Copyright in the Building Industry
Given the rise in copyright infringement claims and growing fears builders are experiencing when investing in designs and plans, confusion has simultaneously arisen as to what copyright actually is. Copyright claims arise under the ambit of the Copyright Act 1968 (Cth) (‘the Act’). This Act serves to protect various works that attract copyright under its provisions, and penalises any infringements that may transpire. It is important to understand the nature of the protection that is offered under the Act so you may remain aware of your rights and obligations pursuant to the law.
What is protected under the Act?
Under parts III and IV of the Act, copyright is provided when artists or authors produce work that is original. While this may seem quite straight forward, the word ‘original’ has caused many problems in copyright infringement cases in the past. It is up to the discretion of a judge to determine whether or not, under the provisions of the Act, material may constitute ‘original’ work. Given the highly subjective nature of copyright cases, builders are advised to ensure their designs and/or plans are in fact unique in nature to reduce the potential for litigious disputes to arise.
Who owns the Copyright?
In the case of building plans and designs, it is the employer who claims ownership upon such material. In the case of copyright disputes, the employer must then proceed to prove that the material is a result of the labours of an employee, not merely a contractor, and that the work that has become the subject of the dispute is in fact part of the employee’s employment.
In the case of an individual contractor, such as an architect, the work will usually be owned by the contractor him or herself, as they are considered the authors of the work. Builders are advised to exercise caution in the case of individual contractors given that the work produced by the contractor is likely to be capable of use by the contractor unless there is a written contract that expressly assigns copyright in all work to the builder.
Common Myths about Copyright Infringement
There are various myths in the building industry about the nature of copyright infringement. For example, there is a common misconception that any work capable of instigating copyright disputes will usually come with the conventional sign – © — however this is not the case. There is no requirement under the Act that work must come with this copyright sign, and copyright automatically arises when original work is created.
Another common misconception is the percentage threshold. This dictates that any original work can be used without fear of infringement so long as it is changed by a threshold percentage of 10-20%. This is again merely a misconception. The Court is concerned only with whether a ‘substantial part’ of the original work has been reproduced.
Ultimately, when dealing with original work, builders should endeavour to consult their lawyers to minimise the potential for disputes to arise under the Act.