architect can make it an express term of the agreement that the client’s right to use the copyright material is restricted, or conditional upon receiving payment for the work.

(d) Under the Institute's Client and Architect Agreement 2019 (CAA2019) and Client Architect Agreement for Limited Services (CAALS2019)

Both the CAA2019 and CAALS2019 agreements contain provisions (see section 'Intellectual Property') which deal with copyright and licensing to use the design. Both agreements adopt a robust set of copyright provisions which protect the Architect's copyright as well as the Architect's commercial interest in their intellectual property in the design they created for the Client.

Under the CAA2019 and CAALS2019 the Architect retains copyright in the design. The design is defined as and includes the design concepts, drawings and documents.

• The Achitect's copyright in the design is not transferred under the CAA2019/CAALS2019 to the Client (see CAA2019 F.1.1).
• Both agreements make it clear that there is no implied licence given to the Client to use the design for any other purpose, but only an express licence on the terms set out in the CAA2019 (see CAA2019 F.1.2).
• The terms of the licence to the Client are to use the design only for the purpose of building the design on the chosen project site (see CAA2019 F.1.2). This can be referred to as the ‘expressed purpose’.
• The Client cannot use the design on another site, cannot transfer (‘assign’) the right to use the design to anyone else (including another architect) and cannot share, show or give the design to anyone else for any other purpose. The Client promises (‘warrants’) it will not perform these actions (see CAA2019 F.1.3).
  • The Architect must give written consent before the Client can perform these actions. As part of the architectural services, the Architect can of course submit, share or show the design to the tender proponents, the selected builder, the planning authority and similar authorities as required. These actions performed by the Architect on behalf of the Client, do not breach or undermine the Architect's copyright.
  • The Client does not have a copyright licence to transfer the copyright in the design if there is a change of ownership or change in legal interest in the site. This anticipates circumstances where the client wishes to sell the property (with plans) to another owner or the Client becomes insolvent or bankrupt. The Architect at its discretion can give consent to the Client's wish to transfer the licence with the property (see CAA2019 F.1.3).

Notably, the provisions of the CAA2019 and the CAALS2019 also help protect the Architect in the scenario where the Client attempts to terminate the Architect's services and takes the complete or incomplete design to another architect, a draughtsperson or to a builder. Under the CAA2019 and CAALS2019, the Client's right to terminate the contract are limited (see CAA2019 K.3). Please refer to the corresponding User Guide and if you find yourself in this scenario, it is strongly recommended to seek legal advice.

(The copyright provisions in the CAA2019 assume that it is unlikely to be used in an engagement with government, so the presumption of government copyright is unlikely to be an issue. If the CAA2019 or CAALS2019 is to be used where the government is the Client, it will need to be amended by the parties to accommodate the agreed position on the government's copyright.)

It is recommended that you have these documents independently reviewed to ensure that they are fit for your purpose.

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6. What should the architect do if approached to take over another architect's project before completion to protect against possible copyright or moral-rights infringement?

An architect who is approached by a client to take over another architect’s project may be at risk of infringing copyright in the original architect’s work if they are not careful.

In the case of Milankov Designs & Project Management Pty Ltd v Di Latte [2018] WASC 14, an architect who took over a client’s construction project using a previously contracted architect’s work was held to have infringed the previous architect’s copyright. The court noted that the architect knew that the plans supplied by the client had been created by a previous architect, didn’t make sufficient enquiries about the licence granted by the previous architect, and should have had reasonable grounds for suspecting its actions using the plans supplied by the client constituted an infringement of copyright. The client who commissioned the architects was also found liable for copyright infringement.

The following steps are suggested as a guide to good practice and are not to be taken as a substitute for legal advice in individual cases:

• Ascertain who owns copyright in the plans. Keep in mind that unless the client is a government body, the default position is that the architect will own copyright in the drawings, plans, and other artistic material they have created. Also, keep in mind that copyright is separate to the property right in the physical material, just because a client owns the physical or digital plans they do not automatically have the legal right to use the plans. If the prospective client claims they own copyright in the material they are bringing to you, ask to see a copy of the written agreement that assigns copyright from the original architect to the client.
• Ascertain who drew the plans. Irrespective of whomever owns copyright, the author of the plans (usually the original architect) has moral rights and should be appropriately attributed if the plans they designed are used unless there has been agreement to the contrary.
• If the client doesn’t own copyright in the plans and the copyright owner is the previous architect, ask to see the original agreement between the prospective client and the previous architect to ascertain what permissions were given regarding the use the plans and other copyright material. Also inform the client that they should notify the previous architect of your possible appointment as the architect to obtain the appropriate copyright licences.
• For further clarity, try contacting the previous architect yourself to ask about the licence granted to the client, whether you are able to use their materials and if so, under what conditions.
• If the previous architect has no objection to granting you a licence to use their work to complete the project and you are able to agree on moral rights attribution, make sure you have confirmation of this in writing before proceeding to enter in agreement with the prospective client to take on the project.
• If the previous architect does not agree to give you permission, or the prospective client declines to identify or notify the previous architect, or objects to you contacting the previous architect for clarification, consider whether you wish to accept the project.
• If you do decide to accept the project using the previous architect’s work, make sure that your client-architect agreement includes a representation and warranty clause in which the client promises that any copyright material they supply to you is good to use and does not infringe any intellectual property rights. The client-architect agreement should also contain an indemnity clause which, in the event that the previous architect does make take any action against you for infringement of their copyright or moral rights, would entitle you to compensation from the client.
• At no point should you attempt to give yourself, your client, or any potential client legal advice about their contract, assertions of copyright ownership, copyright infringement, or other legal matters. If in doubt, obtain your own independent legal advice.

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The Australian Copyright Council (ACC) kindly contributed to the review of this note to ensure currency as at the date of publication and only in relation to Australian copyright law. The documents at 5(d) were not reviewed by the ACC.