Bloaag Detail - Copyright has no place in Architecture

2020/Sep/30

Copyright has no place in Architecture

Author: Roddy Handa

My name is Andy Thomson; I’m an architect with Thomson Architecture, Inc. and the OAA’s VP Strategic. I wanted to share this article, written by Alberta architect & lawyer Roddy Handa (with permission) with OAA members in order to initiate an important conversation around copyright in architecture. The views expressed in the article are those of the author's alone.

Author: Roddy Handa is an architect and lawyer who specializes in digital project delivery. He is the key founder of holo-blok - a collection of architectural problem solvers specializing in building solutions.

Part I - Introduction

When was the last time an architect sat in his tower drafting his vision in isolation? Probably back in 1985, and things were different back then - but I can’t say for sure since I wasn’t born yet. Fast forward (past the invention of fax and dial-up internet) and thankfully design is finally growing up. We're now progressing into a world of evolving work product, shared expertise, and collaborative solutions to built assets. Somehow, the Copyright Act, RSC 1985, c. C-42 (the "Copyright Act"), has failed to keep up with this progression.

Let's unpack the Copyright Act. It says at section 3(1):

Elsewhere, it also defines what Architectural work means (section 2):

any building or structure or any model of a building or structure; (oeuvre architecturale)

Architectural Work is included as a subset of Artistic Work (section 2):

artistic work includes paintings, drawings, maps, charts, plans, photographs, engravings, sculptures, works of artistic craftsmanship, architectural works, and compilations of artistic works; (oeuvre artistique)

The point of this article is to demonstrate how ludicrous Copyright is in today's delivery of a built asset.

It is important to note that the term “model” is undefined. Therefore, a model could conceivably include a Building Information Model, but that's not the point of this article. The point of this article is to demonstrate how ludicrous Copyright is in today's delivery of a built asset. Let's step back for a moment and review what rights a copyright gives to an individual. It is the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever. I'd like to stop there for just one moment because for as long as I've practiced architecture (which is admittedly only 10 years), my entire professional career has been based on the reproduction (substantial or not) of the material form of others.

Let's put forward a hypothetical. An architect (and all consultants for that matter) is engaged for the modernization of an existing structure. In order to perform that work, the architect must do several things:

They must obtain the as-built conditions of the project prior to their involvement;
They must engage engineers and other professionals to inform their work;
They must develop the design, typically premised on a basis of design, that is informed by various products for the resolution of design issues:
They usually must produce record drawings based on as-built contractor markups; and
They must turn over operational and maintenance data for the purposes of operating an asset.

Every one of these items is a copyright infringement. In Architecture, the important expertise that should be copyright is the right to the artistic expression in a design. Insisting on a copyright beyond that artistic expression is excessive and detracts from the industry as a whole.

While many consulting arrangements contain an explicit or implied license to use one another's work product, let's take a strict approach to interpreting the Copyright Act in architecture to demonstrate the absurdity that arises when we apply copyright to architectural design.

Part II - As-Built Conditions

As an architect, what does copyright infringement have to do with documenting a building that has been constructed so that you can make improvements for the owner?

As an architect, what does copyright infringement have to do with documenting a building that has been constructed so that you can make improvements for the owner? Well, when an architect is engaged to make alterations or improvements to a building, they must first create a base drawing of what is currently there. This might be based on existing drawings (usually prepared by another architect) or might be a physical measurement of on-site conditions.

Let's return to where we left off - section 3(1) of the Copyright Act.

copyright, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right

Reading this provision in context, the bold section refers to published works. According to the Copyright Act, a piece of architecture is published when it is constructed (section 2.2(1)).

Full stop. Once a building is constructed, a copyright arises.

