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Architect’s drawing – IP

A client may acquire a property with an existing planning permission. If that planning permission is granted on condition that the development is carried out in accordance with specific drawings, then there are important copyright issues to be resolved. This is because any development carried out in accordance with the planning permission is likely to infringe the copyright of the architect who prepared those drawings – even if new drawings are created from scratch by a different party. A licence to use the drawings must be obtained from the copyright owner, or a new planning permission must be submitted (using new drawings which are not based on the previous drawings).

This is well illustrated by a recent case involving the conversion of office buildings into student flats. Buyer 1 exchanged contracts, and then retained architects who successfully applied for planning permission. However, Buyer 1 was unable to complete and so the Seller sold to Buyer 2 (who therefore acquired the property and the benefit of the planning permission). Buyer 2 appointed new architects and went ahead with the development. At that stage, Buyer 1 got its architect to assign the IP/copyright in its drawings and brought infringement proceedings against Buyer 2.

The court had little hesitation in finding there was a breach of copyright because the building constructed was substantially similar to that in the original architect’s drawings. Thus the claimants were entitled to damages or an account of profits.

The important lesson is that a buyer should not assume that there is a right to use the plans in a planning application. Having said that, if a buyer purchases from a seller who engaged the architect who prepared the plans and drawings, then there will usually be an implied licence which can be transferred to the buyer. But, if the buyer wants to make changes to the original design, then it may be necessary to get permission from the architect. The real complications arise when the architect was not instructed by the seller but by a third party (as happened in this case). In that situation, the buyer’s right to use the drawing will be very restricted since there will be no implied licence. The answer, of course, is to obtain an assignment of ownership of the copyright, or to obtain an express licence to use the copyright work.

One final point to note is that the claimants in this case wanted damages; if they had acted more speedily, they might have been able to go for an injunction (and cause yet more problems for Buyer 2). See Signature v Fortis [2016] EWHC 3583 (access free at www.practicalconveyancing.co.uk). Source: Charles Russell Speechlys; Nabarro.

 

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