Free advice

A recent case in Britain highlights the risks associated with giving free advice.  It is very tempting to be casual in arrangements with friends or with the club where you are a member, but in the case of Burgess vs Lejonvan, architect Lejonvan got dragged into rather prolonged legal action over some apparently innocuous landscape design done for free. 

Without going into the details of the case the lessons are as follows:

• The absence of a formal written agreement does not mean that a professional duty of care (in tort) doesn’t exist.  It’s worth noting that in a similar situation in New Zealand, if you are a registered architect, you could also face a complaint to the NZRAB for failure to observe rule 58A of the Code of Ethics.
• Even if no fee is paid, you are considered to be providing professional services and so are bound to the same standards of exercising reasonable skill and care as if you were being paid.

So…what should you do in such a situation?  Well it is always advisable to document your terms of engagement – particularly in the context of the NZRAB Code of Ethics.  If you are asked to provide advice or an opinion outside of a work situation be clear that any views/opinions you provide are not in a professional capacity and that they cannot be relied upon.

Besides, based on recent figures of fee incomes in our profession, where is the justification to undervalue our services by doing free work at all?

Copyright in Architecture

Claim notifications involving copyright matters

Ownership of copyright has arisen in claim notifications.  It is apparent that some architects do not appreciate the subtleties of it, and it is not fully addressed in NZIA Practice Note (PN 6.101).    

This paper provides an overview of copyright for architects.

Protection of literary and artistic work existed in Britain and Europe since the mid-18^th Century and was adopted internationally by the signatories of the Berne Convention of 1886.  It has been expanded and developed by many countries, particularly in response to digital communication.

The NZ Copyright Act 1994 superseded earlier legislation and was introduced to align with copyright legislation in countries that were then about to enter the TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights).  It provided recognition of copyright ownership and ensured that copyrighted material in one country could not be imported or transmitted to another.  This was particularly relevant for the digital transfer of films, music and computer software programmes.  

Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts.

Copyright:

The NZ Copyright Act 1994 covers intellectual property rights and controls in respect of copying, publication, transmitting, archiving, and educational use of literary, dramatic, musical and artistic works, sound recordings, films, communication works, computer programs and the typographical arrangement of published editions.  

The provisions relevant to architects are included within the description of literary works and artistic works which includes graphic works (painting, drawing, diagram, map, chart or plan) or models, irrespective of their artistic quality;  architecture and buildings is a sub-set of artistic work .

Architectural copyright

The following brief outline is related to architectural copyright in the broadest context and will include the nature of copyright protection as envisioned in NZIA AAS.

General Rules: The author of copyright is the person who creates the work which is the subject of copyright.  The author may be a natural person or a body corporate.  In some circumstances, there can be joint authorship.  The author is the first owner of the copyright interest.

When a copyright author is an employee, the first copyright owner is their employer.  When a person pays, or agrees to pay, for the copyright work, that person is the first copyright owner.

Copyright ownership can be assigned or sold as a property right, but the transfer is not effective unless it is confirmed in writing and signed by or on behalf of the copyright owner.

Many architects appear to believe that, as a matter of principle, they have the copyright ownership of their plans and/or designs.  This is a false premise in the first instance; the design documentation belongs to the client who commissioned the work.  The escape route for architects lies in the written assignment opportunity and this is provided for within the NZIA AAS, wherein the client agrees to transfer their copyright ownership to the architect, who in exchange provides contractual consideration and provides to the client a license to utilise the copyrighted work for their intended purpose.  This NZIA copyright ownership is not effective unless the AAS, which defines the assignment relationship, is signed by or on behalf of the client.  Without this signed agreement, or similar signed agreement, the first design copyright owner is the client.  Furthermore, the transfer of copyright ownership is not conditional upon the execution of payment, but rather the agreement to pay for the design copyright.  (As an aside, the ADNZ agreement for services provides for the designer and client to share joint ownership of the design copyright, which shall only become effective upon satisfactory payment of their agreed fee.)

Copyright protection exists for 50 years following the death of the author and is subject to the laws of survivorship.  Copyright is infringed if the work is copied and/or transmitted without the copyright owner’s consent.  In cases of alleged infringement of copyright, the Act provides a right for a copyright owner to initiate legal proceedings to recover damages, seek an injunction or any similar property rights and remedies.  But this is not without reliable evidence and legal argument and creditable defence.

In legal proceedings, an architect will need to establish that he or she is the current copyright owner of the architectural design drawing.  To this end, it is helpful to have a statement relating to the copyright ownership incorporated in the plans or drawings belongs to the architect.  This statement (or a recognised copyright symbol consisting of the letter “c” enclosed within a circle) will be sufficient to put the infringing copyist on notice of the existence of copyright.  If this precondition is fulfilled, then a prime facie case of copyright ownership will have been established.  This will enable a copyright owner to seek legal recovery upon adequate proof, of damages or other appropriate property relief.  If it is proved or admitted that the defendant did not know and had no reason to believe that copyright existed in the work which is the subject of the proceedings, then the plaintiff is not entitled to damages, but is only entitled to an account for profits.  In respect of a building under construction, no injunction order to prevent building completion, nor to require the demolition of a partly constructed building, may be made after the construction of a building has begun.

