Australia: Building with tainted plans: not worth the risks of copyright infringement

Some cases make great vision for the evening news. In August, the media was fascinated by the spectacle of a Court ordered remodelling of a Cairns house found to infringe copyright. Dramatic as the decision was, it also highlights some principles that should be grasped when using building plans. Firstly, understand that original designs need not be novel for copyright to subsist and be protected. Next, be aware that a three dimensional building can infringe copyright in two dimensional plans and vice versa. Finally, avoid presenting a Court with a fait accompli, like a completed house that infringes copyright.

What is needed for originality?

In the Cairns case, the builders and house owners who were sued defended their actions on the basis that though the plans that they had used were found to be a substantial copy of earlier house plans (Earlier House Plans); the Earlier House Plans they said were not protected by copyright because they were simply a 'transcription' of a work that the plaintiff owner of an earlier house construction had prepared (Rough Ideas). They argued that the Earlier House Plans did not contribute to the underlying design concept of the earlier house and so were unoriginal.

To be protected by copyright, a work must be original; it needs "independent intellectual effort". But that does not require 'some new underlying idea'. Care is needed to avoid confusing the requirements for copyright with those for patents, where the invention needs to be 'novel' and exhibit an 'inventive step'. For copyright, originality requires only that a work originate with its author and not be copied from another work. This is not a significant hurdle and is the explanation why copyright (unlike patents) does not grant a monopoly – only the right to prohibit reproduction of a work.

The Rough Ideas of the owner of the earlier house contained "ideas" for the house, some specifications, four pages of draft floor plans and two photographs of houses illustrating the architectural style that appealed to the owner of the first house. From this start, and after more than 100 hours of working time, a designer engaged by the owner of the first house produced a comprehensive set of architectural and structural plans of 16 sheets. In effect, the argument of the parties sued was that these plans were not protected by copyright and therefore were free to be copied by them for the construction of the later house. By extension, anyone was free to reproduce the Earlier House Plans including by building a house.

The Court rejected this argument pointing to the obvious professional expertise exercised by the designer to draft the plans from which the earlier house could be constructed. Additionally, a visual comparison of the Rough Ideas with the Earlier House Plans demonstrated substantial differences. There were more plans in number and more information. The plans were clearly not a mere copy or transcription of the Rough Ideas. They were an original work in which copyright subsisted.

Can a three dimensional building infringe a two dimensional drawing?

The Copyright Act makes clear that this can be the case. In the Cairns case it was claimed that both the plans and the house of the parties sued infringed copyright in the Earlier House Plans. Once the Court found that the Earlier House Plans were protected by copyright, there was little doubt of what the outcome would be on infringement. The expert evidence of architects from both sides confirmed that the plans of the parties sued were "a substantial copy" of the Earlier House Plans. Visually, there were many points of similarity: lineal and spatial forms, plan notations, even an error that was replicated in the plans of the parties sued. As to whether the later house was a substantial copy of the Earlier House Plans, there was again little dispute. The evidence of one of the builders who was sued was that the house was built from the plans that were found to be a substantial copy of the Earlier House Plans.

It followed that both the plans and house of the parties sued reproduced and so were an infringement of the copyright of the Earlier House Plans. But by the time of the trial, construction of the exterior of the later house was finished and work was at the final fixed stage. Was it too late for an injunction to be imposed?

Once construction of a building has commenced, is it too late for a Court to order its demolition or alteration?

Under English law it would be too late, but not in Australia. There is no doubt, as indicated by the decision in the Cairns case, that a Court has power to order the demolition or alteration of a building constructed in breach of another's rights. But these orders are made only when warranted. This requires consideration of whether the construction occurred in circumstances of good faith, with ignorance of the possible infringement or, whether the construction was with full knowledge that it invaded another's rights and continued nonetheless.

The Cairns case was closer to the second of these extremes. The parties sued were found to have commenced construction aware that the owner of the earlier house had objections; the builders sued had initially agreed to provide a copy of the plans for the later house to the owner of the earlier house but failed to do so, and construction of the later house continued after receipt of correspondence from the solicitors for the owner of the earlier house and commencement of the Supreme Court action. The Court concluded that an injunction in these circumstances was not oppressive when the parties knew of the risks and acted as they did. However, demolition was not warranted as it was the identical exterior of the later house that needed alteration, so the Court ordered the remodelling that was played out on our screens.

The prime lesson of the Cairns case is that building with plans that could infringe copyright is a high risk venture. The remodelling of the later house is not an end to the pain for the builders and owners of that house. Damages or an account of profits and legal costs are still for determination by the Court.

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.

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