18 January 2013

Zambia: Is an Architect Entitled to Copyright Protection?

THE Law of Copyright is firmly established by the Copyright and Performance Rights Act, Chapter 406 of the Laws of Zambia another closely related act is the Registered Designs Act, Cap 402.

The concept of copyright ownership of architectural designs is very clear in itself but not clearly defined in the law.

The laws protecting architectural works the world over are more associative laws such as those protecting intellectual property, authorship, artistic works or designs as opposed to specific and distinct mention of architectural works.

The Berne Convention of 1989 saw the inclusion of the United States of America and this set the stage for the recognition of protection of artistic works.

There have been cases for instance where, an employer has claimed rights to a design on the grounds that it is the employer who has commissioned the architect to produce this unique work. Unless expressly agreed upon, the right of copyright for the design remains vested in the architect as ultimately it is the product of the architect's intellectual work and special skills.

There often exists a misunderstanding between an employer or client (The person hiring the architect) and the architect as to who actually owns the rights to the design largely on the part of the employer.

Often a client would approach an architect and ask for architectural drawings for a flat they wish to build for instance.

Once the first unit is complete, the client may wish to extend the scheme to include extra units at the same location or at another site.

In this situation, the architect must give consent for his design to be reused and by law the architect is entitled to claim additional fees on the additional use of his or her work.

Unless otherwise agreed and specified the copyright for architectural works lies with the architect, and these rights cover methods and tools of production which may be unique to the particular works.

Generic works which are considered to be commonplace such as for instance a house plan containing three bedrooms and one master self-contained bedroom would not in itself be copyright protected but the copyright covers only the unique features; arrangements and combinations employed by the designer in the execution of the design solution are protected.

This stance is consistent with international practice and is described in clause 15 of the Royal Institute of British Architects Guidelines. (Pearce vs. Ove Arup)

In a case for instance, where an architect has been commissioned by a client to produce a scheme for a housing development and halfway through the design process, the client chooses to discontinue the works being done and asks the architect to hand over what he has done up to that point, the architect then hands over the conceptual sketches he has completed to the client and claims his fees up to that point and based on time spent and resources expended on behalf of the client.

The client then returns to the architect and demands to be given editable electronic copies of the work for the transmission to a new architect who would now complete the works and refuses to pay the architect.

Two legal issues arise here, the first being that it is illegal under Cap 442 to commission an architect to a commission where another architect was previously commissioned without the termination and completion of all outstanding liabilities and payments.

Secondly, the handing over of working electronic files from the architects office is the same as handing over a mechanic's tools or a biographers scrapbook as they are for his professional and personal use as tools to produce what the client is paying for i.e. the design.

The architect is well within his rights to withhold working electronic formats as they contain proprietary data.

The implication therefore is that the employer hiring the architect may not reproduce any part of the drawing or reuse any part of the design without the architect's permission.

Equally, no extensions may be made to already built structures using unique or distinctive features from the design.

The employer at times may approach a builder and request that they build a copy of what they had built for another client.

Even though the builder or contractor may be the one assembling the works, they play no part in the rights to reproduce the design or structure and become a party to committing an offence should they proceed to produce unauthorised copies of a building existing elsewhere.(Meikle vs. Maufe)

Piracy of intellectual property in the form of music, movies, designer labels, bags, shoes, software and electronic gadgets is well documented.

It is interesting to note that because of the construction boom, a number of citizens are living in houses with pirated designs.

The design may have been pirated from the Internet, a magazine or from a relative or friend who was "kind" enough to avail copies of the design.

Zamcorps may not be knocking on people's doors for these types of copyright infringements, but there is no protection from the law should the matter be pursued.

Copyright law protects the expression of ideas rather than the mere idea itself.

Ideas themselves may be borrowed and improved or developed further but particular expressions of ideas may not be copied and augmented without the author's permission or acknowledgement.

The architect is, however, limited in his rights to the product of his work in the fact that he has no right to prevent the owners of the building from altering it or destroying it completely.

The reasons and benefits of following copyright law are well documented with respect to other commercial artworks and technical products.

As much as one may copy a style of fashion from a colleague for instance, it is not too difficult to recognise that not all styles are adaptable or suitable for everyone or every situation.

The copy is often a greatly inferior product altogether as demonstrated by those disposable items imported from the Far East whose quality is an illusion created by the prominently affixed fake designer label.

Piracy also robs the owner of the work of a means of livelihood as that may be the only source of income in most cases.

In the same vein, the public must be protected from inferior products that may be at times an eyesore, a health and safety hazard and in most cases a waste of scarce resources in repairs, maintenance and replacement due to flaws inherent in counterfeiting that arises from a desire to compromise on costs and, therefore, compromise quality.

It would be just as absurd for anyone to claim royalties and copyright of Wolfgang Amadeus Mozarts composition of the French melody "Ah! vous dirai-je, Maman" which is used in Twinkle Twinkle Little Star or Ba Ba Black Sheep.

Equally it would also be unusual for architects to claim ownership of generic designs of a two or three-bedroomed house that has been in the public domain to an extent that the basic arrangement cannot be ascribed to one single designer.

The architect is, however, entitled to copyright protection where unique features, styles and arrangements are expressed in the design that makes the composition of the finished product a unique product.

Architecture is a luxury good and unique designs are the preserve of the privileged few. Most houses in the Western world are built from a catalogue of off-the-shelf designs but the home owner may include some minor modifications.

These catalogued designs are the most commonly used types of pirate drawings and are characterised by alien features such as lavatories being located in the middle of the house where you cannot place a window and cannot avoid passing pipes through or under the floor slab.

It is important to note that although the copied layout is the starting point, it is not always true that the final product is a copy of the original and it is sometimes possible that only the basic ideas are relevant and legal under Zambian conditions and some poor drafts person has to remodel the whole scheme while the client proudly claims that they got the plan from the Internet.

It is not always affordable for everyone to hire a registered architect for all their building works and there are legal solutions for simple design problems such as through the Zambia Institute of Architects Small House Bureau, which offers simple ready made house plans to the general public.

We all know an acquaintance with some knowledge of some art and technical drawing or some smattering of computer aided design who would be very quick to relieve you of your money and give you a drawing of sorts commensurate with your prescribed budget.

The cost of these shortcuts only becomes apparent at construction as the limited knowledge and experience forces clients to make costly modifications as the patchwork design does not quite meet their requirements or aspirations.

Always consult a professional person for professional advice and request them to give you the bare essentials so as to help control costs.

There are many reports of people purchasing copies of house plans from business centres, reprographic outlets and even at the council offices with full knowledge that they are pirating some poor designers' livelihood unashamedly, but unknowingly they also copy the shortcomings of the building plans which may have been corrected or improved had the original designer been contacted.

It may even turn out that the legal plans when duplicated from the owner may be even cheaper than the hassle of the illegal ones which in almost all cases cannot be used without modifications.

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