Copyright

Two circumstances prompted this article. Some clients have come to me with project home plans they wanted altered. And a client put forward a contract that involved the Architect giving copyright to the client.

Before addressing the two issues, what the law says regarding copyright must be understood. Also that the following is not the opinion of a legal expert, merely an architect's understanding of their position.

What is the Copyright law?

Rights regarding copyright are set out in the Copyright Act 1968

One of the best simple explanations is found at Australian Copyright Council Link to it

According to Australian Copyright Council, “Copyright protects the form or way an idea or information is expressed, not the idea or information itself.”

This can be confirmed by referring to Copyright Act 1968, Section 22
“A reference in this Act to the time when, or the period during which, a literary, dramatic, musical or artistic work was made shall be read as a reference to the time when, or the period during which, as the case may be, the work was first reduced to writing or to some other material form.”

This means that the material “thing” is copyrighted, such as the drawing itself, the ideas can be used by anyone.

Also, according to the Australian Copyright Council Information Sheet G58 'Ownership of copyright' (Feb 2006),

1. Unless something is put in writing giving another person copyright, the person who actually writes or draws a drawing owns copyright automatically.

2. Also where a client commissions work, the creator/author owns the copyright, but the client may use the work for the purpose for which it was commissioned, in the case of building, to make the building on the specific site.

3. Also where an architect subcontracts a freelancer and an independent contractor the freelancer or independent contractor has copyright to their own work automatically, unless there is an agreement with that subcontractor giving copyright to the architect.

This means that a drawings by a sub-consultant is their own work, which is just, as they also carry liability for their own work.

Regarding built work architects now have access to moral rights legislation regarding alterations to an already built design.

This is in the COPYRIGHT AMENDMENT (Moral Rights) Act 2000 NO. 159, 2000 -Schedule 1

Matthew Rimmer in "Crystal Palaces, copyright law and Public Architecture, notes that this Act allowed for integrity and prevention of derogatory treatment of a work, also it architects to have the right of consultation and negotiation if the building they have designed is to be altered. An owner wishing to alter an architect's built work must go through a procedure.

According to Virginia Morrison, Australian Copyright Council, 4 July 2001, Col Madigan and the RAIA in using this legislation have obtained the right to be consulted regarding the alterations to Madigan's design of the National Gallery of Australia. The building owner may still alter a building if in good faith he consults with the original architect and allows them access to create a record of it as it was.

This is a precedent allowing other architects to also obtain this right.

Ethics and moral law
There is another law, it is called ethics, or the moral law. All architects are bound by ethics.

The moral law is something that is hard to define. It is a fundamental sense of doing right and good. Looking at 'copyright'. The word 'copy' means to imitate something or make something identical with another, from the Latin 'copia' for transcribing text. Oxford. Seeing someone's work and making yours identical and passing it off as your own has a sense of stealing. Stealing is wrong. Some students have been known to take forms and shoehorn in the program of their project and pass it off as their design. This is wrong. However, copying the way someone does a thing, such as using a computer or ATM, is learning. In such a way, seeing how a master architect designs a building and learning from it and practising in their style, is not stealing. Hence the law does not protect the ideas, only the artistic merit of the physical work. There is a grey area of copy-right that is defining the line between stealing and learning in architectural endeavour.

What is nice is that in reality it is easy. Only really dumb people would copy things others do without understanding and changing them though the filter of their consciousness. If we were dumb copyists we could be the proverbial lemmings. We can see what others do, comprehend it and then make drawings in our own individual way.

And in addition, only real failure of an architect would bother to copy a plan. Within just one hour of thinking and doodling they can have a better one.

