Ideas are precious, precious things. A good one can upend a movement or make a career and they are, of course, worth a great deal. Architects live in a competitive globalized world, and in the race to succeed, defining who owns ideas is becoming increasingly important in an architect's professional life. ArchDaily has previously explained the essential points of architectural copyright and explored the complexities of legal judgments, but what if you want to work internationally? It's a much more complex issue than "China will let people copy what they want" or "Belgians will sue you" and if you want to work outside your home country then it's essential you understand the variables.
Fortunately, we've got you covered: we've pulled together a rundown of the essentials of copyright law and practice in some of the most popular countries to find work - read on for more.
Holding all copyright law together is the Berne Convention: an international agreement dating right back to 1886 and covering the vast majority of the world. The convention was put together primarily to tackle the problem of international publishers being able to publish translated versions of foreign books without any obligations to the original author, but it's been expanded over the years to form the basic underpinning of international copyright law - and it covers architectural drawings and plans, as well as the buildings themselves, as long they're built in a signatory country; that shouldn't be a problem unless you're building in Greenland or Taiwan. Berne outlines a few key principles of copyright: copyright is automatic and requires no registration, copyright is fixed at a minimum of 50 years after the authors death (with exceptions) and works granted copyright in one nation signed up to Berne get copyright in them all. [1]
In theory.
The problem for architects is that there's no international enforcement mechanism for this; you're totally dependent on the will of the national courts to implement Berne which, in some countries, is noticeably lacking. You may theoretically have automatic copyright for your work in India, but you can't use an American court to protect it and you probably can't hope to invoke Berne and win if the national courts don't want to enforce it.
Architectural copyright in the US has previously been covered in some detail here, along with the basics of copyright law as it tends to apply to architects, but the biggest difference between the USA and standard law is that automatic granting of copyright works a little differently. Although anything you create still automatically belongs to you, you'll need to register your drawings with the Copyright Office in order to receive Statutory Damages or attorney's fees in any legal matters. [2]
This doesn't mean you're guaranteed to win in a lawsuit, though. The judiciary in different parts of the US vary in their approaches towards architectural copyright - often granting it much "thinner" or weaker protection than novels or artworks, for example [3] - on the basis that architecture is a compilation of standard elements like windows and doors - so any copyright infringement case can't just point to similarities, but has to prove "substantial similarity" of ideas, which can be tricky. This is an even bigger problem when you're working in more vernacular architecture, where a lot of the design can be defined by these unprotected elements. This leaves a lot of space for working from somebody else's designs, which can be perfectly legal. [4]
For an excellent example, this breakdown of one particular trial in Florida where a second Miami firm had access to the original drawings and designed a condo with a very similar outward appearance points out that doing so is perfectly legal, since the designs accomplish this in different ways. Possibly because of this, lawsuits for copyright infringement in architecture are rare in the US.
Brazil has signed the Berne Convention and its 1993 law protects architectural drawings and provides for architects removing their name from a modified project, but considers the works of architecture themselves a sub-category of works of art. There have been recent attempts to reform copyright law in the wake of increasing digitalization, but these plans seem to have been put on the backburner after recent political turmoil in Brazil. [5]
The EU deserves special mention for recent efforts to reform "Freedom of Panorama" - broadly the ability to include an architectural work in a photograph without breaching copyright. This isn't about photographing the building specifically, which is a separate matter, but instead if a copyrighted building or artwork is in the background of an unrelated photo: for example, a tourist picture. Instead, would be photographers would have to first get permission from the copyright holder, which may not be entirely practical.
Fortunately, this was not taken forward and instead the commission recommended an adoption of a standard Freedom of Panorama across the EU. Outside this, the EU seems to have no central directive on architectural copyright that isn't already covered by the Berne Convention.
The UK has implemented the standard protections mandated by the Berne Convention, and protects both architectural drawings and buildings themselves as "artistic works." Recent reforms have lengthened the protection to the life of the author plus 70 years for artistic design, which includes architectural works, but other aspects of Berne apply totally, including automatic copyright and the ability to protect designs from modification.
