Since the passing of the Copyright Amendment (Moral Rights) Act in 2000, the Copyright Act 1968 (Cth) (the Act) has protected the moral rights of artists, including architects. Moral rights are separate from the economic rights of the copyright owner and are afforded to individual creators in order to protect their reputation and the integrity of their work.
Moral rights can only be owned by individuals.
An architect has the right to be attributed as the designer of a project when it is constructed, and when the work is publicised or represented in print.
Architects also have the right to be informed if their project is to be altered or demolished. Any alteration or demolition of a structure where there has been a failure to inform may, therefore, amount to derogatory conduct. The architect can require that their name no longer be associated with the project, if they choose. This can significantly affect the value of a project designed by a well-known architect.
The Act allows architects to consent to acts that infringe their moral rights.
Obligations of owners
This information is intended to assist clients in understanding their obligations under Part IX of the Copyright Act and to outline how the Act may affect their project.
Background
Part IX of the Copyright Act expressly protects the moral rights of architects (among others) as ‘authors’ of artistic works such as building plans, models and constructions. Moral rights are personal to the authors of a work, are designed to protect the author's honour and reputation, and cannot be assigned, licensed or sold. Moral rights are additional to the economic rights already provided for in the Copyright Act. Only individuals, not corporate bodies, have moral rights.
As Part IX was introduced by the Copyright Amendment (Moral Rights) Act 2000, actions for moral rights infringement can only be brought for incidents which occurred on or after 21 December 2000. From that date forward, architects and others, gained three rights:
- the right of attribution of authorship;
- the right to take action against false attribution of authorship; and
- the right of integrity of authorship.
Right of attribution
The right of attribution requires that the architect and any others who have made an important contribution to the design of a project, be identified.
Although, moral rights can only be owned by individuals, some architectural practices make agreements with their employees under which the practice, rather than the individual architect, is attributed as the creator of a work.
If you receive documents such as plans on which the creator’s name appears, you should ensure that any copies you make or communicate still show the creator’s name. Usually the architect will advise what form of attribution is appropriate and who should be included in the attribution.
The forms of attribution that could be used include:
- a plaque or permanent sign somewhere on the project;
- acknowledgement whenever the project is 'reproduced, published, exhibited or communicated to the public' – this would include publication in a newspaper, a marketing brochure or being featured in a book or magazine.
You are not required to identify the architect if they agree that attribution is not necessary or if it was not 'reasonable in all the circumstances' to identify the architect. An agreement with an architect not to attribute their contribution to a project must be in writing.
False attribution
It is false attribution to identify a person as the architect if they are not the architect responsible for the design of the project. In most cases, the architect will advise who should and should not be attributed.
Right of integrity
The provisions that deal with the right of integrity protect an architect from damage to their reputation if a project that they designed is subjected to 'derogatory treatment'.
'Derogatory treatment' is defined to include a material distortion or alteration, a mutilation, or anything else that is prejudicial to the honour and reputation of the author.
If a project involves alterations or additions, the original architect must be notified in writing. The form of writing is set out in regulation 126(2) of the Copyright Regulations 2017.
The notification must give the original designer three weeks to decide if they wish to:
- make a record of the building before alteration or demolition
- consult 'in good faith' about the alterations or demolition
If the original architect does not respond to the notice within the three-week period you may proceed immediately with the proposed alterations or demolition.
If the original architect advises you within the initial three-week period that they wish to make a record of the building or consult regarding the proposed alterations or demolition, you must allow a further period of three weeks for making the record and/or conducting the consultation.
Locating the original designer
If a project involves alteration to or demolition of an existing building, the architect should be able to assist you to identify and locate the original designer so that they can be notified of your intentions.
It is advisable that the process of notification to the original designer should take place well before the time required for the notification becomes critical to the project program.
If you cannot discover the identity and location of the original designer after making reasonable enquiries, you will not have infringed their right of integrity, provided you have gone through the process outlined above.
Making a record before change, relocation or demolition
If the original designer wishes to make a record of the project before the alterations or demolition take place, they are required to complete this process within the second three-week period.
Consulting the original designer
If the original designer requests that consultations regarding the alterations to or demolition of the building is undertaken, these should also be completed within the second three-week period.
While the Act states that these consultations should be undertaken 'in good faith' there is no legal obligation on you to incorporate any ideas or suggestions the original architect may make during the consultations. Clearly, however, it is in the best interests of the profession and of architecture in general, for the views of the original designer to be considered, where possible, in the design of the proposed alterations or demolition.
Resources
- Australian Copyright Council, Building Plans & Copyright information sheet
The Australian Copyright Council kindly contributed to the review of this note
Disclaimer
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