What do I need to do to obtain copyright?
The simple answer is nothing. Copyright is an “automatic right”.
Contrary to popular belief, there is no formal copyright registration process. Creators of works including building plans, designs, or drawings, are afforded copyright protection under the Copyright Act 1968 (Cth).
Copyright arises when the work takes material form. For example, when an architect sketches, draws or physically creates original plans, designs, or drawings.
Copyright does not however protect mere ideas or general concepts such as windows or doors that are common to any building.
Who owns the copyright?
Unless you are an employee (in which case your employer will usually own the copyright) or you assign copyright in your work, you are deemed to own the copyright in your works. This means the works cannot be reproduced or published without your consent.
Importance of a written contract
To provide the best copyright protection, when commissioned or engaged to prepare plans or drawings, the agreement between architect and client should be subject to a written contract. The contract should stipulate the terms on which the works can be used by the client. This will usually be by way of:
- “exclusive licence” – grants the client singular permission to use the works; or
- “non-exclusive licence” – provides freedom in the number of licenses granted while allowing the architect to retain the rights to further develop and use its own designs.
The written contract should also provide clear and precise clauses allowing you to revoke the licence if your client fails to pay your fees.
What could happen if I don’t have a written contract?
If you don’t have a clear written contract, you may unknowingly be granting your client an “implied licence” to use the works regardless of if they have paid your fees.
Breach of copyright
Works reproduced like-for-like are not the only instances that trigger copyright infringement. If part of the works has been copied, a copyright breach might have occurred if the part or element of the copied works is important or ‘substantial’. This is determined on a case-to-case basis and the Court will consider whether important elements of an original plan or design have been replicated such as a unique or distinct feature of architectural drawings. Even if the feature copied comprises only a relatively small component in comparison with the overall size of the plans, a breach of copyright can still arise.
As an architect you need to be careful when you are asked to modifications to plans provided to you by homeowners to ensure you are not infringing on someone else’s copyright.
Action that can be taken if copyright is infringed
If your client has breached your copyright, the following remedies can be sought:
- An injunction – an order from the Court preventing your client from constructing or building to the drawings/plans.
- Orders for damages – compensation for time and costs spent designing the drawings/plans. Punitive damages can also be awarded in circumstances where there has been a flagrant copyright infringement.
- Order for or an account of profits – an award for the profits received by your client infringing the copyright.