The recent Supreme Court of Queensland decision in Coles v Dormer & Ors  QSC 224 (4 August 2015) provides a valuable reminder to the building industry of exactly what is at stake when copyright in building plans is breached.
A recap on who owns the copyright
In Australia, the Copyright Act 1968 (Cth) (Act) provides that copyright subsists in original literary, dramatic, musical or artistic works. The author (or creator) of an artistic work is the owner of the copyright in that work. Relevantly, ‘artistic work’ is defined to include a building or a model of a building, whether the building or model is of artistic quality or not.
As such, there is copyright in architects’ drawings, plans and models, and it is owned by the person who created those plans. If you reproduce, or authorise the reproduction of, an architect’s plans without his or her permission, you will be in breach of the Act.
This breach will occur whether an artistic work in two dimensional form has been reproduced in three dimensional form, and vice versa. So, even if you do not copy the plans themselves, production of a building from plans, without the consent of the author of the plans, will constitute a breach of the Act.
What if I just modify the design a bit?
The Act does not require 100% reproduction of the copyrighted work before a breach of copyright will have occurred. The Act only requires reproduction of ‘a substantial part of the work’. Precisely what this means will depend on the facts of the case.
If I’m paying for the plans, don’t I own the copyright in them?
The answer to question depends on the relationship you have with the architect.
In most construction matters, where an architect is contracted to draw the building plans for a fee, the person who pays for the plans does not own the copyright in them. Usually, the owner (or builder) is merely granted a licence to use the plans for the purpose for which they were commissioned. The licence to use the plans extends to subsequent owners if the land is sold with building or development approval in respect of the plans, however the seller cannot proceed to build another building on a different site based on the same plans. The licence granted to use the plans only applies to the specific purpose for which it was contemplated by the parties at the time of the engagement of the architect.
Copyright can, however, be bought and sold. If it is important to you that you own the copyright in the plans so that you can do whatever you want with them, you can negotiate with the architect to include an assignment of copyright in the contract.
But the architect is part of my business — surely I own the plans?
Where plans are produced by an architect pursuant to a contract of employment, the copyright in the plans will vest in the employer. However this is not the case with independent contractors. If you use an in-house draftsperson, you may need to check whether that draftsperson was engaged as an employee. If they are engaged as an independent contractor, you may not own the drawings they produce for you unless you specifically say so in their terms of engagement.
What’s the worst that could happen if I breach copyright laws?
In Coles v Dormer & Ors, the claimant purchased a house for $1.15 million that had been designed in essence by the original owners who had then engaged an architect, Gregory Skyring, to finalise and draw the plans for the house.
Shortly after buying the house, the claimant discovered that a couple who had unsuccessfully bid on his new house loved the design so much that they intended to build the same house in the same estate. In fact, they even engaged the builder of the claimant’s house to build their new house.
Concerned about the rumours he was hearing, the claimant approached the architect, Mr Skyring, and purchased the rights in the building plans. Even though Mr Skyring’s plans had been used to build the house, the original owners only had a licence to use the plans to build the house. The copyright in the plans had remained with the architect.
Having safely secured the copyright in the plans, the claimant put the builder on notice of that fact and formally objected to the construction of a house identical to his. The builders pressed on regardless, and built another house using Mr Skyring’s plans, that was substantially similar to the claimant’s house.
The court found that both the builders and the owners of the copy-cat house were in breach of the Copyright Act. Accordingly, the judge ordered the defendants to significantly change features of their copy-cat house (two years after the house had been completed!). The defendants were ordered to:
- Remove and replace the dormer roofs;
- Remove the arched and circular windows at the front of the house and such other arched and circular windows as are ordinarily visible from public paths or streets and replace them with square or rectangular windows, concealing any outline of the arched or circular window shapes by rendering; and
- Grind, cut away or remove the areas of the stone edge trim corners at the front of the house and such other stone edge trim corners as are ordinarily visible from public paths or streets to the extent necessary to render those areas flush with the walls and fill and conceal with render any remnant appearance of the stone edge trim.
In addition to undertaking these measures to alter the appearance of the house, both the builder and the owners of the copy-cat house will have to pay the claimant either damages or an account of profits, at the claimant’s election, as well as a significant proportion of the claimant’s legal costs.
If you would like to know more…
As you can probably tell by now, it can be a very costly and unrewarding experience (both for the owner and the builder) to use building plans, or replicate a building, when you do not own the copyright in the relevant plans or have a licence to use the plans for that purpose.
If you would like know more about your rights and obligations in relation to building plans, the specialist Construction Dispute Resolution team at Meyer Vandenberg can advise you.
For more information contact: