Australia: Plans and Drawings, Copyright and Implied Licences

Last Updated: 1 March 2006
Article by Peter Knight

Key Points

  • If you are commissioned to create copyright material, even in the absence of a contract, it is assumed that there is an implied licence given to the person who commissioned the material to use it for the purposes made known at the time it was commissioned. Copyright remains with the person who created it, in the absence of a written assignment, signed by the creator.
  • Copyright infringement often turns on whether a substantial part of the work has been taken.

It's not unusual for the copyright in commissioned works to remain with the creator; the person who commissioned it is usually assumed to have an implied licence to use the work. A common example of this is in the construction industry, where architects are often part of the development consortium and provide the plans for the project without charging professional fees. But is this assumption wrong? A recent decision of the full Federal Court of Australia suggests it is, with troubling implications not only for the construction industry but also anyone who commissions work.


The decision in Parramatta Design & Developments Pty Ltd v Concrete Pty Ltd [2005] FCAFC 138 arose from a falling out among property developers. The owner of the plaintiff architectural firm, a Mr Fares, formed a company, Landmark Building Developments, with a solicitor Mr Barrak. Landmark and other company, Toyama, bought a property in Nelson Bay for $565,000.

For the purpose of obtaining planning approval, Parramatta Design created architectural plans for a 14-unit development of the property. There was no agreement for any specific payment for these plans (although Parramatta Design had been paid $27,000 for a previous set of plans for a smaller development for the same site) – the parties were, in effect, co-venturers.

Planning approval having been obtained for the 14-unit development specified in the plans, the parties fell out, as a consequence of which Toyama applied for and obtained orders in the Supreme Court for the appointment of trustees, in whom the property was vested for the purposes of sale. The trustees were unclear about their rights over the plans created by Parramatta Design, and Parramatta Design had made clear to the trustees its view that the plans, in which copyright undoubtedly belonged to it, were not available for use by any third party. The trustees made clear to the purchaser in due course that a dispute existed as to "the existence of any licence to make use of the copyright in those plans …" and accordingly gave no warranty in that regard.

The property was sold in due course to another developer, Concrete, for $2,760,000. Concrete argued that, notwithstanding that the claim of Parramatta Design had been brought to its attention, it paid the price it did in the belief that Parramatta Design's claim was unjustified, and that a licence to use the plans was included in the price it paid.

The trial judge was most dissatisfied with the evidence of the architect, Mr Fares, and the solicitor, Mr Barrak, that was to the effect that no licence was granted to use the plans, even though the development approval for the land was obtained in reliance upon them, and that Parramatta Design should be paid a further fee for such licence, in addition to the substantial profit they had made upon the sale of the land to Concrete, with the development approval.

The trial judge concluded:

  • there was an implied licence granted by the architect to Landmark and Toyama to use the plans to construct the buildings for which development approval was obtained; and
  • even though the trustees did not necessarily have the benefit of that licence (after all, they were not entitled to use the plans to carry out the development, they were only empowered to sell the land), the trustees "stood in the shoes" of the licensee so as to assign it. Alternatively, the implied licence followed the development approval as the development approval followed the land.

Implied licences and the contract between the architect and developer

In a somewhat surprising decision, the Full Court disagreed with the trial judge on just about every issue.

First, the Full Court assumed that the express terms of the contract between the architect and Landmark for the creation of the plans had to be known in order to decide the question before it. This is strange because there is no reason why the bare permission to use the plans should be found in a contract at all, provided it does not contradict the express terms of a contract between the parties. There is very substantial authority for the existence of an implied licence when an architect is commissioned to create plans for construction, in the absence of any express or implied term in that regard in the contract between the architect and the client (even if there is one). It was common ground that the express contract between the parties, if there was one, was not decisive on this issue.

Furthermore, the Full Court was influenced by the fact that there had been no payment of the architect in this case: "If the architect has not been paid for the work or has only been paid a nominal fee, there is no reason why the client should be allowed to take the full benefit of that work". However, this is plainly inconsistent with well-regarded and long-standing authority, such as Ng v Clyde Securities Ltd [1976] 1 NSWLR 443, in which the failure to pay the architect's fees did not terminate the implied licence to construct the building in accordance with the plans supplied. Anyway, in this case, the architect profited handsomely from the improvement in the value of the land with the benefit of the development approval which, while not exactly as it may have intended in the first place, was of the same kind of exploitation.

What about the scope of the permission? It is well established that the scope of the permission granted may be impliedly extended to acts beyond those anticipated by the parties to the transaction. This may occur when commercial necessity requires such a licence to make use of goods supplied.

The Full Court also seems to have suggested that there had to be an implied right to assign the benefit of the implied licence. Under the general law, a licence is assignable, unless there is an agreement, express or implied, to the contrary or if the licence is tied to a contract for the provision of personal services. In Ng v Clyde Securities Ltd, for example, the benefit of an implied licence in architects' drawings commissioned by a property developer was transferred under the terms of a mortgage to the mortgagee in possession of the property, so that the mortgagee, or its assignee, could complete the construction of a building in accordance with the drawings.

The Full Court was on somewhat firmer ground when it observed that the trustees for sale did not purport (and made this clear) to assign the benefit of a licence in the architect's plans, and indeed the right to do so was not necessarily vested in them by the orders of the Supreme Court appointing them. The trial judge's conclusion that the relevant licence could exist and be transferred independently was criticised by the Court, suggesting that such an implied licence must be one given "to the world at large". However, there seems no reason, in principle, why the trial judge's reasoning – that the land was assigned with the development approval, and the development approval comprised the architects' plans (upon which it is based) – should be found to be incorrect. The licence granted was not "to the world at large", but to the holder of the development approval only, and in the circumstances could not be terminated.

Furthermore, the Court said, "Even if, by some new doctrine, there were such a licence, in the absence of any consid-eration or preclusion, it would be revokable at will". Even an implied copyright licence, while terminable at will, will need reasonable notice to be given, and that such reasonable notice might be very long indeed. For example, in Bourke v Filmways Australasian Distributors Pty Ltd (unrep, 9/10/1979, SC NSW), an author who had been engaged to create a scenario for a film was found to be unable to terminate the licence given for the general distribution and public screening of the film, notwithstanding that a dispute had arisen regarding the payment of his fees. The same was found in respect of architect's plans in Ng v Clyde Securities.

So what do you do if you're commissioning work?

For the construction industry, this is a surprising and troubling decision. It's not uncommon for architects to be part of a development consortium, and for their plans to be used in the project without the payment of a specific professional fee. If the Full Court is right, the consortium might not have an implied licence if the fees are not paid. The solution is to ensure that there is a written agreement about the use of the plans by the developers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.