Canada: Copyright In The Structural Elements Of A Building?

Last Updated: September 25 2018
Article by John McKeown

A recent decision of the Federal Court has confirmed that copyright subsisted in an architectural work consisting of a steel structure relating to a sports complex and the plans for its construction. A lengthy judgment was issued initially in French and an official English translation has recently become available.

The Facts

The plaintiff specializes in the design and construction of steel structures. It claimed that it created plans for the steel structure of a sports complex consisting of an indoor soccer facility in 2009. It asserted that the plans were not only original but innovative when compared with what was on the market.

The structure designed by the plaintiff resulted from a specific combination of known concepts that provided a distinctive aesthetic appeal to the structure above the playing surface. The structure consisted of two main elements: arched triangular master trusses, the primary element, and Gerber secondary beams that highlighted the master trusses. To a lesser degree the plaintiff's design also included double columns used to support the master trusses.

The defendant school board decided to build a new and modern indoor soccer stadium. They retained the services of an engineering firm, an architectural firm and a general contractor. At an early stage representatives of the school board and the engineering firm visited several sports complexes including the indoor soccer facility designed by the plaintiff. During the visit handwritten notes and drawings were prepared and photographs were taken.

After the visit plans were developed a request for proposals was published. When the plaintiff reviewed the request for proposals and the plans and specifications, they advised the general contractors who had bid on the project of the existence of its copyright and invited them to subcontract with it on the design and construction of the steel structure of the complex. The defendant engineering firm responded by asserting they did not infringe and construction proceeded with no involvement of the plaintiff.

The Action

Once the defendant's facility was completed the plaintiff commenced an action for copyright infringement. The plaintiff alleged infringement of the copyright in the plans relating to their initial structure and the resultant architectural work consisting of the completed structure. The defendants asserted that copyright did not subsist and denied infringement.

The Subsistence of Copyright

The plaintiff said that while the elements of its design were not new, that the design as a whole was original because of the combination of those elements to create a structure for a sports complex that met the needs of users, particularly in the clearance needed for soccer, besides being more economical and visually appealing.

After a lengthy trial the judge confirmed that the combination of known elements can be protected by copyright if the arrangement produced by the author stemmed from the exercise of skill and judgment of the author. What must be considered is the overall arrangement that the author had produced.

The judge found that the plaintiff's design stood out from the competition and created a niche in the competitive market with the primary objective of offering a distinctive "look" that clearly met the safety, performance and sustainability requirements specific to structural engineering. That objective could only have been achieved through exercising the author's skill not through a simple mechanical application of knowledge and experience. The judge also referred to a previous decision which found that structural engineers can be architectural specialists in so far as their work involved the design and construction of a structural work.

Infringement

The judge applied well-established law to the effect that to show infringement, if there is no direct evidence, which is often impossible to obtain, the owner of copyright must establish that the alleged infringer had access to the work and there are similarities between the plaintiff's work and the infringing work. Once the plaintiff satisfies this burden the burden of proof shifts to the infringer who, to avoid a finding of infringement, must show that the similarities result from independent creation.

Infringement was not limited to creation of an exact copy of the work in issue and reproduction of a substantial or important part of the work was sufficient to establish infringement. To determine what constitutes a substantial part of the work consideration must be given to the originality of the work sought to be protected. In general, a substantial part of the work is that part which represents a substantial portion of the author's skill and judgment expressed in the work. The test is qualitative not quantitative and a holistic approach must be applied. The cumulative effect of the features copied from the work must be considered to determine whether those features amount to a substantial part of the author's skill and judgment in the work as a whole.

In this case there were no serious issues regarding access and the defendant school board also requested that master trusses, like the ones in the plaintiff's design, be included in its facility. After a detailed review of the evidence and hearing competing experts the judge concluded that the look of the plaintiff's structure had been reproduced. The judge said that in the field of architectural design there may be a fine line between what constitutes an infringement and what is not protected by copyright due to the physical, economical and legal constraints, which can significantly limit the designers' flexibility and result in repetition of style, form or dimension of prior works. Here the line had been crossed.

The judge also said that plans can be indirectly infringed by reproducing a three-dimensional object created from them and vice versa.

The Obligations of the Specific Defendants

Copyright includes the sole right to reproduce the work or any substantial part of it in any material form whatever. It also gives the owner of the copyright the sole right to authorize such acts.

Here the judge found that the defendant engineering firm employed by the defendant school board infringed the plaintiff's copyright by reproducing a substantial part of the structural plans and the structure because it approved and allowed the construction of the complex and supervised work to ensure compliance with those plans.

The defendant construction company was also similarly responsible for the reproduction of the plans and structure since it reproduced a substantial part thereof.

The defendant architectural firm was also responsible since it was involved in the design and coordination of the development of the infringing structure.

Finally the defendant school board was responsible for the activities of the other defendants it contracted with since it authorized their acts of infringement.

Damages

Under the Copyright Act an infringer is liable to pay damages to the owner of the infringed copyright and such part of the profits that the infringer has made from the infringement not taken into account in calculating the damages, as the court sees fit. The plaintiff sought the loss of profit it would have made from the development of the structure. Conflicting expert reports were submitted. After considering all the evidence the judge found that the plaintiff was entitled to receive the lost profits relating to the complex in the sum of $722,996 plus its legal costs.

Conclusion

In the field of architectural design a significant portion of the structural elements will be similar from project to project and not protected by copyright.  However, as this decision shows, if the use of such elements gives a distinctive aesthetic appeal to the structure as a whole the resulting architectural work and it's plans may be protected by 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.

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