Canada: What You Don't Know About Copyright In Buildings Could Cost You, So Here's What You Need To Know

Last Updated: January 31 2018
Article by Christie Bates

What You Don't Know About Copyright in Buildings Could Cost You, So Here's What You Need To Know:

The Lainco case, which awarded nearly $750,000 for the infringement of copyright in an architectural work, is a warning to those involved in architectural design, engineering, and the construction fields that copying a building design can lead to unpleasant consequences.1

As fully discussed in our earlier bulletin The Kick That Got The Ball Rolling: Copyright in Architectural Works is Gaining Traction in Canada, Lainco signals that the courts are prepared to award significant damages against multiple parties for the breach of copyright in an architectural work (in that case, a soccer stadium). While the statutory requirements to obtain copyright in architectural works were made less onerous in 1988, it is only in the past few years that the trend in enforcing rights has begun to increase.2 Lainco serves as a stark reminder of the importance of staying abreast of developments in the law, and not simply relying on past practice.

Key players therefore ought to revisit their agreements to better understand who owns the copyright, what restrictions exist on the copyright, and to create a framework for the management of copyright in architectural works and the related artistic works in the form of the plans and drawings. The following lessons, in conjunction with counsel's advice, can help those in the building professions stay out of hot water.

The Basics – Copyright in Architectural Works:

  • Copyright arises automatically in a person's original fixed expression (i.e. the idea must exist in a tangible form and cannot simply exist in a person's mind). Originality requires that the author exercise "more than a trivial amount of skill and judgment."3 By skill, the use of one's knowledge, a developed aptitude or a practised ability in production must be put forth; and, by judgment, the use of one's capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work must be shown.
  • The recognized categories of copyrightable works include, but are not limited to, literary works and artistic works, with architectural works being a subset of the latter. An architect may have copyright in building plans as a "literary work" but also in the design of the building as an "artistic work" once it is actually built. Copyright lasts for the life of the author plus 50 years.
  • It is not necessary to mark the copyrighted work with the word "copyright" or adopt the © symbol to gain protection. In fact, the courts have specifically held that the failure to mark ownership on building plans does not defeat the right to claim copyright.4 Section 34.1(1)(a) of the Copyright Act (the "Act") creates a presumption in favour of the existence of copyright and the author's ownership, thus placing the burden on the defendant to prove otherwise (for example, by proving insufficient originality of the work).
  • Copyright is infringed when a work in its entirety, or a substantial portion of it, is reproduced without the authorisation of the owner. Therefore, making minor changes to another's building design does not necessarily avoid copyright infringement.5 Relevant questions that the courts consider include: Are the buildings substantially similar in feel and look? What was the source of inspiration for the design? Were sites visited, photos taken, or written works consulted? Are there heritage designations at play, or other zoning bylaws which may restrict variations and encourage mimic architecture?6 Of note, the Act contains provisions that limit the circumstances in which photos can be taken or drawings made of architectural works, notably, when they are being used as an architectural drawing or plan.7 In circumstances where the skeleton of the building is visible (as was the case got the Lainco soccer stadium), taking photographs should be approached with caution.
  • The plethora of architectural works can make it difficult to trace the identity of the author or owner of the copyright, as does the growing rate at which buildings are being erected. While works can be registered on the Canadian Intellectual Property Office ("CIPO") database, few authors or owners register their copyright, making it even more challenging to determine to whom the copyright belongs.

Remember the Default Position – Who owns the Copyright in Architectural Works?:

  • The default position at law is that it is the architect, and not the builder, who has a primary claim to ownership of the copyright given that the copyright vests in the person who creates the drawings (the original fixed expression) giving rise to the building.8
  • This default position of ownership changes if the architect is an employee (as opposed to an independent contractor), in which case the employer of the architect owns the rights in the work. Section 13(3) of the Act provides that if the work is created in the course of employment under a contract of service, and absent any agreement to the contrary, the employer will be the owner of the copyright in the work created by the employee without the need for a formal assignment.
  • Irrespective of whether the author is an employee, the moral rights in the work always remain with the author.9 Moral rights encompass the author's right to maintain the integrity of the work and the right to be cited as its author. Moral rights cannot be assigned, they can at most be waived by the author; however, such waiver must be explicit in an agreement in order for it to be enforceable.10

Things to Contemplate for the Assignment or Licensing of Copyright:

  • Architects may license or assign their copyright through an agreement. A license allows for a restrictable use of the copyrighted work and does not involve a transfer of ownership, whereas an assignment transfers ownership and all accompanying rights from the assignor to the assignee (excluding moral rights which remain with the author unless they are waived).
  • Pursuant to s.13(4) of the Act, the assignment must be in writing and signed by the author in order for it to be considered legally valid. Unlike other areas of the law where consent can be implied, the absence of a signature has been found to be fatal because the Act specifies a signature in writing is required.11 Consideration, even if it is nominal, must be exchanged in order for the agreement to be valid.
  • If you are entering a license agreement, consider what limitations you might want to implement: Do you want the rights to revert back to you if the work is not used? Do you want to restrict the number of reproductions? Or limit the geographic scope in which the work can be reproduced? Do you want to maintain your rights to pursue an action in the event of third-party infringement?
  • To avoid future costly ambiguities, specify who can apply for copyright registration in other countries, and who has the right to sue, settle and release others from claims of copyright infringement. In the event of a buyout, does the author's consent transfer to the new copyright owner?
  • Ensure that there are strong indemnification provisions for any copyright infringement arising from the unauthorised reproduction or use of the work.
  • Include a governing law clause, bearing in mind that the rights of the author are more fervently protected in Quebec (as evinced by their increased propensity to award punitive damages for infringement). If the selected governing law is somewhere in the US, be cautioned that moral rights are not recognised there and thus are unenforceable.

