Anti-copying in design

Copyright Act protects work for life of the architect plus 50 years
Monday, May 31, 2010
By Andrea Lee

Copyright is defined by Canada’s Copyright Act as the sole right to produce or reproduce a work or any substantial part thereof in any material form.

An architect’s copyright protects the work for the life of the architect plus 50 years. That work must possess at least some individualistic style and have “something apart from the common stock of ideas” to be copyrighted.

Copyright differs from the moral right of an architect, which is defined as the right to protect the integrity of the work and to be associated with the work as its author. The moral right in an architectural work exists for the architect’s life plus 50 years, and can be transferred upon death.

Generally, a standard form contract between an architect and a client provide that the copyright in the architect’s plans, sketches, drawings and materials belong to the architect and remain their property regardless of whether the project is executed or not. However, where the architect produced the work under a service contract or an apprenticeship, the employer of the architect owns the copyright in the work.

A standard form contract permits the client to retain copies of the architect’s drawings for purposes of maintenance and records related to the work. The drawings may be copied only for a one-time use in respect of the same site and for the same project, and shall not be used for the purpose of renovation, addition or alteration to the project unless written consent is obtained from the architect.

An architect may assign copyright and grant any interest in copyright by licence. The architect may revoke consent to the transfer of copyright if it was given without consideration.

In the event a dispute arises between the client and the architect, the client must pay the architect before using or modifying the design. Payment for the architect’s services implies the transferral of the right to use the plans for the purposes contemplated at the time the client-architect agreement was made.

Where the client ends its relationship with the architect and retains another to continue the work, the new architect should obtain the written permission of the original consultant to use the design. In addition, the new architect should obtain from the client written acknowledgement that the previous architect has been paid and the right to use the drawings has been transferred. The original consultant should be credited for the work done prior to the retainer of the new architect.

The Copyright Act provides that upon infringement of copyright, an architect is entitled to such remedies as injunctions, damages, accounts and delivery up. If the construction of a project that infringes an architect’s copyright is already underway, the architect will not be able to obtain an injunction halting construction or an order for destruction of the project.

Canadian courts consider various factors in the assessment of damages for copyright infringement. These include: the fee the architect would have earned for the granting of a licence; the profit gained by the infringing party; the loss of opportunity to enhance the architect’s reputation; the architect’s risk and exposure to liability; the amount of labour and expenditure involved in the project; and the conduct and knowledge of the individual infringing the copyright.

Punitive damages will be awarded in rare cases where there has been an intentional disregard for the architect’s rights and the direct unauthorized reproduction of the original design.

Andrea Lee is a partner at Glaholt LLP.

Leave a Reply

Your email address will not be published. Required fields are marked *