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.
