Episode 17:

Hello and Welcome to the Part3 with me podcast.

The show that helps part 3 students jump start into their careers as qualified architects. I am your host Maria Skoutari and this week we will be talking about Copyright.

But before I dive into todays subject, one thing I realised I should have highlighted in each episode is which one of the Part 3 criteria each of the subjects I am covering I based on. So I just wanted to do a quick overview of the episodes I have done so far and which of the criteria each one covers.

Episode 1 - Differences between the RIBA and the ARB falls under PC1: Professionalism

Episode 3 - Easements & Covenants falls under PC3: Legal Framework and Processes

Episode 4 & 5 - CDM : PC3: Legal Framework and Processes

Episode 6 - Appointment Contracts - PC2: Clients, Users and Delivery of Services

Episode 7 - RIBA Standard Appointment Contract - PC2: Clients, Users and Delivery of Services

Episode 8 - Dispute Resolutions - PC5: Building Procurement

Episode 9 - Planning Permissions PC3: Legal Framework and Processes

Episode 10 - Planning Appeals PC3: Legal Framework and Processes

Episode 11 - Community Infrastructure Levy PC3: Legal Framework and Processes

Episode 12&13 - NPPF PC3: Legal Framework and Processes

Episode 14. - Building Regulations PC3: Legal Framework and Processes

Episode 15 - Approved Documents PC3: Legal Framework and Processes

Episode 16 - Party Wall Act - PC3: Legal Framework and Processes

And todays episode in Copyright is relevant to PC1: Professionalism.

So let’s dive into today’s subject, as architects we have the right to retain copyright of our work, but before I expand on why and how, let’s start with defining what copyright is.

As defined within the Copyright, Designs and Patents Act 1988, I provided a link to this in the episode notes:

Original literary, dramatic, musical or artistic works
Sounds recordings and films
And the typographical arrangement of published editions.

And in very simple terms, copyright means the right to copy and the right to stop others copying. So copyright is a legal right and it was created by statute and it of on a number of legal rights under intellectual property. A key thing to note here is that copyright is different to patents, registered designs and registered trade marks where the owner of a patent for example is entitled to prevent someone else from manufacturing, using, importing or selling without their consent. Copyright as mentioned stops someone else from copying but not against independent creation or design. In the UK there is no formal copyright registration process it arises automatically.

So as architects, when we express our ideas which is the designs and drawings we produce for a building, under the Copyright Act this expression of ideas is protected. The ideas are not protected but the expression of those ideas is.

This wasn’t the case initially, it wasn’t until 1911 that the Act was extended to cover architectural works and it is now covered under Section 4 of the Act Artistic Works stating that ‘a work of architecture being a building or a model for a building is covered under copyright law. So as the creator the architect has the automatic right of the copyright, you may need to prove though that you created it and when, so accurate record keeping is key and you should include the copyright symbol, name and date on your works to avoid any future confusion or potentially someone using your work without your consent. So as the owner of the copyright, architects have the right to:

Copy the work
Issue copies of the work
Make an adaption of the work

And they hold the copyright for the duration of their lifetime and a further 70 years from the end of the year of their death. So the copyright subsists in their work and it is vested in them and it allows creators to gain economic rewards for their efforts, therefore, encouraging future creativity and the development of new material. So the architect who draws the architectural plans is the first owner of the copying in the plans and the building created from them. The builder or contractor only becomes the copyright owner if they have produced their own plans and they are substantially different from the architects plans or if they haven’t followed the architectural plans at all.

Moral rights provide the author of the work to be identified as the creator of the material and to object to distortion or mutilation of it. The authors right to be identified must be asserted in writing and should be included on any copyright, assignment or licence to reproduce or other written contract. The architect author may also to object to disrespectful treatment if that treatment is published commercially or exhibited in public or included in the broadcast or cable programme or is included in a film which is shown in public or issued to the public.

As the author you have the right to sell your copyright if you like but that would mean that you will no longer have the right to reproduce your work. This is know as an assignment and will only be effective if the author puts it in writing. If the works are reproduced without the authors consent then the author will be entitled to damages, potentially even to an injunction to stop the infringement and have the copies delivered back to the author.

A key thing to note here is that say you are an architect and you are an employee to a practice, and you’ve created an architectural design whilst being under their employment, then the copyright will automatically reside with the practice, this is typically included in their employment contract as well, unless the practice has made the decision to leave you as the owner of that work which of course is an unsuitable thing to do from their perspective.

So obviously the main reason you want to secure the copyright of your work is so as not to let others copy the work that you have created and gain advantages, benefits and profits over your content. Intangible content is usually difficult to create but cheap to copy, such as architectural drawings and documents. Intangible assets are defined as identifiable non-monetary assets that can’t be seen, touched or physically measures and are created through time and effort. So by protecting your content you transform intangible content into intangible property whereby the content can be purchased or sold and you have the right to exclude others from using it.

