Beware of copyright infringement! ...
Floor plans and building designs are readily available from many sources. But many people fail to realise that using
these designs without the owner's permission can lead to serious legal problems...
Building homes in Australia is big business. Between 1998 and 1999, 103,164 new homes were commenced with 99,345 completed. Open any weekend newspaper across the country and real estate makes up the majority of the classified advertisements.
Full colour pictures walk us through homes, highlighting the exceptional design features. We can linger over floor plans at our leisure, adapting our present lifestyle to fit the room sizes on the page.
Thousands of people flock to display centres and show homes to see what's on offer. Brochures containing floor plans,
elevation designs and the latest trends are readily available.
But many people in the market for a new home fail to understand that these house plans, blueprints and floor layouts belong
to the builder or the architect.
Under the Copyright Act of 1968 the designs cannot be copied or used in any way without the owner's consent.
Material that is protected by the Copyright Act includes drawings, sketches and plans of houses. It's not necessary
to register the documents; copyright protection is automatic.
Dale Alcock from Dale Alcock Homes said a popular myth is if a building plan is changed by 10 percent it won't infringe
copyright. This is a complete fallacy, and one which has gotten many people into trouble.
"From our point of view we've won a lot of housing awards in Western Australia and nationally, and we spend many
hundreds of thousands of dollars developing new products.
"Everything we do carries the copyright symbol," Dale said. "We make sure this is also identified in the press and on our brochures.
"When we discuss individual designs with clients we always point out that if we do not build the design, it cannot be handed
to another builder because we own the copyright in the plans.
"The issue is the intention to breach or infringe copyright. We have to decide whether something that is unique in
our design has been copied. This can be a problem in that there are a lot of plans in the marketplace and they could be similar.
"If there is close interest shown by a competitor and we see an accumulation of items that could be classified
infringements we'll take legal action.
"Beyond that it comes down to a lot of leg work. Our staff - especially those visiting sites in both metropolitan and country areas - are constantly watchful and if other builders are constructing homes that resemble our designs, we investigate the matter.
"We're a market leader in this industry and we look at plans that other builders have produced to see if there is any possible infringement.
"It's not easy to police, but we're vigilant as the protection of our intellectual property is very important to our company and our professionalism."
Dale Alcock Home's philosophy is no different to the myriad of builders across the country that have found themselves in
the same situation. Tolmark Homes Pty. Ltd., in New South Wales, is another builder that has been forced to take legal
action to protect its copyrights.
"We provided a quote on one of our standard homes to a prospect," Tolmark's manager, Leigh Sneesby said. "She
took the plans away to think about it. We did our usual follow-up and the prospect told us that she didn't want to proceed.
"Instead the prospect engaged another builder to construct the house, but the block she chose was right next door to a
house of ours that was under construction. It was exactly the same design and extremely easy for us to detect.
"We challenged her regarding the copyright infringement and suggested she pay a fee of $3,000 for the use of the plans.
She declined and took legal advice.
"Unfortunately, the advice was totally inadequate. The prospect was told that no builder would bother to take a person to
court for such a small amount of money.
"We tried to broker a deal for the $3,000 plus interest at six monthly intervals and we did this right up until the time the case
was listed in the court.
"The client insisted she had done nothing wrong and refused our offer. Her builder had also told her that 'builders did this
sort of thing all the time' and she didn't have to worry.
"We continued with the case and won the action. She had to pay the $3,000 plus interest, all the court costs and solicitor's
costs. The bill came to around $42,000 and it took three years for the whole process to be concluded," Leigh said.
"Unfortunately, the other builder had gone broke and couldn't be named as part of the action, so the prospect learned a
very expensive lesson.
"In hindsight she would have been much better off admitting the mistake and paying the initial $3,000 fee."
South Australian Solicitors Lynch Meyer are extremely familiar with intellectual property cases.
Michael Hutton, Partner, said copyright infringements were detected in a number of ways.
"The home builder's supervisor may be driving around a suburb going from job to job when he notices a site or a newly
laid slab that has a familiar layout.
"Often the proprietor of the company will remember a particular block where they quoted to build a home and, despite the
quote not being accepted, the house springs up and either closely resembles the house plans or is identical.
"Sometimes a loyal subcontractor contacts the builder to let them know that he's been asked to quote on plans that look
like one of their designs. This is usually when we become involved.
"The first step is to ascertain ownership of the copyright. Once this has been established we write to the infringing owner
saying that a loss has been suffered and calling upon them to pay our client's loss or account to us for the profit that has
been made as a result of the plans being used. In many cases legal proceedings are commenced.
"Settlement usually occurs between when the proceedings start and the time the case goes to court," Michael said.
It is important for people to be aware that if they lose the case the monies they may have to pay could be substantial and
could include compensation to the copyright owner for the profit they would have made if they built a house using the
plans, or the profit which the infringers (builder, owner or draftsman) made from using the infringing plans. The infringer
would also pay the copyright owner's legal costs, which could be financially crippling in drawn-out cases.
It's equally as important for builders to be conscious of establishing who owns copyright before they quote on any plans
provided to them by prospective customers.
At the pre-contract stage the builder should ask the owner questions about the origin of the plans and, to save any disputes
later, the questions and answers should be recorded.
If the builder suspects that there could be an infringement of copyright then he should not agree to build the house.
If the builder has already begun work when he finds out that the owner doesn't have proper authority to use the plans, he
should suspend work immediately and seek legal advice.
Smaller builders and architects are at a distinct disadvantage and many will not have the manpower or the financial
backing to be able to resolve these issues through the court system.
Peter Doggett, an architect from Western Australia, said the companies he worked with had taken cases of copyright
infringement through the courts and had won.
"But unless someone tells us that this is going on we wouldn't necessarily know, and it's extremely difficult to follow up.
People go through display homes all the time and pick up brochures containing floor plans. If they don't ask that particular
builder to construct the house, we don't have any easy way of checking other than driving around the suburbs," Peter said.
Although copyright is a complex issue, the easiest way to simplify it is to say copyright does not protect ideas or concepts,
but it does protect the expression of ideas; for example, a drawing or plan, including plans shown on flyers, marketing
brochures and other freely available literature.
Once the plan in all its forms - whether it is external elevation or internal layout - is committed to paper, it's automatically
covered by copyright and cannot be used by anyone other than the person or company that created it without first
obtaining permission.
Infringement of copyright affects a large number of builders across Australia and hundreds if not thousands of cases go
before the courts every year.
Infringing copyright deprives builders or originators of plans of their legitimate income.
Reading the small print and paying attention to the copyright symbol could save home builders the embarrassment and
financial hardship of ending up in court fighting a case they have little chance of winning.
 Home Page |