In today's article from our Tuesday Mornings for Construction series, we'll discuss the copyright aspect of contracts with architects. First, we'd like to introduce you to the concept of copyright. Next, we'll discuss several important issues worth including in an architectural design contract with an architect.
The concept of copyright was introduced in the Act of 4 February 1994 on copyright and related rights (hereinafter referred to as the " Act "). Copyright is divided into:
- Moral rights – inalienable and non-transferable, inextricably linked to the author, protect the creator's bond with the work and are effective against all entities. Moral rights are also not subject to inheritance. Moral rights are regulated in Article 16 of the Act, which introduces a catalog of the author's personal rights that are subject to protection, e.g., the right to authorship of the work, the right to inviolability of the content and form of the work, and the right to supervise the use of the work;
- Copyrights – transferable rights to dispose of a work and receive remuneration for its use. Copyrights are regulated in Article 17 of the Act. It is worth emphasizing that these rights are time-limited and generally expire 70 years after the author's death.
According to Article 1, Section 1 of the aforementioned Act: " The subject of copyright is any manifestation of creative activity of an individual nature, established in any form, regardless of value, purpose, or manner of expression (a work) . Furthermore, according to Article 1, Section 3 of the Act: " A work is subject to copyright from the moment it is established, even if it is in an unfinished form ." It is worth emphasizing that copyright protection is granted to the creator (e.g., an architect) from the moment the work is concretized, until it is stable enough to allow persons other than the author to become familiar with the work. Furthermore, copyright protection is granted regardless of compliance with formalities (e.g., filing a utility model application with the Polish Patent Office). An important aspect is that while the case law of Polish courts indicates a rather broad understanding of the concept of a work, a work created solely as a result of advanced IT and computer programs cannot be considered a work if it was created without any evidence of human creativity. For example, the term "work" may include: a construction design, a conceptual design, an executive design, or a visualization of a building (this does not apply to situations where the visualization was created solely as a result of software execution). Legal protection also covers intangible property that represents the creator's established vision.
The author holding the copyright to a work is most often the architect, who signs the work with his or her name and the resulting reputation. It's worth noting that all of the architect's collaborators who participated in a given project also have copyrights, which cannot be stripped of them. Despite the non-disclosure of the names of co-authors in the project, they may assert copyright in the project. Therefore, when concluding a contract with the author-architect, it's advisable to address this issue, for example, by preparing a list of all authors as an annex to the contract. Furthermore, it's advisable to require the author-architect to obtain declarations from the co-authors expressing their consent to exercise their moral rights, including making changes to the project. It's important to ensure that the list of co-authors is complete.
Copyrights can be transferred through an assignment or a license. The former can occur, for example, through the acquisition of a completed architectural work. It's worth noting that, pursuant to Article 61 of the Act, which states: " Unless the agreement provides otherwise, the acquisition of a copy of an architectural or architectural-urban design from the creator includes the right to use it for only one construction project ." This provision protects the designer, guaranteeing that, unless the agreement provides otherwise, the investor will construct only one building based on the purchased work."
An alternative solution to transferring copyright is to grant a license to use an architectural work. There are two basic types of license agreements: an exclusive license agreement, under which only one specific investor may construct a given project, and a non-exclusive license, under which the architectural design may be reproduced by other entities authorized by the agreement.
When transferring economic rights, it is essential to specify the manner in which the acquirer will use the work. Pursuant to Article 41 of the Act, a copyright transfer agreement must specifically, precisely, and enumerately list the fields of exploitation. Failure to specify the manner of use of the work in the agreement, in other words, failure to designate the field of exploitation, renders the transfer ineffective in this respect, preventing the acquirer from using the work in this manner. Furthermore, including a clause in the agreement providing for the transfer of economic rights "in all fields of exploitation" would be completely ineffective.
When concluding a contract, it's important to address issues related to the author's remuneration for each specific field of exploitation, as the author is entitled to separate remuneration for the use of the work in each of these fields. It's crucial to clearly specify the amount of remuneration the author is entitled to in the contract with the architect.
Furthermore, a significant aspect of copyright in a contract with an architect is the issue of derivative rights, meaning rights related to the development or modification of the work. The original creator's consent is required to modernize the original work, unless the change is necessary to maintain the building in proper technical condition. For example, repainting the building's walls or renovating the roof tiles is permissible. However, work that could alter the structure of the building, such as through reconstruction or additions that would alter the original design intent of the architectural work, is prohibited, unless these rights are transferred to the investor.
In summary, an architect's copyright is crucial to the effective and legal execution of the construction process. A correct understanding of the issues described above is crucial when considering the architect's responsibility for the architectural design, which we will explore in the next article in this series.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of December 12, 2022
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