Tips of the Trade – Copyright Peculiarities:

  • One oddity of the Act is s.14(1), which specifies that if the author is the first owner of copyright, the rights will automatically revert to the author's estate 25 years after the author dies, regardless of any agreement to the contrary (there are limited exceptions in instances of collective works or licenses to publish works).
  • Further complications arise if the work qualifies as a "work of joint authorship" (author contributions are not distinguishable from one another's) or a "collective work" (author contributions are distinguishable). If the work was jointly authored, there are restrictions on licensing as the authors are considered to be tenants in common.12 One example of a restriction is that both joint authors must consent in order to assign or license the work.

What You Might Do When You Smell Something Fishy, and What Could Minimize Damages:

  • If you realise your building plans looks suspiciously familiar with another's, discuss with your lawyer as to whether steps should be taken to obtain a license or assignment. Tackling the potential infringement head on will be looked upon favourably in the event the matter goes to court. Should a settlement be reached, obtain proof of payment and a written declaration that the use is authorised.
  • Do not assume you can escape liability because you were not directly involved in the infringement – in the Lainco decision, a school board, architectural firm, engineering firm and general contractor were all held liable for copying the structural design of a neighbouring soccer complex.
  • Ensure your commercial general liability insurance policies cover architectural copyright infringement, or review your professional liability insurance to see if there is relevant coverage.
  • An inference of copying can be displaced by evidence of independent creation, but not if the copyrighted work was registered.13 It is important to consult with counsel to see whether this applies to your situation, and to also consider the potential implications of s.40 of the Act that relate to injunctions.

How to Ensure Your Copyright Is Protected:

  • If you are an employee and the author of a work but wish to maintain ownership, carefully review your employment agreement and explain your daily responsibilities to counsel to determine whether a separate agreement is needed to clarify who owns the work.
  • In the event you want to license your work, instruct your lawyer to draft an as narrow license as possible and avoid assignments. If an assignment is the most appropriate option, insist that you not waive your moral rights.
  • Register your copyright with CIPO, as well as all assignment and licenses – it costs little over $50 and creates evidentiary presumptions in your favour.
  • Document when people come to visit your building, take photographs or ask for plans.
  • Send demand letters and keep a paper trail of your efforts (this tactic seems to have benefited the plaintiff in the Lainco decision).

This article is meant to be a jumping off point for discussions with counsel, and should not be acted upon before your lawyer can assess the bigger picture. Time will tell as to whether infringement cases for copyright in architectural work will pick up steam, but, in the interim, dusting off your tried and true precedents and having counsel review them is a sensible step towards risk mitigation.


[1] Lainco inc. c. Commission scolaire des Bois-Francs, 2017 CF 825.

[2]To name a few: Construction Denis Desjardins inc. c. Jeanson , 2010 QCCA 1287 ; Evans and Hong v. Upward Construction, 2017 BCPC 247; Oakcraft Homes Inc v. Ecklund, 2013 CanLII 41981; Ankenman Associates Architects Inc v. 0981478 B.C. Ltd., 2017 BCSC 333.

[3] CCH Canadian Ltd. v. The Law Society of Upper Canada, 2004 SCC 13 at para 16.

[4] Oakcraft Homes Inc v. Ecklund, 2013 CanLII 41981.

[5] In the case of Webb & Knapp v. Edmonton (City), [1970] S.C.R. 588 (S.C.C.) at para. 43, Justice Hall held that using architectural plans as a basis to draft new plans when the new plans are only a modified reproduction of a substantial part of the original plans constitute copyright infringement. Note, this decision predates the 1988 amendments to the Copyright Act and therefore adapts a more rigorous assessment as a higher bar for "artistic: architectural works was in place.

[6] In MacNutt v. Acadia University, 2016 NSSC 160, the court, in assessing whether there were similarities between the buildings, considered whether they were as a consequence of the mimic architecture required by Acadia and the Town of Wolfville.

[7] S.32.2(1)(b(i) of the Copyright Act (the "Act") R.S.C., 1985, c. C-42.

[8] Hay v. Sloan, [1957] O.W.N. 445, at para 7.

[9] S.14.1(2) of the Act.

[10] S.14.1 of the Act.

[11] Tremblay v. Orio Canada Inc., 2013 FC 109 and s. 13(4) of the Act.

[12] Lauri v Renaud, [1892] 3 Ch. 402 (Eng. C.A.).

[13] S. 39 of the Act.

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2018

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.

Christie Bates
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Canada LLP
Bereskin & Parr LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Canada LLP
Bereskin & Parr LLP
Related Articles
Related Video
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions