Your drawings won the planning consent but the site has since been sold. Can the new developer use them?
Sale of a site and ceasing to be involved in a project can lead to concerns for architects about copyright issues and the ongoing use of their drawings.
A recent case is a good example of how the courts will look to protect the commercial interests of architects where drawings are exploited by a third party without an appropriate licence.
In Signature Realty v Fortis Developments, Signature obtained planning permission for a block of student flats in Sheffield on the basis of drawings prepared by its architect, C&W. The planning permission required that the development be carried out in accordance with C&W’s drawings.
Copies of C&W’s drawings were made available to the public via the planning portal, which made it clear that the drawings could only be downloaded and/or printed for the purposes of comparing the application with previous schemes and in order to check whether developments had been completed in accordance with the approved plans.
C&W’s drawings included a notice that copyright vested in the architect and that the drawings should not be copied or reproduced without C&W’s consent.
Signature was unable to secure funding to purchase the site and complete the development, and the site was eventually bought by Fortis.
Fortis carried out the development in accordance with the planning permission using a design & build contractor, Beaumont, it had worked with on other projects. It appears that Beaumont’s own architect visited the site, took measurements and prepared AutoCAD drawings (taking into account C&W’s designs) which were used to carry out the development.
Aggrieved that it had lost out on the site, Signature took an assignment of copyright from C&W and brought a breach of copyright claim against Fortis and Beaumont. The court was asked to decide whether there was a breach of copyright and, if so, to order an enquiry into damages and additional damages and to grant injunctive relief to prevent any continuing breach.
The judge held that the works Fortis and the contractor had carried out were an infringement of copyright. In reaching that decision, the judge found that the drawings produced by C&W were sufficiently original to attract copyright and that Beaumont’s drawings were sufficiently similar to C&W’s drawings for there to be an infringement. This was almost inevitable as the project had to be built in accordance with the planning consent.
While the judge refused to grant an injunction to prevent continuing use of the drawings (as the building had been sold and neither party had a continuing interest in them), and was not willing to grant ‘additional’ damages which can, in some circumstances, be awarded under the Copyright Designs and Patents Act, he was willing to make an order ‘... for an enquiry or account in the usual way’ in order to deal with damages, meaning there would in all likelihood be an entitlement to compensation for the copyright infringement.
The take away point from the case is that provided that planning drawings are marked as being subject to the copyright of the architect and not to be reproduced without the consent of the architect, a third party who does not have a licence or sub-licence to use the design will not be entitled to use the drawings without the architect’s consent.
Angus Dawson is partner at Macfarlanes
IN PLAIN ENGLISH: REASONABLE SKILL AND CARE
The other class of obligation most commonly found in architects’ appointment documents is the obligation to use reasonable skill and care. This is the standard of care most commonly applied to the performance of services by professional consultants. The basic nature of this obligation is set out in the 1950s case of Bolam:
‘The law requires of a professional man that he live up in practice to the standard of the ordinary skilled man exercising and professing to have his special professional skills. He need not possess the highest expert skills; it is enough if he exercises the ordinary skill of an ordinary competent man exercising his particular art.’
Often architect’s appointment documents will include a slightly more detailed obligation, providing that the architect is to use the reasonable skill and care to be expected of an architect experienced in performing the agreed services in respect of projects of a similar size, scope and complexity and in a similar location to the project in question.
In assessing whether an architect has complied with its obligations, the courts will look at whether the architect’s conduct falls below the standard of the ordinary competent professional and whether there is a substantial body of opinion within the profession which would support the actions taken by the architect.