I don't know why people bother copying plans. Project home plans are quite 'dumb' in that they do not recognise the specific nature of a site. What happens is that a potential buyer goes and looks for which one best fits their site, but they are never as good as homes designed with the site in mind. The site has so many variable constraints such as orientation, aspect, width, configuration, slope, overlooking and micro-climate that a 'standard' design can never perfectly match or answer all the constraints. Also in addition every household is unique in its needs. But a reasonably competent architect can integrate all these and can come up with a design specifically for client and a site. And you would be really dumb to take such a specific design and use it somewhere else. Chances are a window will look into another's bathroom or it will feel 'crammed' or it will overheat or there will be some serious failing.

Then we come to how it looks. No reasonably competent architect needs to copy another's design exactly. In them is the creative mind to see how it could done better.

Take two instances of products. The stainless steel balustrade and the planar patch fixing. The very first stainless steel handrail I saw was made of bits used for other purposes. I don't know who first thought of it, which is a pity. Since then, there have been advances and there are a lot of bits that can be used which are all purpose designed. I design every stainless steel balustrade from scratch based on available bits, and I have it engineered. There are problems with the stainless steel railing, they sag over time, and require tightening and maintenance. They should never be used where there is drop of over a floor as they are climable and pushable. In addition they don't give any privacy. The second is the planar glass fixing. With great effort someone must have first done this. I don't know who. My sister who worked at Ove Arup facade said the first one was interesting, as they in effect designed it from scratch then they improved it each time until after a while it became a bit repetitive. Now there is an “off the shelf” product. However, somewhere out there someone using their creative mind to make a better planar fixing. As an aside there are a few problems with frameless glazing. Glass is not a solid, and toughened glass can suddenly shatter from a minor impurity. Secondly, silicone joints need to be replaced as silicone has a limited life. Thirdly, excessive glass area can lead to excessive heat or cold loads.

And two instances of designs. Nobody in their right mind would copy the Savoy Villa by Le Corbusier. The client didn't like it and it leaked. Nobody would copy Mies Van der Roe's Farnsworth House. It has privacy problems and was so cold as to be uninhabitable in winter. Yet both works have had significant stylistic influence. One could say other architects have learnt from these works. To work in a school, or style, and to understand and apply principles of how buildings can go together to a specific design problem is the essence of architecture. To copy without thought is to be like a proverbial lemming, to repeat mistakes. The avant guard designer learns from what they do and moves on. Those who copy are doomed to repeat any mistake. If the design is new, chances it may leak or have a fault, it would be foolish to copy it.

This brings us to the second issues, that of the client that wanted copyright. This client was quite business savy. There is just one thing. They have only the right to use the drawings themselves. The ideas anyone can use. The site was unique being the inside of a building with a lot of constraints, so there is no point whatsoever in using the design on another site. An in any case even McDonald's and Woolworths learn from each job. Their standard plan is constantly re-examined in the light of experience and the site for each job, so that no two have ever been the same. In addition, nobody would build a McDonald's designed in 1990, as the design for 2000 reflects a change in fundamental attitude and a more modern style. In other words a copyrighted plan is worth nothing, practically (unless it was an artwork in itself). And this client forgot to check if the architect they made the agreement with was actually the author of all the work, as it so happened that an independent architectural contractor supplied the hand drawn drawings which formed a substantial part of the work, not the employees of the architect concerned.

Even if a client negotiates copyright they do not gain anything practically, as in summary, a design is superseded by
1.The very act of building it, which gave those involved in the process information that would lead to an improvement of the plan.
2.the popular style moves on as new materials come available, and more inventive methods are used.

Therefore no creative architect need fear copyists. They are already doing something better.

The issue is always for architects what others do to the building they designed. By adding things or changing things people can destroy the creative integrity of a design. In fact if an architect is not given the chance to take a design all the way through construction, a builder can easily destroy the integrity of the creative ideas, by mis-reading drawings, substituting, or by leaving something out. The most notable case in point is the Sydney Opera House. But the saddest thing is a building modified out of recognition later in its life. One of my favourite high rise building's was so treated. John Andrew's delicate suncreens to the 1983 Sulman award winning American Express Tower, Sydney.