A couple, the Ecklunds, approached Oakcraft Homes, a custom
home-builder. Based on their discussions, Oakcraft prepared a house
plan and gave a copy of the plan to the Ecklunds. The couple later
took that plan to a rival home builder, Toscana Developments.
Toscana used Oakcraft's house plan without confirming whether
the Ecklunds had the rights to that plan.
When Oakcraft discovered that Toscana had copied and modified
the original plan, it sued both Toscana and the Ecklunds.
The law of copyright in Canada is evolving to deal with changes
in technology, but there are still some cases where copyright
intersects with the age-old professions of architecture and
house-building. In the recent case of Oakcraft Homes Inc v. Ecklund, 2013
CanLII 41981 (ON SCSM), an Ontario court addressed the question
of who owns a house plan for copyright purposes.
Copyright is, at its most basic, simply the right of an author
to make copies of his or her original work. The Copyright
Act tells us that copyright subsists in every original
literary, dramatic, musical and artistic work. The term
"artistic work" includes paintings, drawings, maps,
charts, plans, photographs, engravings, sculptures, works of
artistic craftsmanship, and architectural works. The term
"architectural works" also has a specific meaning in the
Act: it means "any building or structure or any model of a
building or a structure." So we can be confident that, in
general, a house plan is subject to copyright protection in
I say "in general" because copyright law is clear that
in order to be subject to copyright protection, the house plan must
be original. "Originality" forms the foundation of
copyright. In order to engage copyright protection, a house plan
need not be unique in the sense that the design elements are new to
the world. But the design must be the product of skill (what the
court describes as "aptitude, proficiency, know-how,
knowledge, and practical experience") and judgment (described
as "wisdom, ability to assess or compare various possibilities
in order to choose from them"). In other words, the design
cannot be a purely mechanical exercise.
From this case, we can take away some important practical points
about copyright in house plans, and (perhaps more importantly) the
risk of infringement of copyright:
The court noted that: "Today, that art has become a
science by the use of computer aided design (CAD). Can it be said
that the use of CAD thereby converts ownership in the original work
to the computer software technician operating the machine or the
computer software programmer who programmed the CAD software? The
answer is obvious....NO!" Just because a house plan is
rendered with software, that does not defeat copyright that may
subsist in the plan.
In this case, Toscana said they were not aware that the plans
were subject to copyright. They had, apparently, not inquired in
any detail, and were, in the court's words "wilfully blind
to determining where the plans came from and who authored them.
They chose not to ask knowing that their potential customer was not
the author." Innocent infringement is still infringement and
according to the court: "The fact that a defendant may have no
knowledge that copyright subsists in a work or that the work was
unmarked does not constitute a valid defence."
As a result, the builder and the couple were jointly and
severally liable for the damages awarded for copyright
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 Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The Federal Court dismissed a motion by Apotex seeking particulars from Allergan's pleading relating to the prior art, inventive concept, promised utility and sound prediction of utility of the patents at issue.
Last year we saw the Canadian Courts release trademark decisions that granted a rare interlocutory injunction, issued jailed sentences for failure to comply with injunctive relief, grappled with trademark and internet issues...
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).