The High Court has found, in the recent decision of Signature Realty Ltd v Fortis Developments Ltd and another, 17 February 2017, that copyright in an architect's drawings was infringed in a case involving the development of a site by Developer B that had not been responsible for commissioning the planning drawings and securing the planning permission.
Developer A had obtained planning permission for a block of student flats in Sheffield City centre using drawings prepared by its architect. Developer A was unable to secure finance to acquire the site and the site was subsequently sold by the landowner to Developer B.
The planning permission secured by Developer A contained the usual condition that the development be undertaken in accordance with the architect’s drawings submitted to the local planning authority in support of the planning application.
The judge highlighted that there is no statutory or intellectual property right in a planning permission. The permission relates to the land and anyone is entitled to implement the permission so long as they satisfy the planning conditions.
The judge ruled that:
- copyright did exist in the architect’s drawings despite arguments by Developer B that the drawings were based on a previous set of drawings, that the designs were dictated by the shape of the building and the position of the existing lift shafts and stairs and that the remaining division of the space was entirely commonplace, logical and utilitarian. The bar for the existence of copyright was not high.
- although Developer B engaged its own architect, there had been some instances of infringement in Developer B’s use of the original drawings. Developer B had used the original drawings for marketing or architect/tendering/estimating purposes and created AutoCAD versions of the drawings to make a number of “As Built” drawings.
As a result of this, the judge ruled the copyright had been infringed.
However the judge did not award additional damages as there had been no instances of flagrant use of the drawings and because it was uncertain whether Developer B gained any material benefit as a result of the copyright infringement.
An injunction was refused despite infringing promotional pictures remaining on the internet and because the building had been sold and neither party had a continuing interest in the drawings.
The case demonstrates the fine line between benefiting from a planning permission attached to land and avoiding infringing copyright in the drawings that form part of the permission where the development is not carried out by the party that commissioned the drawings.
When developing land by implementation of a planning permission obtained by a third party, it is important to ensure that the developer secures permission to use all relevant drawings from the party which holds the copyright.
Permission is commonly given by way of a copyright licence which should permit not only use of the plans but also the right to vary and reproduce the plans but also to undertake the development in accordance with the plans.
Consideration should also be given to extending the benefit of the copyright to funders and successors in title as lenders will often require the ability to benefit from the licence.
In these circumstances, developers should also consider the need to secure the ability to rely on reports and surveys commissioned by third parties which relate to the property and or/submitted in support of the relevant planning application.
For more information or to find out about how the Development and house building team can help you please contact Will Nassau-Lake or Derek Ching on 0118 952 7246 or email firstname.lastname@example.org or email@example.com.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.