Full stop. Once a building is constructed, a copyright arises. That means one cannot produce or reproduce the work - whether it is by tracing existing drawings or site measuring the existing conditions. So in the context of as-built conditions, measuring and reproducing a built asset is the definition of copyright infringement. Speaking as an architect, we are all guilty of this. While there are exceptions to this reproduction, I do not believe any are applicable here. The fact of the matter is, if you redraw an existing building - whether as an architect, engineer, owner, contractor, or trade - you've committed a copyright infringement.

Isn't that absurd? Most of these buildings outlive the people who've designed them. Yet there remains an overarching right that prohibits future consultants from building on this work. Don't worry, there is a limitation on this right. It reads at Section 6 of the Copyright Act:

The term for which copyright shall subsist shall, except as otherwise expressly provided by this Act, be the life of the author, the remainder of the calendar year in which the author dies, and a period of fifty years following the end of that calendar year.

That's great! After 50 years after an architect dies, you can now redraw their building for a purpose entirely unrelated to the initial purpose the building was designed in the first place. I am currently 33 (even though I may look 43). Let's say I make it to 83. That means no one can reproduce any project I've created for potentially 100 years.

Maybe 100 years isn't too long to wait for some. However, I am also employed by a corporation and under the Copyright Act, Section 13(3):

Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright, ...

It's much harder for a corporation to die. This moratorium could conceivably last much longer than the 100 years first suggested. This is a disservice to clients, to the general public, and to the profession of architecture.

Why do we, as professionals, insist on this concept of copyright that we're all guilty of infringing.

Why do we, as professionals, insist on this concept of copyright that we're all guilty of infringing. I would submit this is not the purpose of the Copyright Act. Alternatively, if it was, it shouldn't be any more. Our profession requires this infringement as it serves a greater purpose for our clients - the expected redevelopment of built assets for a variety of reasons.

While I appreciate that there is a need for copyright to prevent the reproduction of an original work in an unanticipated fashion, this is currently not how the Copyright Act is written. Therefore, as a profession, we must circumvent the application of these provisions to avoid the absurdity that results.

At a minimum, I would encourage all architects to assign this copyright to the owner of an asset for a specified purpose. That purpose has started to surface in many industry standard contracts, such as in the IBC 100-2014 BIM Contract Appendix, the right to reproduce and use content for the sole purposes of maintaining, repairing, altering and adding to the Project for the life of the Project.

Part III - Collaborating with Others

Let's review section 3(1)

every architect or engineer that uses an underlay is committing a copyright infringement

Even before the days of BIM, consultants have been sharing CAD drawings and even underlays of hand drawings for the purposes of coordination. This is a copyright infringement. Absent any agreement to the contrary, every architect or engineer that uses an underlay is committing a copyright infringement each time they reproduce the work or any substantial part thereof in any material form whatever. That's intentionally a very broad piece language.

Design and construction is generally no longer a task performed in a silo. Or perhaps a more accurate statement is that it should no longer be a task performed in a silo. With more progressive procurement models emerging, including Design Build, Construction Management, and Integrated Project Delivery, the sharing (and reproduction) of work is essential. This industry should not be a barrier to that.

The response by professionals that I hear most often is that they want to be paid for sharing this work product. They don’t think it’s fair for someone else to gain an advantage and be more profitable on the back of their work. I couldn’t disagree more. It requires no additional effort for me to share my work product. Architects and their consultants already do this - but now there are new players at the table who also need this data to do their jobs better.

Here’s how I look at it. If I’m willing to share my product, that will likely be reciprocated in some way down the road. By providing these documents to project partners we are simply making the process more efficient. In the end, everyone is more profitable because we are able to collaborate. This is the sort of open source culture that has allowed other industries, like software development, to grow rapidly. In addition, the client will be thrilled with my involvement because the project went smoothly. Bar none, this is the best business development you can do.

Moreover, professionals contend that sharing this electronic data exposes consultants to additional liability. This is because they believe that the electronic data will be used to identify errors and omissions or lead to deviations from the official contract documents. Again, I couldn't disagree more.

