Copyright is a broad and flexible right which protects a range of creative ‘works’ including literary works (such as architectural notes and descriptions), tables, compilations and databases (such as a database setting out the steps, stages, materials and resources needed for an architectural project), computer code/programs (such as software used to create architectural drawings or to manage architectural projects), artistic works (such as architectural drawings, diagrams, maps, charts, plans, collages and sculptures), and architectural works (such as buildings and other fixed structures, parts of buildings and other fixed structures, and models for buildings or other fixed structures).
In short, there are various materials forming part of the architectural process which may be protected by copyright.
Unlike other intellectual property rights such as patents and trade marks, no application, filing or registration is necessary to secure ownership of copyright in architectural works.
Rather, copyright law provides that copyright arises automatically from the moment of creation, and vests (i.e. is owned by) the author or creator of the copyright work. Therefore, the first and most important step, when it comes to protecting the copyright in your architectural materials, is to prove that you actually created those materials and to retain a fixed record of the creation.
The best way to create and maintain this record is digitally/electronically (e.g. emails, CAD drawings, photographs etc. All records should incorporate your name/signature, the date and a copyright notice (e.g. © Copyright Joe Architect 2022. All Rights Reserved.). And all records should be emailed to yourself and/or saved in the cloud (e.g. your Gmail, Google Drive or Dropbox account). Digital/electronic documents are digitally dated and email/cloud storage providers digitally date documents and emails (which provides good evidence if you ever need to prove that your created your architectural materials on or before a particular date).
The presence or absence of the copyright notice referenced above, does not impact copyright protection (i.e. copyright protection will not be lost, gained, improved or disimproved by applying or not applying the copyright notice). However, by applying the copyright notice, you ‘assert’ copyright ownership and put the public on notice that your architectural materials are works protected by copyright, and that you are the copyright owner.
There are exceptions to copyright vesting automatically in the author or creator of a copyright work. The first exception is where the author is an employee acting in the course of their employment, in which case the employer automatically owns the copyright instead of the employee. In other words, if you work as an in-house architect or designer, your employer will likely own any/all architectural works/materials created by your in the course of your employment. Another exception is where the default position is reversed or modified by a contract entered into between the author and a third party. For example, if a client engages you to create architectural drawings for a house, and the parties enter into a services agreement in advance stating that the client will own the copyright in the drawings, then the client and not the architect will own the copyright. In practice, most architects’ standard terms and conditions provide that the architect will retain ownership of the copyright in the drawings, and that the client will have a licence to use the drawings to build the house. However, the terms of the licence usually would not permit the client to build multiple houses to the same design/drawings and usually would not permit the client to sell/transfer their rights in the drawings under the licence to someone else (without the consent of the architect).
Understanding what copyright protects is as important as understanding what copyright does not protect.
For example, copyright does not protection mere concepts or ideas. Therefore, if you disclose the idea underlying an intended architectural protect to a third party, but never actually reduce your idea to writing, copyright will not help you if that third party takes/uses your idea. This is because copyright protects the expression or fixation of an idea, but not the idea itself. In the scenario described above, if you want to prevent a third party from taking/using a confidential idea that you have disclosed to them the best course of action is: (a) not to disclose the idea in the first place; or (b) if you must disclose the idea (e.g. to a client, developer or other collaborator), enter into a written non-disclosure agreement in advance (in which case, the law of confidence and the law of contract is protecting you, rather than the law of copyright).
Second, copyright may not enable you to prevent a third party from using minor/insubstantial elements from your architectural drawings. This is because copyright only protects a creative work if the whole or a substantial part of that architectural work is taken/used without authorisation/permission. In addition, there are a number of ‘fair dealing’ and/or ‘fair use’ defences/exceptions to copyright protection which permit third parties to use copyright works without permission (e.g. for criticism or review, for caricature, parody or pastiche etc.). If there are key aspects/sentences of your work that you are determined to protect (e.g. a particular image or model), it may be possible to protect those materials as a registered design (in which case, as above, the law of registered designs is protecting you, rather than the law of copyright).
After you have identified the architectural materials that you want to protect, and after you have taken the steps necessary to protect copyright (i.e. maintaining records of your work and entering into a contract if applicable), the next step is to consider how to commercialise your copyright and/or enforce your copyright should you need to do so.
Copyright is usually commercialised by assigning/selling your copyright (i.e. transferring full ownership of your copyright to someone else for money) or by licensing/granting rights in your copyright (i.e. retaining ownership of your copyright, but authorizing someone else to use it; usually subject to certain conditions or restrictions). The most common types of licence in the context of architectural projects arise in the architect’s standard terms and conditions (as described above) or in more substantial collaboration/construction agreements (e.g. for larger architectural projects, there may be multiple parties involved in a joint venture or other collaboration and there may be more complex terms agreed regarding copyright ownership/permissions).
Copyright can be enforced in a number of ways. If your architectural materials are reproduced or distributed online without your permission, it may be possible to issue a ‘take down’ notice via the online platform on which your work has been posted (e.g. Amazon, Facebook, Twitter, Instagram, YouTube etc.). If you do not get satisfaction by making a complaint to the platform, and/or if the infringement does not take place online (e.g. if a building is constructed to your architectural drawings without authorisation/licence), the first step is usually send a formal cease and desist letter or letter before action to the infringer, setting out the details of your infringement claim, and putting the infringer on notice that unless the infringement stops and/or you receive appropriate compensation and/or an appropriate explanation/defence within a short period of time (usually 14 days) court proceedings will follow. Compensation in architectural copyright cases is often determined by reference to the lost licence fee (i.e. the fee that the architect would have charged, and that the infringer would have paid, had the parties negotiated a licence for the infringer to use the copyright in the first place).
In many cases, that formal cease and desist letter will be sufficient to bring the matter to a close, so it is always worth asserting your rights, even if you think that would not have the funds and/or the appetite to issue a court claim. If the first cease and desist letter doesn’t do the trick, it may still be possible to achieve a good outcome by applying pressure (e.g. sending a further letter or sending court papers in draft form) and/or by ultimately issuing a claim. Therefore, it is always worth taking advice from a copyright/IP expert as early as possible to ensure that you follow the correct procedure and avoid any missteps.
Briffa are experts in all aspects of copyright law and practice. If you have a question or concern about the protection, commercial and/or enforcement of your copyright, please get in touch to arrange a free consultation.
Written by Éamon Chawke – Partner
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