Copyright and Residential Housing Design
Ronny Matzat | 08 Jul 2019
CASE STUDY
A person who has purchased land at the Sunshine Coast wants to build a house for himself and his wife. He contacts you for an initial consultation to discuss the overall project and requirements. During the meeting he presents you with a set of architectural drawings which he contracted a local building designer / architect to prepare. He tells you that he spent about 2 years working closely with the designer, but when builders were approached during the tender phase for these set of plans, they were not able to bring the project in on budget. Hence, the build never happened.
He and his wife absolutely love the design and are currently shopping around for other builders being able to do it on budget. Through a colleague at work, he heard about your business and after looking at some of your recent works he believes you can build the designed dwelling on budget and make the necessary changes. The design prepared by the previous building designer / architect was planned to be a concrete structure, which at the time was his preferred option. To meet his budget, he is now prepared to change it to a timber structure and wants you to have a look at it to provide advice on the possibility of meeting his budget without changing the design too much.
After discussing further details with him in person, you agree to have a closer look over the design. You have a network of local building professionals to assist you in building the residence. He hands over the previous plans to you.
After discussions with your network of building professionals you came up with a plan on what needs to be changed in order to bring the project in on budget. Together with your preferred building designer on this project, you arrange a follow-up client meeting, where you present your ideas and the way forward. He is happy with the proposed, signs a fixed fee contract and the project goes ahead.
About 1,5 years later the project is completed and he and his wife are happily living in their new home. Around the same time the initial designer / architect, decides to drive by the plot of land out of curiosity. When he arrives at the address, he is very surprised to see a house built and appears similar to his original design. After some quick research the building designer / architect finds the builder and contacts him. During the conversation the building designer/architect reveals that he has never been paid in full by the client for his design work and never released any license to use his design. The builder tells him that the client, when handing over the plans, ensured him personally that he had paid in full and therefore owns the copyright on the design to be built on his property. He further claims they changed over 10% of the design if not more and added that this is common practice in the industry.
If you alter the design or only use parts of it, are you breaching copyright?
Yes. Derivative works are still covered by copyright.
Copyright is infringed when a person uses all, or a “substantial part”, of copyright material in one of the ways exclusively controlled by the copyright owner without the express or implied permission of the copyright owner, where no defence or exception to infringement applies.
What is a “substantial part”?
A “substantial part” is any important, distinctive or essential part of the original material, not necessarily a large part. There have been many court cases about whether reproducing part of a work constitutes an infringement of copyright. In one case, a court held that reproducing six notes from a piece of music was found to be an infringement.
A person may also use a “substantial part” of copyright material by paraphrasing, or closely following the structure and order of another person’s work, even if they have not directly reproduced any of it.
There are no guidelines about the quantity of material, or percentage of a work, which may be used without permission, since each case depends on its own facts.
How many changes to something do I need to make to avoid infringing copyright?
Generally, making changes to something won’t avoid a copyright infringement.
If, for example, you want to use something someone else has created – on your website, or in a brochure, or even for purely personal purposes – you might need permission even if you are using only a small part of that material, or if you make changes to it.
When working out whether or not you will need to get permission, it is more important to look at what is still the same, rather than what has been changed. You will usually have a copyright issue to deal with if you are using any important, distinctive or essential part of the original material – this may or may not be a large proportion of that material.
If there is no copyright symbol or notice on the “work”, it can be freely used?
No. There is no requirement to display a Copyright symbol or register any “work” to have copyright protection. It is protected from the moment it is created.
In this example, the initial plans handed over to the builder included contact details as well as a statement of ownership and copyright protection information form the building designer / architect.
Would it have made a difference if this information was missing on the plans when the builder received it?
No. It’s the builder’s responsibility to check and make sure who owns the copyrights on the design. Australian copyright law does not require an actual copyright statement to be on the design work.)
What should the builder / new building designer have done in order to make sure the client owns copyright?
Contact the initial designer to ask him about releasing a license for the design AND have the client to provide him with an official paid receipt of the previous design.
Owners of copyright have a number of exclusive rights over their material. Anyone who wants to use someone else’s material in any of these ways generally needs permission. Different rights apply to different types of material.
Literary, dramatic, artistic and musical works
Owners of copyright in “works” have the exclusive right to:
• reproduce the work (including by photocopying, copying by hand, filming, recording and scanning);
• make the work public for the first time; and
• communicate the work to the public (for example, via fax, email, broadcasting, cable or the internet).
Key points
• The owner of a physical item does not necessarily own copyright in that item. For example, a gallery or museum does not necessarily own copyright in items in its collection.
• The Copyright Act 1968 does not allow the use of material without permission if the copyright owner cannot be contacted. If you use a substantial part of copyright material without permission, you will infringe copyright, unless an exception to infringement applies.
• The creator of copyright material is not always the copyright owner.
• If copyright is owned by an individual who has died, ownership may have passed to someone else – usually the copyright owner’s spouse or children. If a company owned copyright and it has now gone out of business, its assets, which include copyrights, may have been distributed elsewhere.
• As well as clearing copyright, you need to ensure you do not infringe the creator’s moral rights.
Where to start
It is a good idea to check whether there is a licence available from a copyright collecting society that covers your intended use. If no licence is available, the appropriate collecting society may nevertheless be able to assist (sometimes for a fee) in finding the copyright owner.
Often you can get information about how to contact the copyright owner from the material you want to use. Copyright notices that appear on CDs and on the imprint page of books usually name the owner of copyright and sometimes give contact details.If you know that the material has been used by someone else (for example, it has been reproduced in a book) it may be worth contacting that person or organisation for information about where they obtained permission.
Copyright owners that are companies
If the copyright owner is a company, you may be able to locate it by checking the Australian Securities and Investment Commission website: www.asic.gov.au