Copyright Law in architectural work in theory and in practise
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“Everything is copy”
Deutsche Welle web-site
One of the most famous "architectural plagiarism" of the recent years is a project called "Meiquan 22nd Century" in Chonkinhu that with certain changes reproduces the project of shopping mall "Wangjing SOHO" in Beijing, created by a well-known architect Zaha Hadid.
"Wangjing SOHO" is a complex of three 200-meter buildings. The projects of the British architect often become objects of plagiarism. Zaha is not frustrated because of it, she believes that every creation is a reflection of something already existing. But the developers of "Wangjing SOHO" in Beijing became seriously worried about the situation of infringement the copyright law, when there appeared a risk that the original project can be finished later than the project-plagiarism.
The issue of protection of copyright in architectural work often arises in two cases: if the architectural work is copied without a permission of a creator (plagiarism), and if there is a dispute between the executant of architectural design (the author of the architectural work) and the client.
But first of all lets consider the issue of architectural work as an object of copyright.
The Law of Ukraine "On Copyright and Related Rights" stipulates that architectural work is a piece of art in the sphere of building the objects and landscape design. Thus, the built buildings and drawings, sketches, plans, models are included to the list of pieces of architecture. Regardless of the method of realization, the architectural work should be the result of creative intellectual activity of the person.
In this aspect, The Law of Ukraine "On Architectural Activity" uses the term "architectural decision", which is defined as the architectural idea for spatial, planning, functional organization, exterior and interior of the object of architecture and also for engineering and other support for its realization.
The Copyright solutions are realized in the architectural part of the project. Thus, not every architectural work, but the only one that contains the author's creative intention can be protected.
The creation of architectural objects is a complex and long process consisting of several stages, from preparation of city planning conditions to the legalization of a constructed object. The design stage is the obligatory stage of the construction of architectural object, and it could include conceptual design, design, working project and it involves the development of working documentation.
The project documentation is subject to development, approval, examination, and in certain cases, approval by the public authorities. Chief architect and chief project engineer manage the project stage.
Thus, we can conclude that despite the fact that engineering and architectural parts of the project are inseparable, the copyright in architectural work covers only the creative part of the project. Each part of the project (preliminary design or specification documents) includes a list of schemes, plans, drawings, descriptions, but not every part has creative author's intention. Only those parts of the project, which include the creative elements subject to legal protection.
Another important issue in terms of protection of copyright in architectural work is an issue of copyright propriatary.
The primary subject is the author - a person, whose creative work created a piece of architecture. Usually more than one person works on architectural projects and in this case the co-authors have the copyrights.
The author or the co-authors have moral and proprietary copyright. However, property copyright can belong to other entities and in terms of architectural work we should address to the Law "On Architectural activity". It should be noted that the rules of law are consistent with the provisions of the Civil Code of Ukraine in terms of the official works (the property rights belong to the employee and employer) and works created on request (property rights are owned by the customer and by architecture).
In the aspect of the establishment of copyright in architectural work, the attention should be paid to the dispute between the LLC "AZURIT-ST" (the project organization) and the Department of residential Construction “State fund assisting the construction of youth (the project customer) in the case number 01 / 76-68.
According to the facts of a case, the parties signed a contract for design and service works. In turn, the performer (LLC “AZURIT-ST) signed a contract with an entrepreneur Yurishynets which subject is development of the project documentation for the construction of multi-section residential building with an attic storey, built-in and attached rooms (the shopping mall) down the street Vatutina, 706 in Kovel city.
According to the contract with enterpreneur Yurishynets “the developed project documentation is the intellectual property of a limited liability company.” Allthough the project was prepared and handed to the customer, the contract between the Executor (LLC “Azurit-ST) and the Client (the Department of residental construction) was terminated due to a lack of project documentation. The acts of services rendered were not signed and the work was not paid.
The customer signed a contract with another project organization, which developed its project on a base of an existing project.
The courts of first instance and appeal courts refused to satisfy the claims on the basis that the contract signed between LLC “Azurit-ST” and Yuryshynets is the construction contract and the Claimant (Azurit-ST) couldn’t obtain the copyright in this case and therefore he is not a subject of the copyright in architectural work.
The Supreme Economic Court of Ukraine canceled the decisions of lower courts on the basis that the provisions of the contract between LLC "AZURIT-ST" and FE Yuryshynets in fact has not been investigated, it hasn’t been established to whom the exclusive property rights on the piece of art belong, and whether the violation of Claimant rights existed.
At the same time, the new trial court of the first instance and appellate court reached the following conclusions: "the methods and conditions of usage of the object, were not defined, ie the scope of rights by the customer, that are transmitted to the customer, as a result of the agreement.
So a contract from 10.09.2006, which was signed between LLC "AZURIT-ST" and entrepreneur Yuryshynets can not be considered an author's contract. By its nature this contract is the works contract for carrying out the design work, which is regulated by the Civil Code of Ukraine art.887-891. "
The Supreme Economic Court of Ukraine upheld the decision of the lower courts. Even if the structure of a contract is similar to the structure of a construction contract, the essence of the agreement is still important as it inherently provided the creation of copyright law - a architectural work.
This is confirmed by the very wording of the the subject, which includes the development of project documentation on "architectural solutions" that actually is the author's intention.