This workflow in fact reduces liability substantially. Using electronic data in native file formats enhances coordination. This is one of the most prevalent areas of professional liability claims, change orders, and unhappy project teams. Let’s be honest - if there’s an error or omission in the work, it will eventually come to light. Why not try to find it as early as possible so that it can be fixed. Moreover, at the end of the day, the contract will make it clear what the binding contract documents are. If anyone deviates from the contract documents, they are doing so at their own risk - and most licensing agreements make that clear. What I find most ironic is that contract documents are produced so that they are legible as 2D documents. Deviation from what’s on a drawing is necessary to actually build a project. So I belong to the camp that anything I can do to help with that deviation will help me avoid a pile of RFI’s.

As discussed in the previous article, consultants would not be able to reproduce this work in any event unless a license has been granted to them to do so. In effect, the whole consulting industry would collapse. No consultants would be able to work together because none would have the right to reproduce another's work. It would be absolute anarchy to construct anything in this environment.

Compensation is not justified. This is simply a way for all consultants to do their work better. You're not doing anything additional (unless a contract requires) and you're simply serving the greater good by sharing your native electronic formats. Moreover, if something is missed because documents were not shared, you might actually be more liable for something you ought to have known.

Don't believe me? Let's return to the issue of increased liability. As of the date of writing this article, I'm only aware of one published decision dealing with the sharing of electronic data in this new BIM world. That's not to say other claims have not been made, but that the only authority we have before us are the published ones.

That authority was in the UK decision of Trant Engineering Limited v Mott MacDonald Ltd [2017] EWHC 2061. In that decision, the Court granted an injunction allowing the aggrieved party to access the digital documentation that was available for the project. The fault was with the party withholding that information. I would suggest that this case suggests that if you have access to relevant digital information that another party can rely on for the purposes of fulfilling a contractual obligation, the Courts may suggest that you're obligated to share that information.

There is certainly nuance to this case, but I would submit that industry in Canada (and worldwide) should avoid this eventuality. Share all project documentation in its native format so that work can be done better. This is not limited to consultants, but also contractors, trades, and owners that seek to rely on this digital documentation beyond the delivery of the initial services.

The result will be a more satisfied client, a better project delivery, and a more successful project. Many consultants try to shirk responsibility by saying they’re only responsible for design intent. One could write a whole article on what design intent means, but for our purposes, let’s distill it down to this: putting forward a plausible solution on how you intend for something to come together.

Sharing electronic data and encouraging the input of everyone will help bridge the gap between design intent and practical construction.

While it can be argued that this is in fact where the consultant’s responsibility ends, design intent does not mean that the design can lead to an impossible solution. Architects are still the coordinating consultant. This means being aware of the realities of construction and not chalking up issues to construction means and methods. Sharing electronic data and encouraging the input of everyone will help bridge the gap between design intent and practical construction. Most importantly, it will avoid those impossible design solutions.

Part IV - Basis of Design

Basis of design is quite simply the process of using an existing product or system to inform your design. There are several problems with a basis of design approach but that conversation is for another day. The important part of this introduction is understanding what basis of design is.

I find a lot of irony in a profession that is so insistent on copyrights but relies so heavily on a “basis of design” approach. During all stages of design, consultants of all disciplines rely on real-world manufactured content to inform a design. A mechanical engineer draws a fan coil unit from Trane so that they can claim some ceiling space. An architect draws a curtain wall mullion and detail from Kawneer so that they can resolve the building envelope.

In many procurement models, it would be impossible to not proceed in this fashion. To not rely on available construction products would be akin to saying hot sauce cures COVID-19. It's irresponsible and unprofessional to not work with the best data you have available to you.

Our profession relies on these products. So to reiterate a section of the Copyright Act, we must produce or reproduce the work or any substantial part thereof in any material form whatever, of those manufacturers who create building products. To go one step further, to practice the profession of architecture (or engineering) and to insist on a copyright in what we’ve drawn, we must expropriate the intellectual property of other copyright holders - here, manufacturers.

