Many Registered Master Builders (RMBs) have their own suite of house plans for their customers to choose from, and they are a valuable intellectual property asset of the company.
They may also be commissioned by clients to draw up their dream home for them.
RMBs should be aware that copyright ownership is different in each case, and should take steps to ensure their intellectual property is protected.
If your firm has developed and drawn the plans then the copyright is owned by the firm. If a client has commissioned the plans then the default position is that they own the copyright.
We all know of cases where a prospective home owner has found a plan they like while cruising the web, has printed it off and had it drawn up for someone else to build. It also happens that after being commissioned, and drawing up plans for the dream house, the client has taken the plans and built with someone else.
So how do you protect your intellectual property (IP)?
First, you assert your rights — mark the plans with your logo and a statement that the plans are the property of your firm and are copyright, and that legal action will be taken against anyone found to be in breach.
The usual format for copyright includes the © symbol, year of creation, the owner’s name and the phrase “all rights reserved”.
Second, you defend it. If you do find that someone has breached your copyright you must take that action immediately. Should it come to court, the actions you take, or don’t take, may weigh in the outcome.
You should contact the infringer, either in person or on the phone, and advise them that they must cease immediately any unauthorised use of your IP. Follow that up with a letter.
Monitor the situation. If your efforts do not work then contact your legal advisor immediately. A cease-and-desist letter from a law firm may do the trick. If not, the next step will be to apply (or threaten to apply) to the courts for an interim injunction.
This is an expensive exercise to prosecute and to defend and, in most cases, is sufficient to convince the infringer to stop.
The infringer may feel they have a right to, or at least an excuse for, the infringement. It is illegal to copy the plans except with the express written consent of the author. But they may have the written consent of the owner of a house already built with your plans.
You should advise them that the owners only have a license for the purpose of building the house — they do not own the plans.
As for those commissioned plans, unless there is a contract dealing with ownership of copyright, then the Copyright Act 1994 says that copyright in a drawing will belong to the client, even if the client hasn’t actually paid for the work (the Act only requires the client to have agreed to pay).
You should ensure before you fire up the CAD programme that you have a written agreement with the client as to ownership of the plans, and for the build itself.
Another excuse often encountered is that the plans have been changed by 20% — a myth that says if they do that they haven’t infringed the copyright.
As with most legal concepts, infringement is a question of degree, but even copying a small part of a plan can be an infringement. Minor variations will not avoid copyright infringement.
To determine if there is an action for copyright infringement under the Act, you must prove that the plans are an original work, that you own the work, that there has been reproduction of a substantial part of the work, and that the reproduction is objectively similar to the original copyright work.
“Objective similarity” is the most difficult issue to prove. The court’s test to assess objective similarity is based on quality not quantity. Copying even a small part of a “work” may infringe copyright if the essence of the work is copied.
On the other hand, where the essence of the work is not taken, copying a larger portion of a work may not be an infringement.
Conversely, copyright infringement may be defended by proving the plans aren’t copyrighted, or that you don’t own the rights, or that there is no “objective similarity” between the copyrighted plans and the copied plans.
As you can see, it is important to document your ownership of IP. However difficult it can be in practice to prove your work has been copied, you may not be able to successfully sue for infringement if you can’t prove the copyright itself.
The copyright is in original works, so the works must be retained. Keep your drawings in a safe place. You may be relying on them one day to prove what’s yours.
