Far too often in our daily operations we see builders and clients not having a clear understanding of the laws relating to copyright and single use licencing. As professional residential building designers it is our responsibility to understand these laws that directly relate to our industry and the unlawful use of not only our designs but other architects and building designers. Below is a Workplace Services Information Sheet published by the HIA (April 2011), we believe this document is a great reference which outlines the laws of design and single use copyright.
What is copyright?
Drawings, house plans and sketches are protected by the laws of copyright. This means that the owner of copyright has the exclusive right to use their own work. Copyright can be owned, assigned, bought and sold, however this would need to be done by written agreement.
Do I have to register my copyright?
No, there is no registration procedure for copyright. Generally speaking copyright is created when the creator puts their ideas onto paper.
Who owns the copyright?
This will depend on how the plans came into existence and what contractual agreements were in place for their creation.
If the answer is YES, then the copyright in the plans will be held to be the property of you or your Company.
If the answer is YES, they will retain ownership in the copyright unless you have made an alternative agreement in writing. In some cases, builders will pay a fee to the architect or draftsperson to use the plans for a particular job. However this does not necessarily mean that you have purchased the right to use those plans as you see fit and as many times as you like. The payment of a license fee will usually only entitle you to use those plans for one job.
If the answer is YES, you should ask the client:
How do I know if I am infringing on another person’s copyright?
You cannot reproduce a plan or part of a plan without the copyright owner's permission. If you are building from plans without the permission of the owner, you are breaching copyright.
What can I do to avoid infringing on copyright?
Frequently Asked Questions on Copyright
If the client developed the sketch and it is not a copy of someone else's plan then the client owns the copyright to the sketch.
The infringing builder becomes a party to the breach of copyright and is most likely to be joined with the client in a claim.
Technically no, but this will not stop the claiming party from joining the builder with the infringing client in an action for damages. The builder will need to prove that they did not know about the breach of copyright. Whilst the builder will normally have a right of indemnity against the owner, this right will need to be established, and assumes the owner has capacity to pay.
The draftsperson or professional owns the copyright to the plan drawing unless it is assigned to another party. The client owns copyright in the original sketch.
You cannot be totally sure unless you know how the other builder developed the disputed plan. You will need to show that the disputed plan is substantially the same as your plan. You will need to identify unique features that are your copyright, and you will need to get the appropriate legal advice.
Unfortunately there is no straight forward answer to this question. Some factors to consider when assessing the chances of breaching someone’s copyright include:
The builder should immediately seek legal advice.
* References: Workplace Services Information Sheet HIA