Can that really be true? The answer is yes - but usually these manufacturers grant an explicit or implied license by these to reproduce their content in the hopes that their product will be selected. There is an incentive for them to have us base our designs on their products. Regardless if that license is implied or explicit, the fact remains that consultants often insist on a copyright that is at least in part the rightful property of another party.

This is most evident in the BIM world when creating Revit families or project content. Whether or not a license exists to reproduce manufacturer content, it is absurd for a consultant to claim a copyright in that reproduction. However, I see those types of claims constantly by practitioners.

Your secret sauce is not secret.

This reproduction is not the same as the process required to develop the family or content. That is arguably better characterized as a trade secret or patentable process, given the requirement of publication required under the Copyright Act. Assuming for a moment that one can allege that their workflow in building content is copyrightable - I have a revelation that all BIM professionals can likely agree on. Your secret sauce is not secret.

Professionals move between companies and converse within communities. Strategies are shared and approaches are critiqued. This should be an industry of refinement and not of secrecy - unless we want to remain the joke of the modernized world. Design and construction is lagging behind all other industries in terms of progression. I think many people are familiar with the McKinsey article on this

(https://www.mckinsey.com/industries/capital-projects-and-infrastructure/our-insights/improving-construction-productivity).

Construction labour-productivity has grown 1% per year for the last two decades. This is far behind the total world economy (2.8% per year) and manufacturing (3.6% per year). Maybe a little sharing of information (which will occur regardless) is welcome and will help construction to narrow this gap.

Regardless, if you insist that your content is subject to some sort of copyright, I would ask you to reconsider whether it was based on a ready-available product on the market. After all, if any part of your content is reproduced in any material form, you're guilty of infringing the same rights you're trying to insist upon with your project partners. Most importantly, at the end of the day, this does not serve your clients well - and that’s bad for business.

Part V - Record Drawings and As-Built Drawings

Record drawings and as-built drawings. It seems like everyone is confused by their distinction and everyone argues over who is responsible for them. What should be clear by now in these series of articles is that this is another messy area for copyright. Let's begin by clarifying their distinction. The American Institute of Architects defines as-built drawings as:

As-built drawings are prepared by the contractor. They show, in red ink, on-site changes to the original construction documents

Meanwhile, record drawings are defined as:

Record drawings are prepared by the architect and reflect on-site changes the contractor noted in the as-built drawings. They are often compiled as a set of on-site changes made for the owner per the owner-architect contract.

These terms should be eliminated. But that is a topic for another day. Speaking to the point of copyright, and again in a strict application of the definition, these actions are inherently copyright infringements in every sense of the word.

in the same way that I cannot go print Green Eggs and Ham at Staples without infringing that copyright, the same is true for a contractor printing drawings.

Let's begin with as-built drawings. They are prepared by the contractor. They show, in red, in the on-site changes to the original construction documents. Those construction documents are likely a reproduction of the construction documents produced by the consultants (which discussed in our previous article are a copyright infringement in their own right). How can that be true? Well the contractor likely had the documents printed. So in the same way that I cannot go print Green Eggs and Ham at Staples without infringing that copyright, the same is true for a contractor printing drawings.

As part of the contractors contractual obligations, they are asked to infringe on the designer's copyrights. This is subject of course to any license for this purpose, but for the sake of simplicity, let's assume that license does not exist or was not contemplated.

This means that each time a contractor redlines a drawing (or in other words, reproduces the work of a consultant in part, they are guilty of copyright infringement. To phrase this another way, a contractor engaged on a project with a team of consultants cannot perform their duties without violating a Federal Law, absent an agreement to the contrary. To align with the common theme in these articles, this is entirely absurd.

The architect (and consultants) must then translate these redlines into a record drawing (or model for us progressive practitioners), for the owner's use absolutely. I'm not aware of any legal decisions on this point, but I would submit that the reproduction of these redlines into a record drawing also can be classified as the reproduction of someone else's work (the contractor's redlines) into the consultant's work (the record drawings or model).