Copyright infringement litigation will generally benefit from the presentation of expert witness evidence which should clearly indicate the nature and reasoned extent of artistic or architectural infringement and may identify similarities and differences of copyrighted features for comparison purposes.  Because of litigation risk and costs, architectural copyright infringement allegations are settled confidentially by negotiation.  It is an offence against the Act to claim copyright when you are not the copyright owner.

It is possible for two or more separate individuals to independently come to a similar design solution this may not amount to a breach of copyright.  This is particularly apparent in an architectural work which was required to satisfy a similar design brief on a similar sized site with similar constraining features and similar planning constraints or covenanted conditions which limit the form, style and cladding materials.  However, if the plaintiff’s evidence can establish that a defendant had access to the copyrighted plans or building, then this may support a claim for infringement of copyright.  The definition of building includes any fixed structure and a part of a building or fixed structure.

It is not uncommon for more than one architect to be involved in different aspects of a building design. In such cases there may be an overlap of copyright ownership interests.  This should be carefully considered by each architect to ensure that their respective claim for moral copyright is clearly defined and that any promotional material clearly reflects their respective interests in a manner which doesn’t contravene the NZRAB Rules, particularly Rule 46 Uphold the law (including copyright); 47 Honesty and Fairness; and 57 Reputation.  If an architect is commissioned to undertake alterations to another architect’s designed building, then it would be prudent to advise the original author who retains the moral copyright, so that the author may have an opportunity to photograph the original work before it is altered.

Derogatory treatment:  The Act prohibits the derogatory treatment of an artistic work.  Under a similarly worded Australian Copyright Act, Harry Seidler is said to have objected to the placement of a distinctive advertising sign for a Pig’n’Whistle Traditional English Pub tenancy within a Riverside building project in Brisbane.  Mr Seidler litigated, but settled out of court in a confidential document which allegedly required Pig’n’Whistle to acknowledge that Mr Seidler had nothing to do with the design of the neon pig sign that was attached to his Riverside development building.

Case Studies

Copyright infringement in NZ was considered in Beazley Homes Ltd v Arrowsmith [1978] 1 NZLR 394 (HC).  The plaintiff was a group builder who provided a range of plans for low cost houses for their customer’s selection and subsequent purchase of the built house.  The defendant operated a similar styled business for its customers.  Beazley alleged that three houses built by Arrowsmith were copied from their stock plans and sought relief in the form of injunction, damages and delivery up of the copied plans.  Evidence was produced that Arrowsmith had access to and had copied the Beazley plan.  The case was decided according to the earlier 1962 Copyright Act which was less prescriptive than the current Act.  The Court held that Arrowsmith infringed the architectural copyright owned by Beazley and issued an order for injunctions and associated relief.

A much publicised and apparent blatant breach of architectural copyright occurred with the construction in Chongqing of a copy of Zaha Hadid Architects Wangjing SOHO project in Beijing.  China, however, does not appear to recognise copyright infringement as effectively as do recognised countries in the TRIPS Agreement.  ZHA and their client decided not to pursue for infringement of copyright for unrelated commercial reasons; they wanted their building completed first.

A more mundane example occurred when an architect specified a particular furniture manufacturer’s product or similar approved furniture, for inclusion in a tender for the interior fitout and furnishing of a large hotel complex.  The successful contractor provided an identical copy from another source.  This resulted in the specified manufacturer recovering damages for copyright infringement.

In two distinctly different, but similar examples.  Architect A prepared the initial concept design for a building which was further developed and documented by architect B.  Architect A promoted the completed building by implying that it owned the moral copyright of the completed building.  In the other example, architect X completed the developed design, documentation and construction observation services for a project which had been conceived conceptually by architect Y.  Architect Y considered, perhaps incorrectly, that X had infringed its architectural copyright.  (Neither architect appeared to have acknowledged the respective copyright interest of the other.)

Architect P designed a house in a form which replicated that of a traditional Japanese temple.  The owner Q had earlier built a house to a similar design and alleged that P had infringed Q’s architectural copyright.  It was argued on P’s behalf, that Q did not own the artistic or architectural copyright to a traditional Japanese temple which was in the public domain and secondly it was established that P was unaware of Q’s building, had not sighted their drawings, nor visited the site.  The matter was settled by correspondence.

Plagiarism:

Plagiarism isa close, but distinctive relative ofcopyright.  Each occupies a parallel path, but cover different considerations.  Copyright infringement is a legal matter, plagiarism is an ethical one which does not acknowledge the source or author of the copied work.  Copyright and plagiarism can also coexist.

