Architecture & copyright – FAQs
These FAQs are intended for property owners who are considering engaging, or who have already engaged, an architect to prepare a design for their project.
The following is a condensed summary of the full FAQ document. (Download full version of Copyright FAQs.)
The Copyright Act
The Copyright Act is a piece of national legislation that protects and controls the copyright and rights of creators. Any design an architect imagines and creates is an ‘artistic work’ that will be protected by copyright under the Act. The architect also has a legal right (known as ‘moral rights’) to be acknowledged as the original creator of their design in the work.
In Australia there is no legal requirement for an architect to assert copyright or to include a copyright notice on their designs, drawings, plans or renderings. Australian law protects a designer’s work by automatically applying copyright to it the moment it is created.
Bear in mind that an architect’s designs not only have hard work and skill put into them, but that the design, plans, drawings and renderings themselves are also commercially valuable to anyone intending to use them to develop a project.
When I engage an architect to prepare a design for me, do I own the copyright?
The default position under the national Copyright Act says that typically whoever conceives of and creates the design, that person owns the copyright in the design. In nearly all cases, the architect will have combined your ideas with others and taken them to the stage where they amount to an 'artistic work' that is protect under the Copyright Act. For you to own copyright, the architect must agree in writing to transfer the copyright to you.
Can I copy a design I have seen elsewhere and ask an architect or draughtsperson to re-draw it?
No. This would in almost all cases be a breach of the copyright of the original architect. But why merely copy a design when you could ask an architect to apply their design skill to the particular qualities, context, problems and advantages of your site and your project needs?
Can I rebuild or repair a building without breaching the architect's copyright?
Yes. Section 73 of the Copyright Act permits the reconstruction of the building if the original construction was not in breach of copyright.
Can I extend a building in a way that repeats the original architect's design, or substantial parts of it, without breaching copyright?
It depends. You should look at the terms of the express or implied agreement about copyright between you and the original architect. If this is what was contemplated when the architect was first engaged, and it was clearly understood that the architect would be engaged for an initial stage but not necessarily be engaged for expansion or of later stages, there is probably an implied licence to use the architect's copyright to the extent that it is necessary to ensure consistency. In most other cases there would not be such a licence or permission.
If you are intending to extend or alter a building you should also be aware that the original architect may well have moral rights which, under the Copyright Act, also need to be respected. In particular, altering a building is likely to infringe the moral rights of the original architect unless that architect has:
- been given notice of the proposed changes
- been given the opportunity to make a record of the work before it is altered
- been consulted in good faith about the proposed works, or
- given a written consent to the original owner which allows you to alter or extend the building without consult with the original architect
How long does an architect’s copyright in their design exist for?
Copyright continues to protect an architect’s work for 70 years from the end (i.e. after 31 December) of the year in which the architect died, or 70 years from the end of the year in which the work was first ‘published’ to the public.
If I approach an architect to take over from the original architect, what copyright or moral rights issues are relevant to protect the architect’s rights?
If the previous architect or designer owns copyright, you must apply to the architect to use the plans and design in order to pass a licence to the new architect or designer. You must also make appropriate arrangements for moral rights attribution of the previous architect in relation to the drawings and the project, unless the original architect has consented in writing to moral rights infringement.
If there is any doubt about whether you (the client) or the original architect owns the copyright, or if the previous architect refuses to grant copyright permission or transfer copyright, you should obtain legal advice.