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The moral rights provisions in the Copyright Act 1968 (Cth) (the Act) mean that clients of architectural practices need to manage certain obligations in relation to the work created for their project. Architects can assist clients to effectively manage these obligations by using the procedures below.
The life of copyright and moral rights is the life of the author plus 70 years. For further information about moral rights, see Acumen note Moral rights.
Some clients may seek to have practices waive moral rights or indemnify them against infringement claims. Such practices should be discouraged and resisted. The most effective way of discouraging these waivers and indemnities is to provide your client with a workable agreement that manages their obligations and minimises any adverse impacts of these obligations on building ownership. At the same time, the agreement should ensure that the benefits to the profession flowing from moral rights are preserved.
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Protecting the interests of others
The architect is usually the head consultant and, in many cases, is responsible for engaging the specialist consultants required for a project. Moral rights obligations also mean that the architect has the added responsibility to protect the rights of others in negotiations with the client. This includes attempting to secure author contribution and acknowledgement to projects, particularly in the form of attribution as agreed with the client. Generally, author contribution would be to:
- the architectural practice, as well as the relevant directors or staff within the practice
- specialist consultants and/or relevant directors or staff within the consultant’s practice
- building contractors, project managers or individuals in those organisations (in some cases).
Before preparing an agreement
Before preparing an agreement in relation to moral rights, it is important to put appropriate consents in place with employees in your practice as well as contractors and consultants engaged for the project. The agreement with your client should address the issues below.
Attribution
The moral rights provisions in the Act allow an author to protect how they are attributed for their work. Accordingly, the client agreement should explicitly set out the form and manner of attribution that is preferable for the project.
There agreement should address two aspects of attribution. Firstly, the attribution fixed to the work and, secondly, the form of attribution to be used if the work is published.
1. Attribution fixed to the work
It is desirable for all projects to incorporate a form of permanent identification of the authors of the work. It is recognised that this may be impractical or inappropriate on some projects; however, for larger and/or significant projects, this form of attribution is appropriate.
Identification options include embed authorship details into the (meta)data of the digital versions of architectural works (including 3D CADs) and/or an attribution of the authors near the copyright notice. For example:
© Arkeytex Building Designs 2022
Architect: Kim Lemon
2. Attribution for publication
The agreement should clarify that the client has obligations relating to moral rights. Importantly, where designs are provided and subsequently used in publications clients prepare regarding the project and in publications by others they facilitate, such obligations are enlivened.
Where an unrelated third party (eg a newspaper) publishes an article about the project, the client has no obligations other than to inform that party, if asked, of the form of attribution that has been agreed. If the third party publishes information about the project and either fails to attribute the work or attributes the work incorrectly, the client building owner would not generally be liable. However, there may have enforceable rights against the third party.
Integrity
The moral right of integrity obliges a building owner to notify the architect if they wish to relocate, alter or demolish the building.
Under the form of agreement below, the obligations of the owner of the project are restricted to notifying the nominated architectural practice if they decide to relocate, alter or demolish the project. The decisions regarding consultation or making a record of the project then rests with the architectural practice.
Moral rights obligations may exist in any buildings the client owns, which were designed or constructed before the enactment of moral rights legislation in 2000. On accepting a commission that involves work that may be subject to moral rights ownership, immediately inform clients of their obligations to comply with the Act.
When clients are not the owner of the building, it is advisable that they ensure the building owner is aware of their obligations under the Act if they have an intention to alter the building.
Notifying the original designer
The owner is required to notify the original designer of a proposed relocation of, alterations to, or demolition of the building. The notice must give the original designer three weeks to decide if they wish to:
- make a record of the building before the relocation, alterations or demolition, or
- consult in good faith with the owner about the relocation, alterations or demolition.
If the original designer does not respond to the notice within the period of three weeks, the owner may proceed immediately with their proposed action.
If the original designer notifies the owner within the initial three week period that they wish to make a record of the building or consult with the owner regarding the proposed action, the owner must allow a further three weeks for making the record and/or conducting the consultation.
Locating the original designer
Where clients are the building owner, where possible architectural practices should assist them to identify and locate the original designer, so that they can be notified.
The identification process should occur well before the required notice becomes critical to the program.
If the original designer cannot be identified or found, clients should seek legal advice about their obligations.
Making a record before relocation, change or demolition
If the original designer wishes to make a record of the building before the relocation, alteration or demolition is undertaken, they must do so within the second period of three weeks.
