The recent decision of Clarendon Homes v Henley Arch has examined just who owns what when it comes to the design of a building.
The case gives a clear lesson, whether you are the builder employing a designer in a design and construct contract or the architect or the developer in a straight building contract, that the contract should state very clearly who owns the intellectual property in a buildings design.
It may be that the intellectual property in the design is licensed for the purpose of the agreement or for some longer or shorter period. Whatever the case, a developer should always ensure that it can always get access to the design of a building until it is complete, guarding against the situation where an architect or builder can hold a project to ransom pending the payment of disputed fees or insolvency.
The Clarendon Homes case involved a claim by a builder of project homes against another project home builder alleging that the latter had breached the copyright of the former by building a project home of very similar design to the former's design.
During the court's deliberations, it stated that, although two designs might be very similar, it is no breach of copyright where two people reach the same design by coincidence or where the second party had expended such skill and labour in the creation of the architectural plans to justify the conclusion that they were original artistic work.
The court also held that "the degree of protection under copyright law of an architectural plan may be limited by reason of the significant proportion of features which are common to all plans, with the result that the remaining proportion of the plan in which copyright will subsist is consequently limited".
December 1999
March, 2001
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