Copyright has no place in Architecture: Part II - As-Built Conditions

Thank you to everyone who read the first part of this series. If you missed it, here is a link to Part I - Introduction. I encourage everyone to share these articles so that we can spark some industry discussion on the topic.

Continuing on the last post, this post digs deeper into copyright law and something all consultants have done at some point in their careers: as-built conditions. As-built conditions refer to capturing and/or documenting how an existing building was actually constructed.

As an architect, what does copyright infringement have to do with documenting a building that has been constructed so that you can make improvements for the owner?

As an architect, what does copyright infringement have to do with documenting a building that has been constructed so that you can make improvements for the owner? Well, when an architect is engaged to make alterations or improvements to a building, they must first create a base drawing of what is currently there. This might be based on existing drawings (usually prepared by another architect) or might be a physical measurement of on-site conditions. 

Let's return to where we left off - section 3(1) of the Copyright Act.

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thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right

Reading this provision in context, the bold section refers to published works. According to the Copyright Act,a piece of architecture is published when it is constructed (section 2.2(1)).

Full stop. Once a building is constructed, a copyright arises.

Full stop. Once a building is constructed, a copyright arises. That means one cannot produce or reproduce the work - whether it is by tracing existing drawings or site measuring the existing conditions. So in the context of as-built conditions, measuring and reproducing a built asset is the definition of copyright infringement. Speaking as an architect, we are all guilty of this. While there are exceptions to this reproduction, I do not believe any are applicable here. The fact of the matter is, if you redraw an existing building - whether as an architect, engineer, owner, contractor, or trade - you've committed a copyright infringement.

Isn't that absurd? Most of these buildings outlive the people who've designed them. Yet there remains an overarching right that prohibits future consultants from building on this work. Don't worry, there is a limitation on this right. It reads at Section 6 of the Copyright Act:

The term for which copyright shall subsist shall, except as otherwise expressly provided by this Act, be the life of the author, the remainder of the calendar year in which the author dies, and a period of fifty years following the end of that calendar year.

That's great! After 50 years after an architect dies, you can now redraw their building for a purpose entirely unrelated to the initial purpose the building was designed in the first place. I am currently 33 (even though I may look 43). Let's say I make it to 83. That means no one can reproduce any project I've created for potentially 100 years.

Maybe 100 years isn't too long to wait for some. However, I am also employed by a corporation and under the Copyright Act, Section 13(3):

Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright, ...

It's much harder for a corporation to die. This moratorium could conceivably last much longer than the 100 years first suggested. This is a disservice to clients, to the general public, and to the profession of architecture.

Why do we, as professionals, insist on this concept of copyright that we're all guilty of infringing.

Why do we, as professionals, insist on this concept of copyright that we're all guilty of infringing. I would submit this is not the purpose of the Copyright Act. Alternatively, if it was, it shouldn't be any more. Our profession requires this infringement as it serves a greater purpose for our clients - the expected redevelopment of built assets for a variety of reasons.

While I appreciate that there is a need for copyright to prevent the reproduction of an original work in an unanticipated fashion, this is currently not how the Copyright Act is written. Therefore, as a profession, we must circumvent the application of these provisions to avoid the absurdity that results.

At a minimum, I would encourage all architects to assign this copyright to the owner of an asset for a specified purpose. That purpose has started to surface in many industry standard contracts, such as in the IBC 100-2014 BIM Contract Appendix, the right to reproduce and use content for the sole purposes of maintaining, repairing, altering and adding to the Project for the life of the Project.

This article is provided for general information purposes only and does not constitute legal or other professional advice of any kind. Readers are advised to seek specific legal advice by contacting their own legal counsel. Roddy Handa and holo-blok architecture does not warrant or guarantee the quality, accuracy or completeness of any information in this article. The content should not be relied upon as accurate or fit for any particular purpose.

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.