Copyright has no place in Architecture: Part I - Introduction

When was the last time an architect sat in his tower drafting his vision in isolation? Probably back in 1985, and things were different back then - but I can’t say for sure since I wasn’t born yet. Fast forward (past the invention of fax and dial-up internet) and thankfully design is finally growing up. We're now progressing into a world of evolving work product, shared expertise, and collaborative solutions to built assets. Somehow, the Copyright Act, RSC 1985, c. C-42 (the "Copyright Act"), has failed to keep up with this progression.

Let's unpack the Copyright Act. It says at section 3(1):

copyright, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public ...

Elsewhere, it also defines what Architectural work means (section 2):

any building or structure or any model of a building or structure; (oeuvre architecturale)

Architectural Work is included as a subset of Artistic Work (section 2):

artistic work includes paintings, drawings, maps, charts, plans, photographs, engravings, sculptures, works of artistic craftsmanship, architectural works, and compilations of artistic works; (oeuvre artistique)

The point of this article is to demonstrate how ludicrous Copyright is in today's delivery of a built asset.

It is important to note that the term “model” is undefined. Therefore, a model could conceivably include a Building Information Model, but that's not the point of this article. The point of this article is to demonstrate how ludicrous Copyright is in today's delivery of a built asset. Let's step back for a moment and review what rights a copyright gives to an individual. It is the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever. I'd like to stop there for just one moment because for as long as I've practiced architecture (which is admittedly only 10 years), my entire professional career has been based on the reproduction (substantial or not) of the material form of others.

Let's put forward a hypothetical. An architect (and all consultants for that matter) is engaged for the modernization of an existing structure. In order to perform that work, the architect must do several things:

• They must obtain the as-built conditions of the project prior to their involvement;
• They must engage engineers and other professionals to inform their work;
• They must develop the design, typically premised on a basis of design, that is informed by various products for the resolution of design issues:
• They usually must produce record drawings based on as-built contractor markups; and
• They must turn over operational and maintenance data for the purposes of operating an asset.

Every one of these items is a copyright infringement. In Architecture, the important expertise that should be copyright is the right to the artistic expression in a design. Insisting on a copyright beyond that artistic expression is excessive and detracts from the industry as a whole.

While many consulting arrangements contain an explicit or implied license to use one another's work product, let's take a strict approach to interpreting the Copyright Act in architecture to demonstrate the absurdity that arises when we apply copyright to architectural design.

Over the next 5 days, I'll discuss each of these hypothetical aspects in detail as a registered architect and an active non-practicing lawyer in the Province of Alberta. You're cautioned to obtain legal advice on all of these opinions but I hope that they'll spur some active conversation for the industry.

Roddy Handa is an architect and lawyer who specializes in digital project delivery. He is the key founder of holo-blok - a collection of architectural problem solvers specialising in building solutions.