ASSIGNMENT 4 GGkomG

ARCHITECTURAL COPY RIGHT

PROTECTION UNDER THE AMBIT OF COPYRIGHT

ACT

In general, any original work made by a person is eligible

for copyright protection. Originality refers to the fact that an

author must have created the work through the application of

the author's own creativity and labour. -

In addition, such work must have been reduced to a

material form. Copyright comes into existence as soon as a

work is created and no formality is required to be completed for

acquiring copyright, although it is advised that the

author/owner of the copyright gets their work registered to

make sure they can enforce the rights conferred by the

Copyright Law, should their copyright be infringed.

Different countries have different laws pertaining to copyright

of artistic works. -

Indian law provides protection to the architectural works under

the uniform copyright law. Section 13 of the Indian Copyright

Act, 1957 numerates the types of artistic works that are eligible

for copyright protection. -

A CCO RD IN G T O C OPY RI GH T ACT 19 57 -

Section 2(b) "work of architecture" means any building or

structure having an artistic character or design, or any model

for such building or structure;

Section 2(c) "artistic work" means—

(i) a painting, a sculpture, a drawing (including a diagram,

map, chart or plan), an engraving or a photograph, whether or

not any such work possesses artistic quality;

a work of architecture; and

any other work of artistic craftsmanship.

Copyright registra tion system. Also, being a signatory to Berne

Convention as well as Universal Copyright Convention, works

protected in other Berne signatory countries will automatically

be protected in India without the need for registration.

Architecture may be defined as the "art of designing and

constructing buildings", and therefore has both functional as

well as artistic attributes. Section 57 of the Indian Copyright

Act also takes into consideration the moral rights of the creator

of the artistic work as well as the rights of integrity and

attribution of the author. The Indian copyright law has also

widened its scope to allow protection to the architectural design

of commercial buildings.

1. CONSTRUCTING A SUBSTANTIALLY SIMILAR

BUILDING WITHOUT PERMISSION MAY INFRINGE THE

COPYRIGHT OWNER'S RIGHTS.

In 1990, Congress passed the Architectural Works

Copyright Protection Act which explicitly provides copyright

protection to original designs of architecture in virtually any

form, including architectural plans, drawings and buildings

themselves. This means that a builder may be liable for

copyright infringement if the building itself infringes another's

plans or building regardless of whether the plans themselves

were copied. Therefore, builders, architects and owners should

not attempt to mimic other architectural works in any form.

2. MAKING MINOR CHANGES TO PLANS DOES NOT

NECESSARILY AVOID COPYRIGHT INFRINGEMENT.

Courts usually apply one of two tests to determine

whether an architectural work infringes a copyright owner's

original work. Under each of these tests, the court will attempt

to determine whether the alleged infringing work is

"substantially similar" to the copyrighted work. Under the first

test, often called the "total look and feel" test or "total concept

and feel" test, the works are compared in their entireties by

"ordinary observers" to determine whether they are

substantially similar. Therefore, minor changes that do not

change the total look and feel of the work may infringe a

copyright owner's rights. Under the second test, often called the

"filtration" test, the court filters out the unoriginal portions of

the work to determine whether they are substantially similar.

Under these tests, simply changing standard functional features,

such as windows, doors or other staple building components is

no defense to a copyright infringement claim.

3. INNOCENT INFRINGEMENT IS NOT A DEFENSE TO

COPYRIGHT INFRINGEMENT. -

To prevail in a copyright infringement lawsuit, a

copyright owner does not have to show an intent to copy or

even actual copying. Instead, the copyright owner merely needs

to establish that the alleged infringer had access to the

copyrighted work and the alleged infringing work is

substantially similar to the copyrighted work. Consequently, a

builder or owner may be liable for copyright infringement even

if they did not intentionally copy a protected architectural

work.

4. THE LAC K OF A C OP YRIGHT NOTICE MAY N OT

PREVENT A SUCCESSFUL SUIT FOR COPYRIGHT

INFRINGEMENT. -

Although many individuals believe the "©" copyright

notice is necessary for copyright protection, this is generally

untrue. For works published after March 1, 1989, a copyright

notice is not required to assert a copyright infringement

lawsuit. Therefore, builders, architects and owners should

assume that all architectural works are protected under

copyright law regardless of whether the author includes a

copyright notice.

