Article by Nitzan Ingber

Section 32 of the Copyright Act 1968 (Cth) (‘the Act’) provides that copyright subsists in an original unpublished artistic work. Under section 10 of the Act, a drawing (including a diagram, map, chart or plan) is considered to be artistic work whether the work is of artistic quality or not. Architectural drawings are therefore protected under copyright law.

Infringement of copyright will occur when the plans have been copied or otherwise reproduced. Therefore, the construction of a building according to plans is in fact reproducing a 3-dimensional model of a 2-dimensional work and can infringe the copyright of owner if unauthorised.

How original does the work have to be?

When planning a house or a project there is often close collaboration between the architect and the owner, whereby the owner shares his/her ideas and vision, sometime to the effect that the final result is an exact representation of the owner’s own ideas.

Nevertheless, even if each individual part is considered in isolation, it may not originate from the architect’s ideas or design, there can still be copyright in the whole plan if the combination and arrangement originated with the author. In protecting that origination, copyright law protects the author’s labour, skill and judgment.

The requirement that the artistic work be original means that the work originated from the author and was not merely copied from another work. It requires some independent intellectual effort, but does not require novelty or inventiveness (IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458).

Reservation of rights in architectural plans

While the copyright may be the property of the architect or designer, when engaged for a fee, they effectively provide the owner with a licence to use the plans for the purpose for which they were created.

Accordingly, contracts for the preparation of architectural or construction plans have been construed by the Courts as including an implied licence by the author of the plans to the person for whom the plans were prepared, to use the plans for their intended purpose (see Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577; Beck v Montana Constructions Pty Ltd (1964) NSWR 229).

Problems arise when an owner wishes to use the plans for a different purpose, or where the contract for the preparation of the plans reserves the copyright in the plans and explicitly limits the use permitted under the license.

Such incidents may occur when the owner wishes to engage a different construction company than the one that originally prepared the plans, or replace an architect after the plans have already been used for the purpose of obtaining a development approval.

In the High Court decision in the matter of Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 [59], it was held that once development consent has been granted, the licence becomes irrevocable, as one of the purposes for which the plans were prepared has been achieved. However, the courts have tended to examine each case on its facts to see whether such implication is otherwise inconsistent with the agreement between the parties.

Practicalities for clients

If you have plans drawn up for you by an architect or a builder and you wish to appoint another contractor to use those plans in a different manner to the way originally intended, you should check your contract for provisions regarding copyrights, and seek the consent of the author to use the plans.

If you are an architect or a builder you may want to include a reservation of rights in your contract of engagement.

Please contact us if you require further details or advice on the scope and operation of copyright clauses.

Nitzan Ingber

Tim Lynch