The subject of copyright isn’t an area we automatically connect with building our dream home or new investment.

Like every profession that works with artistic and intellectual property though, house and business plans also are privy to copyright.

If someone has put the time and work into designing something, copyright becomes applicable. How this is handled and ownership to copyright of building plans can vary depending on your contractual agreements. It’s best to ensure you have this area fully covered and clear from the start of a project to avoid any long term headaches or costly legal issues arising.

Architects, architectural designers, draftspeople and building services may handle this area differently. This is also a factor that varies depending on if your plans are being drawn up specifically for you or from pre-drawn plans (as is often used in project homes, estates, apartments and townhouses).

It is imperative for the person engaging these services to look into how plans are copyrighted, as well as ensuring that they are not impinging on anyone else’s copyrights.

So what are the laws? How do they work?

The Australian Copyright Council states the following:

“House plans, including those produced by project home companies, are protected by copyright.

Generally, a person who commissions someone to draw up a house plan will have an implied licence to construct a building based on the plan.

Ideas, styles and techniques are not protected by copyright, it is the form in which a particular plan expresses an idea or style that is protected.”

But what does this actually mean?

1.      That any house or commercial business plan is protected by law and that the copyright will be applied automatically to the person who creates the work, unless otherwise negotiated.
2.       In theory, the person who asks (commissions) someone to draw plans for their home or commercial property has an “implied” licence to build that plan. This can be a grey area though. It’s really important to clarify this with your design and building team from the outset, and read and fully understand the fine print of any contract before signing the dotted line.
3.      An idea, particular style or technique is open for use by anyone. This may be having a style of large arched windows overlooking an alfresco tiled patio with a water feature, which many homes contain, and copyright would be unfair to the many who require usage of this styling.  If someone has drawn a detailed plan of this expressed in a certain form, this is subject to copyright. In simpler terms, anyone can draw an apple, but to directly copy someone else’s style of a drawing of an apple can be a breach of copyright laws. Taking inspiration from existing styles is common and widespread, it’s just important to ensure that your plans express the inspiration in a way that is unique to your design, unless you have permission to do otherwise.

There are of course only so many ideas and combinations of elements that can be expressed over time without some form of repetition occurring, which is why defining the line between explicit copyright and incidental similarity need to be well considered.

In the majority of cases, the person who created your house or commercial building plans will have automatic copyright to them even if they haven’t added a © symbol to them. This isn’t a necessary element under Australian law because the original creator of any creative or artistic work automatically holds the copyright, unless a legal agreement has been drawn up to designate copyright holding and terms with the original copyright owner. For a basic overview on general copyright laws within Australia, the WA State Library has compiled a brief guide available here.

At the same time, it wouldn’t be possible or practical for homes and commercial buildings to be built if there was no ability to use the plans that have been created by someone for that purpose. This means that in the majority of cases, if someone has drawn up plans for you for the purpose of building something, that generally speaking, you will have permission, or licence, to use these plans for that purpose.

There are always exceptions to this idea, and people have found themselves in legal disputes in this area for a variety of reasons. Implied use of plans does not guarantee anything legally, which is why with any important life decisions, the old adage to get it in writing applies here too!

It gets more interesting and the area even more tricky when someone draws up an original plan and then takes this to a professional. The purpose of creating a solid plan or more accurate design is most likely the goal here and the original creator may not have the skill level to do this.

Does this mean the original creator holds a copyright of the plan after the professional they hire works on it?

In some ways yes. The original creator may have an interest in the copyright. If you have a very particular, innovative or specific design that you require a professional to complete, it is wise to agree on terms before undertaking your project.

Why? Because Australian law states that unless explicitly defined in writing or other legally sound agreement, that the copyright holder of your plans is the person who creates the actual plan that a building is built upon, but does take into account the contributions made by preliminary creative input of others.

This may apply if someone else wanted to use a plan that both you and a professional have agreed shares copyright,  that they would need to seek permission from both parties to obtain rights to do so.

The ACC also says “ if the plan incorporates the essential features of your sketch, you may have underlying rights in the builder’s plan, since copying the builder’s plan will indirectly reproduce your plan. In these cases, someone else who uses the plan (such as another client of the professional) might need permission from both you and the builder.

Of course, if your sketch incorporates essential or distinctive elements of another person’s sketch, plan or house, you are likely to need permission from the copyright owner both to include those elements in your sketch and to authorise the builder to reproduce it.”

So once again, it’s important to make sure everyone is on the same page and in agreeance to who owns what before a project gets underway.

This saves any future headaches that may arise due to different parties input, or with future use of the plans drawn up.

DN Studio are able to discuss this with you in more detail if you have any questions or concerns in this area.

There is also a fantastic educational handout available from the ACC that you can download here, as well as lots more information and case studies that may add to your knowledge in this area. This is current as of the time of writing this article (July 2020), but please ensure that you access the most updated information available on their site, as it can change from time to time.

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