Copyright has no place in Architecture: Part IV - Basis of Design
Welcome back! In case you missed them:
Continuing on my last three posts, this topic is about the basis of design and Copyright law. Basis of design is quite simply the process of using an existing product or system to inform your design. There are several problems with a basis of design approach but that conversation is for another day. The important part of this introduction is understanding what basis of design is.
I find a lot of irony in a profession that is so insistent on copyrights but relies so heavily on a “basis of design” approach. During all stages of design, consultants of all disciplines rely on real-world manufactured content to inform a design. A mechanical engineer draws a fan coil unit from Trane so that they can claim some ceiling space. An architect draws a curtain wall mullion and detail from Kawneer so that they can resolve the building envelope.
In many procurement models, it would be impossible to not proceed in this fashion. To not rely on available construction products would be akin to saying hot sauce cures COVID-19. It's irresponsible and unprofessional to not work with the best data you have available to you.
Our profession relies on these products. So to reiterate a section of the Copyright Act, we must produce or reproduce the work or any substantial part thereof in any material form whatever, of those manufacturers who create building products. To go one step further, to practice the profession of architecture (or engineering) and to insist on a copyright in what we’ve drawn, we must expropriate the intellectual property of other copyright holders - here, manufacturers.
Can that really be true? The answer is yes - but usually these manufacturers grant an explicit or implied license by these to reproduce their content in the hopes that their product will be selected. There is an incentive for them to have us base our designs on their products. Regardless if that license is implied or explicit, the fact remains that consultants often insist on a copyright that is at least in part the rightful property of another party.
This is most evident in the BIM world when creating Revit families or project content. Whether or not a license exists to reproduce manufacturer content, it is absurd for a consultant to claim a copyright in that reproduction. However, I see those types of claims constantly by practitioners.
Your secret sauce is not secret.
This reproduction is not the same as the process required to develop the family or content. That is arguably better characterized as a trade secret or patentable process, given the requirement of publication required under the Copyright Act. Assuming for a moment that one can allege that their workflow in building content is copyrightable - I have a revelation that all BIM professionals can likely agree on. Your secret sauce is not secret.
Professionals move between companies and converse within communities. Strategies are shared and approaches are critiqued. This should be an industry of refinement and not of secrecy - unless we want to remain the joke of the modernized world. Design and construction is lagging behind all other industries in terms of progression. I think many people are familiar with the McKinsey article on this (https://www.mckinsey.com/industries/capital-projects-and-infrastructure/our-insights/improving-construction-productivity). Construction labour-productivity has grown 1% per year for the last two decades. This is far behind the total world economy (2.8% per year) and manufacturing (3.6% per year). Maybe a little sharing of information (which will occur regardless) is welcome and will help construction to narrow this gap.
Regardless, if you insist that your content is subject to some sort of copyright, I would ask you to reconsider whether it was based on a ready-available product on the market. After all, if any part of your content is reproduced in any material form, you're guilty of infringing the same rights you're trying to insist upon with your project partners. Most importantly, at the end of the day, this does not serve your clients well - and that’s bad for business.
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.