Here’s another great article from Damin Murdock regarding copyright infringement of architectual
drawings. We spend a lot of time talking about ways to improve workflow and magins but as
you rightly know, one wrong step can set you back years! Its not often that we get free legal
advice so this is well worth a read.
Copyright infringement of architectural drawings in development consent
In the High Court case of Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006]
HCA 55, Concrete Pty Limited (“Concrete”) and Parramatta Design & Developments Pty Ltd (“PDD”)
had entered into a joint venture agreement with respect to the development of land owned by PDD.
Regrettably, the joint venture relationship broke down which resulted in Concrete acquiring the land
from PDD. Upon the acquisition of the land, Concrete proceeded to construct on the land based on
architectural drawings created by PDD. The plans had also been used to obtain the Development
Consent.
When Concrete began construction, PDD objected to Concrete using the architectural drawings as it
claimed that it owned the intellectual property rights in the architectural drawings. Accordingly, Concrete
issued legal proceedings seeking a declaration from the Court that there had been an implied grant of a
licence for Concrete to use the architectural drawings.
The High Court held that the drawings were made available for the purposes of obtaining Development
Consent and therefore, there was an implied licence to use the drawings by Concrete for the construction
of the project. It was further held that in absence of a written license agreement, PDD had received a
commercial benefit for producing the drawings and subsequently selling the land. Accordingly, PDD could
not revoke the implied licence to use the architectural drawings.
For some time after the abovementioned case, it was presumed by developers that land purchased with
Development Consent could expect to have an implied licence to use the architectural drawings which
formed part of the consent.
However, in the recent Federal Court of Australia case of Tamawood Limited v Habitare Developments
Pty Limited [2013] FCA 410, the Federal Court of Australia distinguished between situations where an
architect has not received any benefit, from those where they have received a benefit.
In this case, Tamawood Ltd (“Tamawood”) sought relief against a developer, a builder and an architectural
firm for allegedly using its architectural drawings and plans (the “Plans”). During the initial stages, it was
agreed that Tamawood would prepare the Plans at no cost, on the basis that it would build the houses once
the Development Approval had been obtained. However, the relationship between the parties broke down
and Tamawood was not retained to build the homes.
The Federal Court of Australia held that the rights to use the Plans were terminated when the conditions
attached to the copyright material was not fulfilled. That is, there was an implied licence to use the Plans
if Tamawood was retained to build the homes, however, since Tamawood was not engaged to build the
homes, the implied licence was terminated. Furthermore, since the licence to use the Plans had been
terminated, the Development Consent was defective. Accordingly, a new application was required to be
made with non-infringing architectural drawings and plans.
Tips
If you regularly sell model homes, make sure your company logo, name and a © is clearly placed on your designs.
If you are planning to build based on someone else’s drawings and plans, make sure the owner of the land owns the copyright in the material before you build, otherwise, you may be liable.
If you have any questions in relation to this article, feel free to contact Damin Murdock for a free consultation on (02) 9262 5495 or join his mailing list by sending an email to reception@mclp.com.au with the subject title: B&C Subscribe
To your ongoing success,
Kurt
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