The standard RIBA contract ensures the creator keeps hold of the copyright, however when the standard contract is not used this isn't always the case, and during competitions or bids it's wise to check contracts to see who owns the copyright after the design is submitted. Copyright is not infringed if the copies are a photograph or film of the building or drawings, if it's represented in a "graphic work" (for example, a painting) or is something is broadcast from it. [6]
China has signed the Berne Convention, but Chinese law only applies the standards mandated by Berne to buildings that are considered important or unique. More utilitarian construction is much trickier to get defensible copyright for, since China's definition of architectural copyright excludes use of raw materials, common elements and in most cases, building interiors. That doesn't mean that architects in China have to rely on building landmarks that can be protected under the Berne Convention, however. Chinese Copyright Law protects "architectural works" - normally drawings and models - but it's also possible to protect novel exteriors under Design Rights or innovative functional elements through patenting.
While it's quite possible to protect architectural designs in China, one issue for foreign architects that could appear is the ownership of the copyright. Where Berne doesn't apply, simply creating the work isn't enough to guarantee your ownership; often, the Design Bureaus that architects in China must be affiliated with are responsible for the work and are granted the right to it, rather than the individual architect, although there seems to be a lot of inconsistency on this matter legally. This also means that architects are often sidelined when it comes to alterations made to their work. [7]
Enforcement can also be different to what most architects in the West are used to. According to the British Consulate in China, filing a case with the civil courts is the most common way to approach an infringement. But even if the court does find that a copyright was infringed, the economic weight of a new development is frequently considered far more important than the design rights of a plan, and typically a resolution where the infringer is asked to make changes to their designs occurs rather than stopping or demolishing anything. Any damages awarded are almost always statutory, and compensation is rare. [8]
Copyright law in the UAE specifically protects "architectural works and engineering drawings and plans" and copyright automatically rests with the individual who creates those plans. Despite this, is is apparently commonly thought in the UAE that the project owner is the automatic holder of copyright, rather than the architect, and it's been noted that some firms in the area aren't very experienced with copyright law or the concepts behind it.
However, law states that buildings that do infringe copyright can't be seized, demolished or altered, although they will provide compensation for the original architect. Specifically, this is said of "mabaani", which is a structure that can be entered and inhabited in some way, so take note that this may not apply to a structure that doesn't fulfil this requirement (for example, an unmanned processing plant). [9]
Indian law since 1953 provides for "any or structure having an artistic character or design, or any model for such building or structure" being protected, but there's no precise definition of what this "artistic character" comprises. Interpretations have shifted over time; in the past, anything which took effort to create was protected, but since 2008 a precedent has been set where a minimum standard of creativity and originality is required to establish copyright in a legal battle. It also doesn't protect construction methods or process, referring only to the aesthetics of the building. Getting to that stage is fairly simple, however, with a standard implementation of the Berne standards meaning that you're protected from false attribution and are automatically granted copyright upon creation, although it is possible to register works.
Like the UAE, courts have no power to seize infringing buildings, or even bring an injunction against a building which infringes copyright to prevent it being built, instead only being able to bring criminal charges or require the payment of damages, which leaves Indian protection of architectural copyright fairly weak. [10]
Despite the protections provided by the Berne Convention, pirate architecture does happen (and it should be noted that ArchDaily is not a substitute for professional legal advice). But is it necessarily a bad thing? Check out Vanessa Quirk's discussion of the impact of Chinese copying below:
Why China's Copy-Cats Are Good For Architecture
References
- Berne Convention for the Protection of Literary ad Artistic Works
- United States Code, Title 17, §504
- Kearney, M. M. and Tillery, M. K., "Walking the 'Thin' Line of Architectural Copyright Protection", The Legal Intelligencer (March 15, 2013)
- Hancks, G. "Copyright or Copy Wrong? Sixth in a Series", The American Institute of Architects
- Harmon, E., "Copyright Week: What happened to the Brazilian Copyright Reform?", Creative Commons (2014)
- Winston, A. "Five things every architect should know about copyright" BD Online (2013)
- de Muynck, B., "Architecture and Copyright"
- Intellectual Property Office, "Intellectual Property & Architecture in China"
- Hansen, P., "Copyright and the Building Boom in the United Arab Emirates" Asia Law Profiles (2008)
- Mittal, P., "Copyright and Architectural Expression" Law Wire (2008)
