broadley rees hogan managing copyright in plans
TRANSCRIPT
Managing Copyright in Plans
Overview
Difficulties in dealing with plans
D1 – The problem of © ownership
D2 – Using another’s development approval
Crafting the solutions
The author is the first owner of © including works commissioned by a client
Common sense that the client must receive a right to use the work for the purposes intended
For architectural plans and drawings a conditional licence is implied to use the plans for construction
D1 - The problem of © ownership
D2
A2 + B
A2 or B engaged to use existing
DA
D1 - The problem of © ownership
Licence conditions: Remuneration required – fee or other
consideration Becomes irrevocable – on development
approval or commencement of building Restricted to site Non-exclusive Plans can be altered Runs with land - transfers to purchasers May not transfer to mortgagee
D2 - Using another’s development approval
What protection for subsequent architect or
builderDue diligence → innocent infringer defence →defendant unaware and no reasonable grounds for
being aware of infringementClient assurances enough?Enquiries of former architect
Solutions for D1
Licence is subject to the terms of your Contract of Engagement - certainty
Engagement Agreement should set out Nature of the Project Any relationships existing between parties
(for example, JV) Circumstances in which client obtains Licence
Solutions for D1
Your Contract of Engagement should deal with Exclusive / non-exclusive Arising on payment Sublicence Exhaustive When revoked or revocable
Other considerations
Do not assign © D and C Contracting – own licence?
Solutions for D2
Why do you care?DamagesInjunctionsProfessional standing / reputationWasted legal and opportunity costs
Solutions for D2
Engage your client Ask for evidence of right to use plans and
drawings Representations in writing Indemnities? Engage with person whose name appears on
plans and drawings – keep records
Keep drafts – show how ideas were developed from
instructions
Peter Bolam| ConsultantP: +61 7 3223 9139F: +61 7 3221 5518E: [email protected]
For further information, please contact:
Brent Turnbull| Special CounselP: +61 7 3223 9118F: +61 7 3221 5518E: [email protected]