Consulting the original designer
If the original designer requests to enter into consultations regarding the alterations to or demolition of the building, this should also be completed within the second period of three weeks.
While the Act states that these consultations should be undertaken 'in good faith', there is no legal obligation on the owner to incorporate any ideas or suggestions from the original designer. However, it is in the best interests of the profession and architecture that the views of the original designer to be taken into account in the design of the proposed alterations or demolition.
Fees and program
As building owner may request assistance in the process, including by managing the entire process, your fees should reflect the extent of any additional services to be provided. Managing the process of meeting the requirements of the Act is not part of a normal architectural service.
Clients must understand that the program for the project must allow sufficient time for the requirements of the Act to be met. The minimum time that should be allowed is six weeks (which may be reduced to three weeks in certain circumstances). However, the time that should be built into the program will also depend on factors such as the architectural, cultural or heritage significance of the original building.
Terms of an agreement
An agreement may include a clause that consents to actions that would otherwise amount to an infringement of moral rights. Such consent must be genuinely given and be in writing. A written consent that is made under duress, or as a result of false or misleading statements, will be invalid.
An agreement with the client should address the following matters:
- Whether or not a plaque, sign or other form of permanent identification is to be fixed to the project.
- If a plaque, sign or other form of permanent identification is to be fixed to the project, the specific wording is to be used.
- The specific organisations and individuals to be identified in any attribution of the project, if the project is published.
- If the owner decides to alter or demolish the project, which organisation must be notified.
For efficiency, when agreed, the moral rights clause(s) should be included in the client and architect agreement, promoting appropriate attribution to be in place before work commences. For projects where a client and architect agreement already exists, such consents can be retrospectively provided in separate agreements or variations.
Example consent from client to practice
Alternative 1
(Where attribution and exterior integrity of the project is considered to be important).
In relation to [insert project name], [insert practice name] (‘us’) and [insert client name] (‘you’) agree as follows:
1. [insert practice name] will be attributed as the architect of the project
***Note for user of this template (remove this note prior to use): This agreement must clearly describe exactly what form of attribution is to be given to the project, ie plaque, sign, or, when it is published, indicate precisely to whom the project is to be attributed, ie the practice only, or the practice and some of the specialist consultants, or the practice and some important individuals in the practice and some or all of the specialist consultants, etc.)***
2. You may alter the interior of the building in any way that you consider desirable or necessary but, if you do so without the consent of [insert practice name], you must not attribute us in respect of the altered interior.
3. You may not alter the exterior of the building in any way without first consulting with us and giving us the right to comment on your proposals.
4. Our employees, contractors and specialist consultants have given us consents permitting us to give you these consents.
Alternative 2
Consents for use by the practice with the client (where only attribution of the project is considered to be important).
(Where only attribution of the project is considered to be important).
In relation to [insert project name], [insert practice name] (‘us’) and [insert client name] (‘you’) agree as follows:
1. [insert practice name] will be attributed as the architect of the project
***Note for user of this template (remove this note prior to use): This agreement must clearly describe exactly what form of attribution is to be given to the project, ie plaque, sign, or, when it is published, indicate precisely to whom the project is to be attributed, ie the practice only, or the practice and some of the specialist consultants, or the practice and some important individuals in the practice and some or all of the specialist consultants, etc.)***
2. You may alter the interior of the building in any way that you consider desirable or necessary but, if you do so without the consent of [insert practice name], you must not attribute us in respect of the altered interior.
3. You need not notify us of any intended alteration to or demolition of [insert project name].
4. Our employees, contractors and specialist consultants have given us consents permitting us to give you these consents.
Alternative 3
Consents for use by the practice with the client (where neither attribution and integrity is considered to be important).
(Where neither attribution and integrity is considered to be important).
In relation to [insert project name], [insert practice name] (‘us’) and [insert client name] (‘you’) agree as follows:
1. [insert practice name] does not need to be attributed publicly in respect of the project.
2. You may alter the building in any way that you consider desirable or necessary but, if you do so without the our consent, you must not attribute us in respect of the altered building.
3. You need not notify us of any intended alteration to or demolition of [insert project name].
4. We have obtained consents from our employees, contractors and specialist consultants permitting us to give you these consents.
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 ‘Consent from client to practice’ was not reviewed by the ACC.
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