When planning a development and construction project, one of the key early steps is to put together the building design plans for council approval.

Building designs and architectural plans and drawings are subject to copyright. Parties that use them without the permission of the person that created them do so at the risk of being sued for copyright infringement.

To alleviate this risk, it is incumbent upon developers, builders, building designers and architects to consider:

a) where have the plans been sourced from, i.e. who created the plans; and

b) has that person granted permission for the plans to be used for the relevant project.

What is Copyright?

Copyright in Australia is governed by the Copyright Act 1968 (Cth) (the “Act”).

Under the Act, the creator of original “artistic works” automatically has the exclusive rights to:

(a) Reproduce the work in a material form;

(b) Publish the work; and

(c) Communicate the work to the public.

“Artistic works” includes drawings (such as diagrams, maps, charts or plans) and buildings (includes structures of any kind) or models of buildings, whether they are of artistic quality or not.

Commonly, building designers or architects will retain the intellectual property in the design plans but grant to their client a licence to use the designs to carry out the project.

Using, reproducing or publishing a substantial part of another party’s building designs and plans without that party’s permission is copyright infringement.

In a worst-case scenario, the party whose designs have been used without their permission will sue the property owner, the builder, and any other designer, architect or consultant involved in the project to recover damages arising from the breach of copyright.

It is a matter for the court to determine on a case by case basis whether substantial reproduction has occurred, and in particular if the reproduced works are an essential or material part of the design.

Minimising Risk

To limit the risk of potential claims for copyright infringement:

• Property owners and developers should:
  • consider hiring a suitably qualified building designer or architect to prepare original plans for them. If undertaking a build which is inspired by an existing design, it is best practice to describe in words the conceptual elements of that design to the building designer or architect so they can then prepare an original design which is their interpretation of that concept;

• • ensure they are using those plans within the scope of what is permitted by the person that created them. For example, if plans have been prepared for one project, they should not use them for another project without requesting permission.
• Building designers, architects, as well as builders who are engaged on a design and construct basis should:
  • be very cautious when using plans provided by the client, and carefully vet where the client got the plans from and confirm that the client has full permissions to use those plans for this project;
  • if being asked to prepare a design based on pre-existing designs, drawings or plans, ensure that in their contract they are appropriately indemnified by the client against copyright infringement claims;
  • ensure that their contract with the client sufficiently protects them against copyright infringement; and
  • check with their insurance broker and ensure they have professional indemnity insurance which appropriately provides cover for errors, omissions or failures in the performance of professional duties.
• Builders and subcontractors who are engaged on a construct only basis should ensure that in their building contract they are appropriately indemnified by the client and against copyright infringement claims.

Take away

Whether you are a developer, builder, building designer or architect, it is important that you have a clear understanding of copyright and the implications of infringing copyright.

Our team at Keystone Lawyers are experts in building and construction law and IP law relating to building and design works. Please feel free to reach out if you would like assistance with reviewing and negotiating your construction and design services agreements.