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I'm an architect: what do I need to know about IP?

Published 03.02.10 at 16:02

As an architect, the most important intellectual property right will be copyright, since this is what protects the design of a building.  Practically, however, architecture does involve rights above and beyond those which are inevitable in any business such as the company's brand.

Copyright

What is copyright?  Why is it important to me?

Copyright protects artistic and creative works - the expression of ideas.  It is automatic and free in that the rights are created along with the work, without a need for formal registration.  This does have the downside that with no registry of copyright, it can be easy to inadvertently copy protected material.

In order to be afforded protection, the work must be original, recorded (just telling someone an idea will not be enough!), and the result of a certain minimum amount of effort.  These all have quite low standards to meet.  If you are a joint author/creator, you have to play some role in the creation of the work rather than simply contribute ideas in order to be able to assert copyright.

Most artistic works are protected by copyright regardless of artistic merits.  This is not the case for architectural works including buildings and models of buildings, but the requirement is not particularly high.  As architectural drawings are not defined as "architectural works" but as graphic works, they are not held to such a higher standard.

Works in architectural practice which might attract copyright include buildings themselves, models for buildings, plans and drawings, photographs and videos, and even letters and emails.

How do I get a copyright?
As copyright comes into being automatically, there is no need to register it.  The author or co-authors of a suitable work will own a copyright in it immediately.  However the copyright in a work made by an employee in the course of employment will be, in the absence of other agreement, owned by the employer.  Copyright in a commissioned work, done by a third party contractor, on the other hand, will remain with the author, but the commissioner will have an implied licence or assignment of the copyright or its use, if nothing has been expressly agreed. [http://www.own-it.org/knowledge/i-did-that-questions-of-authorship-in-art-and-design ]

While there is no need to register a copyrighted work, keeping a record of it and its creation is important as a practical measure to prove the copyright's validity.

Who owns the rights?
Thje basic rule is that the architect who draws the plans will be the first owner of the copyright in those plans and in the building created from them unless there is an agreement to the contrary or employment provisions apply.

If the architect works on a commission basis, he/she will own the copyright, but if the architect is retained without a written agreement or on an agreement which does not expressly address copyright, a licence to use the work is implied.

The copyright in a building may be infringed by making another building which incorporates those artistic characteristics which are afforded protection or copying the building as a whole. However, in the UK copyright in a building is not infringed by:

  1. making a graphic work representing it;
  2. making a photograph or film of it; or
  3. broadcasting or including in a cable programme service a visual image of it.

What does copyright let me do?
It is easier to think of copyright as letting you stop other people doing things.  The owner of the copyright in a work has the exclusive right to copy, publish, show in public or adapt the work, and can therefore prevent others from doing these things, or obtain compensation from someone who does.

There are also so-called "moral rights" of authorship which cannot be given away, but can be waived.  These include the right to be identified as the author of a work and to prevent false attribution, the right to object to "derogatory treatment" of the work, for example if a licensee was about to publish a highly abridged version of a novel that the author felt reflected poorly on him, and a right to privacy in private photographs or films.  It has been used previously where an architect has allowed someone else to build according to their plans and designs, but been unhappy with changes made or the execution of the construction work.

Copying, adapting etc., of a copyrighted work without permission of the copyright's owner is infringement.  Copying includes copying "a substantial part", which will depend on the nature of what was copied.  It is not a simple "percentage copied" test - a single line from a long poem would be enough, if it was significant.  Infringement will also occur if the work has been adapted into a different format, for example by drawing up your own plans of another architect's building, or constructing a building based on the plans of another.  On the other hand, it is certainly possible to be influenced by the style of a work and create something to give a similar impression and reflect its influence without "copying" for the purposes of copyright law.

There are "fair dealing" defences to infringement, for educational study or criticism and review of the work, but they are unlikely to be relevant if the infringement was for commercial purposes.

How do I exercise all those rights?
If you think your copyright or other intellectual property is being misused, you will almost certainly want to seek legal advice beyond the scope of this FAQ.  Writing to whoever you think is infringing your IP and letting them know is likely to be a good step, as is making sure you can document the creation of the work if asked.

How does it make me money?
The holder of a copyright can licence (give permission for one or more of the aforementioned uses such as copying or adapting) or assign (sell or give away) the copyright.  Simply put, copyright protects your ability to charge people to use your plans.

How long does my copyright last?
Copyright generally lasts for the life of the author plus 70 years.  There are different regimes for mass-produced industrially exploited works (e.g. a pattern on wallpaper) and for some types of sound and film recordings, but these are not likely to be relevant to an architect working as such.

What about pictures of my work?
Copyright will exist in any particular photograph of a building (or model of a building, or a plan, etc) but this will not help you prevent someone taking a photograph of a building themselves.  It can be an infringement of copyright in an artistic work to take a photograph of, or otherwise make a graphical representation, but for buildings and publicly displayed models of buildings and other artistic works there is a specific exception created by s62 of the Copyright, Designs and Patents Act 1988.

Additional moral rights
The following additional rights apply:

  • The Paternity Right (buildings created after 1/8/1989): The architect has the right to be identified on a building. The architect also has the right to be identified on graphic works or photographs representing the building issued to the public.
  • The Right of Integrity: Architectural plans as artistic works also attract a moral right protection for the creator to object to a derogatory treatment if that treatment is published commercially or exhibited in public, included in the broadcast or cable programme or is included in a film which is shown in public or issued to the public.

In the case of a work of architecture in the form of a model for a building, the right of integrity only applies to the issuing to the public of a graphic work or photograph which depicts the derogatory treatment of the work.

The right of integrity does not apply to a work of architecture in the form of a building. However where the creator of such a building is identified as such and the building is subject to a derogatory treatment, the creator has the right to require that the identification is removed.

These are personal rights which need to be asserted to be effective and can be waived.

Design Right

There is a separate set of rights called design rights.  They reside in three-dimensional articles and the designs for them but offer shorter periods of protection than copyright. As both architect's drawings and buildings themselves usually have the benefit of copyright, design rights are not often relevant to architectural practice.  Thus design rights are dealt with only briefly here, but see [http://www.own-it.org/knowledge/the-ip-guide-to-industrial-design] for more.

There may be features incorporated within a building which do not attract copyright because they do not fall within one of the classes of artistic work that copyright can subsist in (such as a literary work or sculpture) but have sufficient novelty and individual character in their appearance and shape to be protected by design right.  A simple example is the design of a door frame.  It is unlikely to qualify as an artistic sculpture, but copying it would still infringe any design right that might reside in its form and appearance.

There are both registered and unregistered design rights, and rights under UK and EU law, but the details and difference in scope of protection, duration and enforcement can be found elsewhere on the Own-It site.  Unregistered design rights have a short lifespan, but arise automatically rather than requiring registration.

Content supplied by College of Law students at the Moorgate Centre.

Photo credit: Guwashi999

 

Please note that this article discusses the legal position in the UK at the time of publication. It provides general information only but is not to be regarded as legal advice. You must take advice from a specialist lawyer in relation to your specific circumstances. Further, you should seek additional legal advice when dealing with parties based in other parts of the world or works originating from other parts of the world as the legal position may vary.

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