5. COPYRIGHT INFRINGEMENT CARRIES THE RISK OF

ENHANCED DAMAGES, ATTORNEYS' FEES, AND COURT

COSTS. -

Under certain circumstance s, the copyright owner may be

entitled to receive statutory damages, attorneys' fees and court

costs from an infringer. Statutory damages means that the

copyright owner does not have to prove the number of actual

damages it suffered as a result of the infringement. Instead, the

court may award up to $150,000.00 per infringement. In other

words, a builder might be liable to a copyright owner up to

owner's rights. In addition to statutory damages, the court may

require the infringer to pay court costs and the copyright

owner's attorneys' fees.

6. ARCHITECTS AND DESIGNERS SHOULD TIMELY

REGISTER THEIR COPYRIGHTS TO OBTAIN ENHANCED

REMEDIES AGAINST POTENTIAL INFRINGERS.

As stated in the previous section, statutory damages and

attorneys' fees may be available to copyright owners who

register their copyrights in a timely fashion. To receive these

enhanced remedies, the owner's copyrights must be registered

before the infringement is commenced by the infringer or, in

the case of published works, within three (3) months of the first

publication of the architectural work. Registering a copyright

with the United States Copyright Office is simple, relatively

inexpensive and even can be submitted electronically.

7. IF YOU ARE GIVEN PLANS BY OTHERS, ENSURE

THAT YOU HAVE THE RIGHT TO CONSTRUCT, COPY

AND/OR MODIFY THOSE PLANS BEFORE USING THEM.

Owners often solicit designs from multiple architects or

designers during the design and bid phases of the project,

especially design-build projects. Some owners believe they

have the right to share designs obtained through the

design/bidding process with other competitive bidders. This can

be problematic depending on the contractual relationship

between the owner and the original designer. If the original

designer retained all copyrights in the original design, an

unsuspecting subsequent designer or contractor may infringe

the copyrights of the original designer by refining or

constructing a project that is substantially similar to the

original design. Therefore, whenever an owner, construction

manager or other party provides you with architectural plans,

you should ensure that you have the right to construct copy

and/or modify those plans before using them.

8. IF YOU ACCEPT PLANS FROM OTHERS, INSIST ON

INDEMNIFICATION FOR ANY COPYRIGHT

-INFRINGEMENT ARISING FROM THOSE PLANS.

consequences can occur when parties share construction plans

amongst each other. Therefore, if you receive construction

plans from another party and are asked to construct, modify or

otherwise use those plans, you should require the party

providing those plans to indemnify you for any copyright

infringement claims that arise therefrom. The written

indemnification provision also should include indemnification

for any other forms of intellectual property or unfair

competition claims that may arise from your use of those plans

and should include a duty to defend any related litigation in

addition to the duty to indemnify.

9. THE ORIGINAL ARCHITECT OR DESIGNER REMAINS

THE OWNER OF ANY COPYRIGHTS IN THE

ARCHITECTURAL DESIGN, EVEN IF THE CONTRACTOR

OR OWNER PAID FOR THE DESIGN.

In many construction projects, the owner, construction manager

or contractor will contract with an architect or designer to

design the project. Regardless of payment, if the contract does

not state otherwise, the original architect or designer retains

ownership of the copyrights and the purchaser merely obtains a

non-exclusive license to use the plans for that particular

construction project. This means that the owner and/or

contractor do not necessarily have the right to use the

purchased plans for any other projects and do not have the right

to prevent the original designer from selling those same plans

to other owners and/or contractors. Accordingly, owners and/or

contractors should insist that their design contracts contain a

written assignment of all copyrights and other intellectual

property that the architect or designer owns in the plans to

ensure that the architect or designer does not retain any

intellectual property rights in the design which could create

issues down the road. Alternatively, an owner or contractor

should obtain written permission from the original architect or

designer before reusing previously-purchased plans on other

projects. If the design's uniqueness is important to the owner, it

should also insist that its license be exclusive. Otherwise, an

architect could resell the design to others.

COPYRIGHT INFRINGEMENT.

Many construction professionals mistakenly believe that they

have insurance coverage for virtually any type of claim that

may arise in a construction project. However, most commercial

general liability insurance policies do not cover architectural

copyright infringement. As briefly discussed in this article,

copyright infringement litigation can be very expensive and

potentially devastating to construction companies. Therefore,

you should consult with your insurance agent to ensure that

your policy covers architectural copyright infringement. In

some instances, it may be covered by professional liability

insurance. In other instances, you may be required to purchase

additional coverage. In any event, it is better to be safe than

sorry.

REFERENCES:

http://www.copyright.gov/ .

https://www.copyright.gov.in/documents/handbook.html