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Having secured land and the requisite approval from the planning and building authorities, property owners' thoughts turn to the construction of their building. Having conceptualized their ideal structure, they engage the services of an architect to design their building according to their desired specifications.

In the planning and execution of any construction project, the preparation of a building plan is among the first steps to be taken, as all new buildings must first be approved by the Building Authority prior to the commencement of any construction activity, and a building plan would form a part of application process.

However, having engaged an architect and the design having been completed, who owns the copyright to the design? What are the legal implications should the owners desire to modify the plan? Can the design be reused in the future and by whom?

 

These questions and related issues may not be of foremost consideration in the mind of someone about to carry out a construction project and often arise only after an unfortunate misunderstanding or dispute. Nonetheless, they are issues worthy of consideration so that the required steps may be taken to head off any potential disputes or misunderstandings.  

The subject matter protected by copyright law is extensive. It does not only include works of an artistic or literary nature; copyright protection also extends to works in other areas such as drawings, including architectural plans, engineering designs and industrial drawings.

Design drawings being subject to copyright protection, the determining element as to ownership of the intellectual property in any such plan would turn on a number of factors, including authorship of the work and the circumstances under which such works are created.

In law, the individual who created the protected work is considered the author of the work. As a result of his creation, prima facie, the author maintains ownership of the copyright subject to any agreement to the contrary and certain qualifying criteria.

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It is not necessarily the case that the individual always owns the protected work, however, as certain exceptions apply to this rule. For example, the copyright of any work created in the course of employment, works made for hire, belongs to the employer as the first legal owner, barring any agreement to the contrary.

However, in cases where the work was not created under an employer/employee relationship, but under contract, the legal ownership of the copyright would be determined based on the terms of the contract.

In such a scenario, clients hiring design professionals should not only familiarize themselves with their legal rights but ensure that a comprehensive and well drafted contract or engagement letter is done at the initial stage, as any disputes surrounding the later use or modification to a design plan could turn on the terms of the contract or engagement letter.

At a minimum, the client should determine or have set out in explicit language in the agreement, the assignment of rights in the work, whether copyright ownership will be transferred to the client or retained by independent contractor (in this case the architect or engineer), how the design plan may be reused and to what extent a design may be subsequently modified.

Modification to a design plan is considered derivative work; the modified design taking its form from an existing version which is subject to copyright protection. If it is desired to modify any design the permission from the copyright holder must first be obtained. However, where a client holds the ultimate right of ownership in any work, he or she would be free to deal with the said work in whichever way they so choose and would not be restricted in issuing any instructions for the modification or variations of the design.

A copyright is a personal proprietary right protected by law, infringement of which could result in legal action for damages. Before engaging design professionals, it is advisable that clients become conversant with their rights so that they will be on sound footing in the event that copyright ownership and use of any design should become the subject of dispute.   

Disclaimer –The information contained in this article is for general information only. This information is not provided as advice for a specific matter and should not be construed as legal advice; neither does its publication create any attorney-client relationship. The application and impact of laws can vary widely based on the specific facts involved. You should consult with an attorney-at-law to obtain advice with respect to any particular issue or problem you might have. 

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