by Marcus O’Leary
For most people the word “copyright” conjures up visions of books, films and paintings. The day-to-day business of constructing office blocks, car parks, bridges and houses seems a million miles away. But copyright’s invasive tentacles have entered into even this world and grasped a pivotal role. This article selects just a few aspects of the relationship.
A new copyright act, the Copyright, Designs and Patents Act 1988 (“the Act”) came into force in August 1989. Section 4 of the Act defines an “artistic work” as (among other things):
(a) a graphic work … irrespective of artistic quality,
(b) a work of architecture being a building or a model for a building, …
A “graphic work” includes any painting, drawing, diagram, map, chart of plan, and a “building” includes any fixed structure or part thereof.
It will be obvious, therefore, that plans drawn up by an architect, as well as his conceptual and other drawings, attract copyright protection. Furthermore, buildings made from such plans also have a separate copyright, and the use of the words “fixed structure” extends the normal understanding of the word “building” to encompass works of civil engineering such as bridges and towers.
Who owns the copyright in an architect’s plans? A common misconception is to believe that, because an architect has been paid to produce architectural plans, the commissioner somehow owns the copyright. This is not supported by law, and the Act at section 11(1) provides that “… the author of a work is the first owner of any copyright in it”. (My italics.)
The situation is, of course, more complicated than it at first appears because any architectural firm engaged to design a large building produces a vast amount of copyright work, including sketches, site plans and drawings. Many of these are likely to be produced by different people, resulting in a multiplicity of copyrights. Fortunately for the firm, section 11(2) saves it from producing and retaining detailed records of authorship and destinations of staff (not to mention some procedure for obtaining consents from these “authors”) by providing that:
Where a(n) … artistic work is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work, subject to any agreement to the contrary.
The Whitford Committee, which reported on copyright and designs law in 1977, was divided in its members’ views as to the ownership of “commissioned works”, with four (out of nine) members feeling that the best solution was for the commissioner to own the copyright in such works in cases where the only purpose of the commission was the creation of a copyright work. However, even these four felt that where the creation of a work is not the only purpose of a commission — for example, where a service is given, such as in the case of an architect — the copyright should vest in the person commissioned, ie the architect. (It is interesting to note that their views can be seen to have borne fruit in relation to the new design right, where ownership of designs created in pursuance of a commission vest with the commissioner: section 215(2).)
What is the use of owning the copyright? First, the owner of copyright work can prevent others from reproducing that work in any material form, which includes storing the work in any medium by electronic means. It also includes, in relation to an “artistic work”, making a three-dimensional copy of a two-dimensional work and vice versa. Thus, if someone constructs a building based on illicitly copied architect’s plans, that building is an infringing three-dimensional reproduction of the architect’s two-dimensional plan. The result of this rather complex wording is that an architect, notwithstanding having been paid by his client for producing plans in respect of one building, can utilise those plans to satisfy other clients’ requirements, whereas the building owner cannot erect a duplicate of his original building without the consent of the architect. This consent, while likely to be given, will generally be linked to a further fee and whatever costs are necessary to modify the plans in respect of the further building.
What happens if a building is being constructed which infringes an architect’s plans? Section 17(4) of the Copyright Act 1956 covered this situation exactly. It said that in an action for infringement of copyright in respect of the construction of a building, no injunction or other order shall be made either after the construction of the building had begun, so as to prevent it from being completed, or so as to require the building, in so far as it had been constructed, to be demolished.
The Whitford Committee (in para 707 of its report) argued that this special exception in respect of buildings should be retained, as it was of the opinion that its removal might be taken as indicating that it would be sensible at all times to make orders restraining further construction or requiring demolition. The Law Society, for its part, recommended that the grant of an injunction be made a discretionary remedy not subject to any special exceptions.
The final recommendation of the Whitford Committee was that any new Act should stipulate that an injunction should not be granted if the damage caused to the defendant by such injunction would be out of all proportion to the infringement. However, this recommendation was not adopted and section 17(4) does not have an equivalent in the 1988 Act. Thus one might speculate that an injunction may be issued to restrain further construction of a part-built building, or even to require its demolition.
Copyright law impinges on many areas of the property business, and many of its effects are possibly not commonly known. A little research at an early stage can make all the difference later on, and, as many rights that are available under the Act have to be asserted, it behoves everyone to make the initial effort.