If it isn't clear by now, let me state it simply. Copyright has no place in architecture.

If it isn't clear by now, let me state it simply. Copyright has no place in architecture. With a small caveat on the artistic expression. So much of this profession relies on a back and forth between parties who all contribute to the same end work product - a physical building. Moreover, in order for this profession to progress, we must share individual work product for the greater good of all parties. This includes better coordination (as the prime consultant), informed engineering (as the design consultants), better constructability (as the contractor and trades), and better ownership (as the owner). Copyright in this profession only seeks to frustrate these purposes.

Part VI - O+M Data and Conclusion

As we near the end of the construction process, we near the end of this series of articles. We’re now talking about building handover, including all the information the client needs to own the building. This information is often characterized as operational and maintenance (or O+M) data. O+M data are often provided for a wide array of project systems.

This O+M data comes from various sources. They may be published data on manufacturers' websites, shop drawings for a particular installation, or specific data that relates to a bespoke product. In the end, one thing is clear, O+M data is largely a reproduction of various submittals produced by trades, manufacturers, suppliers, and commissioning agents.

Often, these documents are reproduced in the most archaic fashion - a copying machine. If I again go copy my favourite book, Green Eggs and Ham (re: Article 5), on a copying machine, that is precisely the sort of conduct the Copyright Act intends to protect.

I would argue, it should not protect the reproduction of this O+M data that an owner requires to operate their asset. Nonetheless, the Copyright Act doesn't appear to make this distinction - although I would appreciate any insight from colleagues to the contrary.

Each time a consultant compiles O+M documentation, we are committing copyright infringement to the letter of the Act. Certainly there are exceptions - whether by way of (yes you guessed it) license or by way of some sort of implied right (which I haven't come across yet in my reading of the case law).

Some might be inclined to accept the current state of affairs and be subject to their own infractions to these legislated limits. While they're currently undecided by the courts to my knowledge, that does not mean they won’t be decided in the future. What can be alleged is that the reproduction of O+M documents is prohibited under the Copyright Act.

Architects and consultants alike - license your work to your clients. You'll have more enduring relationships as a result.

Or we can take an alternative approach. I'm not suggesting careful navigation of these waters. I'm advocating for clearing the seas and removing the barriers. Architects and consultants alike - license your work to your clients. You'll have more enduring relationships as a result. While an argument can be made that these documents are probably already licensed to owners for a particular purpose, I suggest going one step further. License your work to everyone involved in the project and who might be involved with the project in the future. Give other parties the ability to benefit from your product. Serve your clients better. Be a recognized asset to the industry.

Conclusion

In this article, I've articulated why copyright doesn't belong in architecture. We’re all guilty of infringing it, we all seem to still insist on it, and we’re all falling further behind because of it. This doesn't mean I'll rip off the next Zaha Hadid design as a Holo-Blok original. Originality is architecture at its finest.

Instead, let's:

adopt a culture of sharing, enhanced efficiency, and more productivity as a profession;
share native, electronic documents transparently and with a view to serving our clients better;
learn from the accomplishments and failures of our colleagues; and
push our professional associations and legislators to modernize this archaic body of law as it applies to architecture.

Most importantly, let's revert back to a humble, yet valued, profession where the focus is on generating value for our clients, stakeholders, and the underlying objectives of our governing legislation.

This article is provided for general information purposes only and does not constitute legal or other professional advice of any kind. Readers are advised to seek specific legal advice by contacting their own legal counsel. Roddy Handa and holo-blok Architecture does not warrant or guarantee the quality, accuracy or completeness of any information in this article. The content should not be relied upon as accurate or fit for any particular purpose.

Readers may also be interested in this article on Copyright provided by Pro-Demnity Insurance. https://prodemnity.com/wp-content/uploads/The-Straight-Line_Issue-7.pdf

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