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Copyright and Moral Rights
Novice clients sometimes think that they own an architect’s drawings by virtue of the fact that they paid the architect for them. Architects on the other hand will tell clients that they own the design.
Both positions are based on an over-simplification of the law. Refer to the “Copyright in the Digital Age” article for a summary of how the Copyright Act applies. Under the Copyright Act, an architect’s instruments of service are considered artistic works like paintings, photographs and other works of artistic craftsmanship.
It may help to bring clarity if we consider three examples.
First example: if a photographer is hired to shoot a portrait, the purchaser will be provided with a series of proofs from which to select the pose they want to be used for the portrait. They will then receive as many copies of the portrait as they ordered and paid for.
Second example: if an artist is hired to produce a screen-printed T-shirt, the purchaser will receive as many T-shirts as ordered and paid for.
Third example: If the desire is to read a book, a copy of the book would be purchased.
In all cases, if the purchaser later wants additional copies for themselves or to share, they would go back to the creator and order the additional copies. In all cases, the purchaser is not allowed to make additional copies themselves, nor are they allowed to modify the portrait, the silk-screened design or the book. To do so would be a violation of copyright or of the moral rights of the creator.
What are moral rights? Moral rights are defined in the Copyright Act of Canada and include an author's right to attribution, integrity and association of a work. Moral rights are separate from economic rights; moral rights essentially being derived from the reflection of the author’s personality in his or her work. Moral rights provide the author with some control over their work irrespective of who owns the work at the time and helps to preserve their integrity, reputation and right to be associated (or not) with their original creations.
In an architectural context, moral rights protect the integrity of a work, prohibiting someone from building an addition to, changing the colour, shape or materials of, or demolishing a portion of a building without the architect’s permission.
An author of a work retains moral rights for the length of the copyright, even if the copyright has been assigned or licensed to another party. Moral rights cannot be assigned or licensed, but can be waived by contract. Some owners will ask the architect to waive their moral rights so the owner is free to renovate or build an addition at some point in the future.
Snow v Eaton Centre Ltd is a leading Canadian case regarding moral rights.
In none of the examples cited above, does the purchaser get access to the photographic negative, the original silk screen or an editable file of the text of the book.
Similarly, when a client hires an architect to provide a design or working drawings, they are purchasing a printed copy of the reports, drawings, and specifications (instruments of service). They are not purchasing the CAD or BIM files or the word processing files used to produce the printed output.
In recognition of the convenience of the PDF file format, most architects are willing to provide a copy of the instruments of service as a PDF file, and will not object to the client making as many printed copies of the instruments of service as are necessary for the project.
In all the examples, and between the client and architect, the parties are free to negotiate a license to use or modify the artistic works for purposes other than those originally intended, or to assign the copyright or moral rights to the purchaser/client. Access to the original negative/silk-screen/editable files may also be negotiated. With a properly worded license, it should never be necessary for the purchaser/client to take ownership of the design or editable files. Architects should not relinquish ownership of their work.
Some architects have a policy to never transfer CAD files. Others will do so under the right conditions. Clients need to be aware that there should never be an expectation that the architect’s work or the instruments of service are perfect and that the drawings may therefore contain errors or omissions. While the errors or omissions may not come to light or have an impact on the construction of the project, they may affect other uses of the drawings.
An architect is exposed to increased liability if they make the editable files available to a client. This arises because the architect no longer has any control over how or for what purpose the instruments of service are being used. Also, the instruments of service may not be suitable for the client’s intended or future use, and the architect usually has no opportunity to advise the client or to mitigate any issues which may arise. As a result, it is prudent for an architect to include in the licensing agreement an indemnification/hold harmless clause to protect them from claims and liability arising from whatever use the client or others make of the instruments of service.
The Canadian Handbook of Practice contains a template for an electronic data transfer agreement. The RAIC has issued Practice Builder 19 – “The Exchange & Transfer of Electronic Documents”. The OAA has included some useful supplementary conditions regarding transfer of editable files in the “Instructions and Commentary to OAA 600-2013”. Refer to GC 7. These are valuable resources.
The Sale of Drawings with the Property
Where a design for a project has been constructed, it is normal for a client to retain copies of the instruments of service (record documents) for use in the operation and maintenance of the building. It is also anticipated that the record documents will be passed along to any future purchasers of the building.
Where a design for a project has not been constructed, unless agreed otherwise, the client does not have the right to sell the design (as shown by the instruments of service) to a purchaser of a property. In part this is because the original intent was to provide the instruments of service to a specific client for a specific property, meeting a specific program of requirements. Also, unless the client/architect agreement provided otherwise, the architect owns the drawings, so they do not belong to the client to sell.
Should a seller desire to ‘sell’ the design for the project with the property, they should approach the architect and other consultants about assigning the consultant contracts to the new owner. Should a purchaser desire to continue with a design developed for the seller of a property, the purchaser should approach the architect and other consultants involved, and negotiate contracts with them. In either case, it should be anticipated that additional fees will be involved to cover the transition between clients and to revise the design to better suit the new client’s requirements.
For further information, refer to the Copyright Act and to the Canadian Handbook of Practice for Architects chapter 1.1.1.