Whilst not forgetting that today is the “good old days” that we shall all look back to in a few years’ time, in the real good old days protection of the intellectual property in an architect’s designs was relatively simple.
The client’s licence to use the designs did not arise until a certain stage of the project had been reached, and therefore a certain level of fees had become due to the architect, which would reward him for the licence in the design. In addition, under the standard RIBA terms, the licence could be withdrawn if a client had failed to pay fees that were due.
All drawings were provided in hard copy so that anyone tempted to tamper with the designs would effectively have had to start from scratch to reproduce an architect’s work.
Now, it is all change. There is increasing resistance from clients to agreeing that a licence should not pass until later in the project, normally after planning consent has been obtained. There is equally strong resistance to the licence being subject to payment of all outstanding fees. It is becoming more difficult for an architect to ensure that he is fairly remunerated for the intellectual property in his designs as well as for the time and effort in producing them.
The second new concern is the ease with which drawings can be amended once they are provided in PDF or DWG format. Any project using Building Information Modelling (BIM) requires members of the team carrying out design work to share all materials produced in electronic format. Even on non-BIM projects, clients and contractors generally expect that all design materials will be provided electronically. Where this is required in DWG format, it is easy to use the information in the drawing to produce an amended or more detailed design. Even drawings produced by PDF can, these days, relatively easily be turned into a format which can be amended.
Amongst members of the architects’ profession, it can generally be assumed that an architect would not use the design materials of another architect without ensuring that the first architect’s permission had properly been sought, and without checking exactly what licence had been granted for a second architect to use the materials. However with the increased use of design and build contractors, and sub-contractors carrying out design obligations, those professional obligations do not apply. Contractors and sub-contractors, supplied with electronic drawings as part of the tender process, may quite innocently assume that they are entitled to use them to develop the design.
Two difficulties therefore arise for architects. One is to ensure that the fee payments at various stages of the project properly reflect payment for the intellectual property in the designs. The other is to ensure that the authorship of the design is recognised and that the integrity of the design is protected.
Frances Alderson, Partner, Fladgate LLP (firstname.lastname@example.org)