So before starting design and works for a client, it is advised to agree and state in writing within the appointment documentation the copyright requirements and agreement. So you should take the necessary steps to ensure that you retain the copyright in all designs and documents that you produce and provide the client with a license to enable them to use the documentation for the intended purposes relating to the project but not for any other use or sites or for the purposes of an extension to the development. There are some instances if you are working for a government body where copyright will have to be transferred for security reasons. As a key rule aim to link any copyright licenses to the payment of the fees owed to you and if a client refuses to pay you, then you have the right to revoke their copyright license so they won’t be able to use your drawings to complete their works. The architect is also entitled to sue the client for damages for breach of contract and if it was explicit expressed within the contract that non-payment automatically revokes the license then the architect can also sue the client for copyright infringement.

There are of course instances when a client may use your drawings and documents without your consent. In order to prove that a breach has occurred architects must be able to demonstrate that copyright exists in the work, that the copyright is vested with the author, the copy used is the same as the original and that infringement was made from the original. Although this may be difficult to prove sometimes unless the similarities in the design are blatantly obvious. These similarities will need to defined, apparent, understood and agreed on to potentially present to a court if the case leads to that. Generally speaking though the copyright of the architectural drawings is for the sole purpose to be used for the works it was commissioned and the design developed for and for the specific project and not for any other use.

Buildings themselves are considered artistic works and when the act was first put together it stated that a building had to show some artistic character or design to be protected but now that’s no longer the case and only original artistic features are protected, not functional ones, e.g the methods of construction. Infringement with copying a building can be proven if it’s obvious that the building has been copied even to the smallest detail, if the number of windows are the same for example that’s not enough reason to consider it as an infringement.

Copyright is infringed where either the whole or a substantial part of the work is used without the author’s permission, unless the copyright falls within the scope of one of the copyright exceptions. Although a substantial part is not defined in copyright law but it has been interpreted by the courts to mean a qualitatively significant part of a work even where this is not a large part of the work. So it is quite likely that even a small portion of the whole work will still be a substantial part.

So when do you not need to ask for permitted use of the copyright works:

You would not normally need to seek permission if you wish to use less than a substantial part of a copyright protected work. There are a number of exceptions in copyright law which allow limited use of copyright works without the permission of the copyright owner, which is for:

Non-commercial research and private study.
Criticism, review and reporting current events.
Teaching in educational establishments.
Helping visually impaired people.
And Time shifting.

Some exceptions require you to provide sufficient acknowledgment when making use of a copyright protected work, so if you are using a photographers image for example you need to mention the photographers name. It is not an infringement of the copyright in a work if you draw, take a photograph or make a film of, buildings or sculptures or works of artistic craftsmanship which are located in a public places or in premises open to the public.

There are two types of copyright infringement, primary and secondary.

Primary infringement is by:

Infringement of copyright by copying.
Infringement by issue of copies to the public.
Infringement by performance, showing or playing of work in public.
Infringement by broadcasting or inclusion in a cable programme service.
Infringement by making adaptation or act done in relation to adaptation.

Secondary infringement is by:

Importing infringing copy.
Possessing or dealing with infringing copy.
Providing means for making infringing copies.
Permitting use of premises for infringing performance.
Provision of apparatus for infringing performance.

As mentioned previously, if someone has infringed your copyright then as the author you will be entitled to damages. However, damages are not available if, at the time of the infringement, the author didn’t know, and had no reason to believe, that copyright had occurred in the work.

The remedies for copyright infringement involve:

Requesting an emergency injection pre-trial to stop construction of a building that infringes copyright
The architect can obtain damage as mentioned
Or the architect can claim account of profits in preference to damages, although this is a relatively difficult process and the architect doesn’t receive the full profit made by the client

To sum up what I’ve discussed today:

Original literary, dramatic, musical or artistic works
Sounds recordings and films
And the typographical arrangement of published editions.

And in very simple terms, copyright means the right to copy and the right to stop others copying.

As architects, when we express our ideas under the Copyright Act this expression of ideas is protected.

So the architect has the automatic right of the copyright but you may need to prove this by keeping records of when it was created and adding your name and date to it. So as the owner of the copyright, architects have the right to:

Copy the work
Issue copies of the work
Make an adaption of the work
Or even sell it

Before starting work for a client make sure you put in writing within the appointment documentation that you are the owner of the copyright and you will provide the client with a license to be able to use the architectural drawings and documents for the sole purpose of the work it relates to. If the client for any reasons fails to pay the architect then the architect has the right to revoke that licence or sue the client for breach of contract and/or copyright infringement.

There are some instance where copyright isn’t required and this is when the material is uses for:

Non-commercial research and private study.
Criticism, review and reporting current events.
Teaching in educational establishments.
Helping visually impaired people.
And Time shifting.

And there are two types of infringement, primary and secondary and the author will be entitled to damages from copyright infringement.