Given the competitive nature of the construction industry, disputes often arise where a homeowner engages a builder to construct a house bearing similarities to the design of another.
A proper understanding of copyright law is essential for builders to protect their intellectual property and defend themselves from any claims made against them in a cost-effective manner.
Understanding Copyright Protection for Building Plans
Under the Copyright Act 1968 (Cth) (Act), copyright exists in the expression of ideas – not ideas themselves. For builders, this means copyright exists in drawings, plans, 3D models and the houses ultimately constructed in accordance with them.
Key aspects of copyright protection under the Copyright Act 1968 (Cth) include:
- Automatic protection: No registration is required.
- Exclusive rights: The copyright owner has the exclusive right to reproduce, adapt, or publish the work.
- Duration: Copyright generally lasts for 70 years after the calendar year in which the owner of the work died.
When does copyright infringement occur?
Under Section 36 of the Act, copyright infringement occurs when a person who is not the owner of the copyright does anything (or authorises the doing of anything) which infringes upon the owner’s exclusive rights without their permission.
In respect of building plans, this most commonly occurs where plans are produced and/or a house is constructed which infringes upon another builder’s exclusive right to reproduce their original building plans.
Under the Act, a person will infringe the copyright in building plans if the person (not being the owner, and without the licence of the owner) reproduces, or authorises another person to reproduce, either the whole or a substantial part of the plans.
What amounts to the reproduction of a “substantial part” of building plans is a matter of fact and degree and will be different in each case.
In assessing copyright infringement where it is alleged that building plans have been reproduced without permission, there are two requirements:
- A sufficient degree of objective similarity between the two works – when comparing the original building plans to the infringing plans/house, are they sufficiently similar?
- Some causal connection between the two works – is there something to link the infringing plans/house to the original plans (for example, did the author of the infringing plans/house have a copy of the original building plans when preparing their plans/constructing their house?)
Common scenarios of copyright infringement in building plans include:
- Direct copying: where one builder has had access to, and directly copied, another builder’s plans (or engaged someone to do that on their behalf).
- Derivative works: where one builder has made minor modifications to another builder’s plans, which nevertheless reproduce a “substantial part” of the plans (or engaged someone to do that on their behalf).
- Recreating from memory: where a former employee of a builder has used their knowledge from their employment with the builder to replicate plans.
Defences to claims for copyright infringement in building plans
Some of the common defences to claims for copyright infringement in respect of building plans are as follows:
- Independent creation: if the plans/house were created without access (and with no causal connection) to the original plans, that may not amount to infringement.
- Insubstantial copying: If only a trivial or non-distinctive part (i.e. not a substantial part) of the original work was copied, that may not amount to infringement.
- Implied or express licence: If the author of the original plans gave – whether expressly or by implication – their permission to use those original plans, that may not amount to infringement.
- Insufficient originality: Copyright protection is only afforded to original artistic works. If the original building plans are not sufficiently original, it may be that copyright does not exist in them (such that the copying of those plans will not amount to infringement).
Remedies and Legal Consequences
If infringement is established, the copyright owner may seek remedies under the Act including:
- An injunction: an order preventing further use or distribution of the infringing plans and/or preventing the construction of houses in accordance with them.
- Damages or an account of profits: an order for an amount of money to be paid to compensate the author or the original plans for financial loss caused by the infringement, or an order that the infringing party pay to the author of the original plans the profits they have derived from the infringement.
- Delivery up and destruction: An order for the infringing material to be surrendered and/or destroyed.
