Many properties on the market these days are advertised with a Development Application (DA) listed alongside the main features of the property. Given the significant time and costs associated with engaging an architect and obtaining an approval for a DA, properties are often sold on the basis that the purchaser will have the benefit of the DA as set out in pre-existing plans.
Advertising DAs alongside the main features and inclusions of a property makes it easy for buyers to assume that the DA is theirs to use. However the question of whether they do have the right to obtain copies of the DA plans from their Council and use them to complete the development has raised some confusion.
The confusion stems from the copyright law under the Copyright Act 1968 (Cth) (Act) and moral rights under the Copyright Amendment (Moral Rights) Act 2000 (Cth).
When purchasing a property, the buyer cannot assume that the DA plans can be used to carry out the development. Use of these plans may infringe copyright and any use may potentially be stopped by injunction.
Copyright law operates to prevent people from copying or reproducing other peoples’ work in any material form, without first obtaining their consent. This means that only the creator of the work may copy or reproduce it.
This law protects the intellectual property of architects and other designers involved in the preparation of the plans.
The question of ownership and ability to access a DA is relevant for various parties including:
– landowners – property developers – building certifiers – architects & other designers – banks & other lenders – builders – joint venture partners –
What are the intellectual property rights of architects?
In Australia, intellectual property protection is derived from the Act and the various court determinations, which have interpreted and applied the Act*. Section 10 of the Act defines “artistic work” to mean:
(a) A painting, sculpture, drawing (which is defined to include diagrams, maps, charts or plans), engraving or photograph, where the work is of artistic quality or not;
(b) A building or model of a building, whether the building or model is of artistic quality or not; or
(c) A work of artistic craftsmanship to which neither of the last two preceding paragraphs apply.
Based on this definition, a wide range of architectural works and the actual building itself, are protected under the Act. Whilst it does not extend to ideas, information or concepts, or features of architectural works that are not distinct, such as doors, windows and roofs, it does protect a drawing or model, which incorporates distinct features of an idea or concept.
Copyright protection arises from the time the original architectural work is given “material form” by being created via a sketch or model, or being saved as a digital file. Interestingly, even if a client conveys an original idea to an architect, once the architect has given it “material form”, the copyright of the work in material form is owned by the architect; not the client who had the idea!
How can you obtain an assignment of copyright?
An architect gains the benefit of copyright protection and can prevent people from using or reproducing his or her works unless there is an agreement assigning away those rights. A retainer agreement may provide for an express licence in two forms:
- An exclusive licence. This enables the licensee to exercise the rights granted exclusively. It can only be granted in writing and requires a signature from the original copyright owner.
- A non-exclusive licence. This allows the licensee to use the work in a way that is negotiated between the copyright owner and the licensee (i.e. the copyright owner may continue to use the works and has the ability to grant others a non-exclusive licence to the works). It can be granted verbally or be implied.
What is an implied licence?
If the purposes for which the plans and drawings were prepared have been achieved by virtue of the approval of the DA, there may be an implied licence for the landowner to use those plans for the purpose for which they were created. That is, the rights to the approved plans and DA run with the land.
Whether an implied licence applies will depend on the particular facts and circumstances of each individual case. They do not generally extend beyond what is necessary to give effect to the agreement between the architect and the client e.g. it does not extend to a party using the plans that have been specifically commissioned for a particular site, for the construction of the building on another site.
Obtaining copies of DA plans
When a landowner undertakes development they must produce the DA plans and documents to certifiers so the certifier can issue the requisite approvals required in order to obtain an Occupation Certificate.
It is at this point that difficulties arise as the landowner has often not obtained copies of the plans or DA documents from the vendor at the time of sale, a problem which is compounded when the original architect is not contactable or is no longer practicing.
In these situations, some councils will not permit the reproduction of plans without the consent of the copyright holder, whom they generally assume is the architect. This stance stems from the fact that local councils cannot necessarily rely on an implied licence to the landowner in order for them to reproduce plans that are caught by the Act. There is nothing in an architect’s conduct in preparing plans to be submitted as part of the DA that can be taken as consenting to such reproduction or abandoning their rights pursuant to the Act. This is challenging for landowners and professionals such as private certifiers, who require copies of the plans to complete the development for which the plans were intended.
While councils will allow “view only” access to DA plans and some may even provide photocopying facilities for the public to make copies of plans for the purpose of research and study, there is a practical inconsistency between the council’s insistence on written ‘consent’ from copyright owners and the rights of landowners to access, copy and use the plans.
What can you do to ensure access and use of a DA?
Ensuring that you are protected and prepared when it comes to DAs is important. How you do this is determined by your role in the design, purchase or development process.
Architects and Designers
Should have clear copyright assignments and licensing provisions in all engagement contracts and terms of business.
Banks & Lenders
Should ensure appropriate due diligence has been carried out and all relevant security documents over a development property capture the relevant copyright conditions.
Developers (Property, Land or Joint Venture)
Developers need to plan and take appropriate due diligence steps when considering a property, These include obtaining copies of plans and DAs, and making sure all JV or other documents adequately deal with the relevant intellectual property rights.
Need to be aware of the copyright conditions of the plans they are following and be wary of anything that may indicate that the plans they are being asked to follow might be the subject of a copyright claim by a third party.
And last but not least.. landowners
If you are looking to buy a house that is being sold on the basis of DA approval, it is important to consider before exchange or purchase at auction, negotiating the terms of your sales contract to ensure:
- That you obtain all copies of the plans and documentation associated with the engagement of architect, the work undertaken and the DA; and
- That you amend the terms of sale contracts to provide a warranty by the vendor that they either have received an assignment of the copyright in the plans and designs, or have a licence to use the copyright protected plans and designs for the property, and that they assign all their rights to you as the purchaser of the land.
If you are facing confusion or difficulty in relation to the copyright in architectural plans, or are a lender or developer who would like some assistance, please contact us at 02 8215 1521 or via email at email@example.com
Antcliffe Scott Lawyers
*Case Study this article is based on includes (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd  HCA 55) (Concrete) & client (Acohs Pty Ltd v R A Bashford Consulting Pty Ltd (1997) 37 IPR 542.