Moreover, the legislation does not prohibit the conclusion of contracts for the creation an object of copyright on request and assignment of the exclusive property rights to the object simultaneously - so this agreement is inherently different from that which the article 1112 of the Civil Code of Ukraine regulates.
Thus, the agreement under Article 1112 Civil Code of Ukraine includes methods and terms of using an object of intellectual property as essential conditions due to the fact that a contract under Article 1112 Civil Code of Ukraine stipulates its using (de facto grant of license) by its nature , but not the assignment of exclusive property rights to a piece of art.
Now let's proceed to the scope of the rights that the author has on a piece of architecture.
The Law of Ukraine "On Copyright and Related Rights" provides that the author owns moral and property rights to the object of copyright.
As for the moral rights in a work of architecture, the attention should be paid to the right to claim the authorship. Practice shows that sometimes there are situations when several authors run the project, but not all of them are indicated as the authors of the project.
In this case, the author's creative contribution to the project is a subject to proof. If the architectural work is a work for hire , than the list of duties of a person, the scope of work on the project and the character are investigated.
Another moral right which the author of a piece of architecture has is the requirement to maintain the integrity of the creature and a resistance to distortion of a creature that may harm the honor and the reputation of the author. This right can be violated, for example, due to the restoration of certain architectural object. The key in this case is the proof of reputation risk of the author.
Another category of author's rights are exclusive property rights, which are divided into right to use and to permit or to prohibit the use of the work by others parties. The Law of Ukraine "On Copyright and Related Rights" (part 3 of Article 15 ) includes a list of this rights which is not exhaustive.
However, in aspect of a piece of architecture it is important to focus only on a few property rights, which in view of the specific of copyrighted work are of paramount importance.
The exclusive property right of the author for modification of the architectural work is such a right. Frequently there are individuals who orders the design of a particular object to the Executor, and then, on some stage, for example, on the stage of a drafting design transmit the conceptual design to completion to another person, who takes it as the basis. And such people should remember that the processing of a project is the exclusive property right of the author of piece of architecture.
And it does not matter whether the processing were creative or not.
The example is the decision in the case number 5 / 128-07 at the suit of the Institute for Steel Structure to LLC "Hervin" concerning copyright infringement in the construction of the radio mobile tower "Kyivstar" in Hraniv.
Due to circumstances of the case specialists , working for the Claimant , came for the survey the tower to detect defects and eliminate them, but in the process of exploring the working documentation and the tower itself, found that the Respondent used the project of the Institute to construct cellular towers. Expertise confirmed the conclusions of the Claimant, stating that "the working draft № 327/2004 - VIN111-KM" is mostly the result of uncreative processing of the working draft № 22731-3-KM"
At the same time the expertise that was taken into the account by the court as the main evidence in the case, investigated creative and uncreative parts of both projects, compared drawings, specifications etc.Thus, the court ruled in favor of the plaintiff. The authors of pieces of architecture are endowed with special rights according to the law. For example, such a special right is the right to participate in realization of projects of these works.
So, at any stage of the project authors have the right to control the process of building the facility and can be admitted to the process of building. However, a contract with the author of the work may waive of this right according to Agreement.
The Law of Ukraine "On Architectural Activity" also provides special right to authors of works in the arts of building facilities and landscape design to make changes to uncompleted construction or constructed work of architecture, urban planning, landscape art in case of changing its functionality or reconstruction. Should not be forgotten the right of the author of a piece of architecture to get royalties for the creation and using of a piece of architecture.
The right to get the royalties is connected with the absence in draft law such phenomena as the freedom of panorama at the moment.
However, a bill called "freedom of panorama" (it is the right to use the piece of architecture without the author's permission and without awarding him) submitted to the Verkhovna Rada of Ukraine 12.29.2014, under number 1677.
Also the authors of pieces of architecture should demand the royalties when the project of an object of architecture and the working documentation, which is developed on its basis, are re-used.
The Law "On Architectural Activity" stipulates that the project is permitted only once (unless the contract specifies otherwise), and re-implementation of the project is possible only with the permission of the author and is required with the payment of royalties.
Also the attention should be paid to another somewhat ironic provisions of copyright legislation envisaged in the Article 12 of the Law of Ukraine "On Copyright and Related Rights", under which the owner of the material object, in which the original piece of fine art or architecture is implemented, is not allowed to destroy this place without the prior offering it to the author for the price, which does not exceed the value of the materials used for its creation.
If the preservation of an object, in which the original work is implemented, is impossible, the owner of the material object in which the original work is expressed, should allow the author to make a copy of piece in an appropriate manner, and when it comes to architectural structures, a photo of a piece can be taken.
Summarizing the aforementioned, it should be noted that the piece of architecture - is the special subject of copyright , which relates to the art of construction the buildings and landscapes and can be protected in the form of a secured building and in a form of project documentation (sketches, drawings, models, plans). However, when it comes to project documentation, only its creative part, which includes architectural design, is a subject to legal protection. In the aspect of pieces of architecture, it is recommended to pay a special attention to the content of agreements, which are signed with the authors. in this aspect the attention should be payed to the whole list of exclusive property rights, including certain specific rights, and clarify the terms and the methods for their use by the contract, and in the case of the right assignment - to clarify the amount of corresponding rights.