A celebrated British case involving architectural plagiarism was Pearce v Ove Arup Partnership [1997] Ch 293.  In this case, Gareth Pearce, an unemployed architect at the time, claimed that his student design project for a Docklands Town Hall was essentially copied, without acknowledgement, by Rem Koolhaas in his design for the Kunsthal which was constructed in Amsterdam some years later.  Pearce produced evidence that Koolhaas had sighted and copied his student project design drawings.  This was rejected by the High Court judge and Pearce’s expert witness was referred by the judge to the Registered Architects Board UK, as a disciplinary complaint.  The Disciplinary Committee following extensive evidential inquiry, determined that the expert witness had acted properly and, surprisingly, Koolhaas’s legal counsel admitted that plagiarism had occurred.  

The Act has 270 clauses.  Here are some salient clauses that may be of particular interest to architects.  These are subject to judicial interpretation and precedent;  Copyright concerns should always be referred to experienced legal counsel for advice.  

Definitions:  Copyright Act 1994 references are noted thus [ ].

Copyright:  Copyright is a property right that exists in original works including, inter alia, literary or artistic works, which includes a graphic work, or model, irrespective of artistic quality, or a work of architecture, being a building or model of a building or a work of artistic craftsmanship.  Building includes any fixed structure and any part of a building. [14]

Duration of copyright:  In the case of any literary or artistic works, copyright expires 50 years following the death of the author. [22]  The Crown is bound by the Copyright Act, but its ownership right expires 100 years after the work was made. [26]

Author:  The person who creates the work, in this case, the literary or artistic work.  The author may be a natural person or a body corporate. [5]  Joint authorship exists when two or more authors contribute in an indistinct manner. [6]  The author must be a NZ citizen or an individual domiciled in NZ or a body corporate registered in NZ, or alternatively have similar characteristics in a prescribed foreign country. [18]

Copyright owner:  The copyright owner is the person entitled to the copyright in the work.  The owner of thein a work has the exclusive right to copy the work or to make adaptions to the work and to authorise another person to do so. [16]

First ownership of copyright:  The first owner is the author of the work.  Where an employee in the course of their employment makes a literary or artistic work, the person’s employer is the first owner of any copyright in the work.  Where a person commissions, and pays or agrees to pay for, the making of a drawing, diagram, plan or model, that person is the first owner of any copyright in the work. [21]

Publication:  Means the issue of copies of the work to the public.  In the case of a work of architecture in the form of a building, or an artistic work incorporated in a building, construction of the building shall be treated as equivalent to the publication of the work. [10(2)]  However, in the case of a work of architecture in the form of a building or model for a building, or a work of artistic craftsmanship, the issue to the public of copies of a graphic work representing or of photographs of the work, do not constitute publication for the purposes of the Act. [10 (4c)]

Copyright infringement:  Occurs when any person does any restricted act which includes copying, the importation of copyrighted works and possessing and dealing in copyrighted works. [30; 35; 36]

Criticism, reviews and news reporting:  Fair dealing with a work for the purposes of criticism or review, does not infringe copyright in the work if such fair dealing is accompanied by sufficient acknowledgement. [42(1)]

Making of subsequent works by same artist:  Where the author of an artistic work is not the copyright owner, he or she does not infringe copyright in that work by copying the work in making another artistic work, if the main design of the earlier work is not repeated or imitated. [77]

Reconstruction of buildings:  Anything done for the purposes of reconstructing a building does not infringe copyright in the building or in any drawings or plans with which the building was constructed. [78]

Back-up copy of computer program:  Copyright in a computer program is not infringed by making a back-up copy intended to preserve the original in case of its loss, destruction or rendered unusable. In such circumstances, the back-up copy is deemed to become the original copy. [80]

Moral right:  The author of a literary or artistic work that is a copyright work has the right to be identified as the author of that work. [94]  The author of a work of architecture in the form of a building has the right to be identified as such on the building as constructed. [94(7)]  Identification is by appropriate means visible to persons entering or approaching the building. [95]  Such moral right may be asserted generally on an assignment of copyright, or at any time by instrument in writing signed by the author. [96]  Moral rights are not assignable. [118]

Licence:  A licence granted by a copyright owner is binding upon any successor in title of that person’s interest in the copyright. [111]

Assignment:  An assignment of copyright is not effective unless it is in writing and signed by or on behalf of the assignor. [114]

Remedies for infringement:  An infringement of copyright is actionable by the copyright owner.  Relief is in the form of damages, injunctions, accounts or otherwise as available to plaintiffs in other property rights. [120]  Where the defendant did not know, and had reason to believe, that copyright existed in the work, the plaintiff is not entitled to damages, but is entitled to an account of profits. [121]  In respect of the construction of a building, no injunction or order can be made after the construction of a building has begun, nor require any such building, in so far as it has been constructed, to be demolished.

Graham Strez 10/01/2020