Summary

The High Court has held that copyright in an architect's drawings was infringed where the property developer who obtained the planning permission and commissioned the drawings was neither the original landowner nor the developer who built the building in accordance with the drawings.

Background

The court may award additional damages in particular having regard to the flagrancy of the infringement and any benefit accruing to the defendant by reason of the infringement (section 97(2), Copyright, Designs and Patents Act 1988) (section 97(2)).

Facts

A property developer, S, obtained planning permission for a block of flats on the basis of the drawings of its architect, C, but was unable to secure finance to buy the site and complete the project. The site was subsequently sold to F. Copyright in the drawings was originally owned by C but was assigned to S in order that it might issue proceedings.

The planning permission was granted on condition that the development was carried out in complete accordance with C's drawings (the drawings)]. The drawings were published on the local authority planning portal with a copyright notice that limited their use to consultation purposes, for comparing current applications with previous schemes and for checking whether developments had been completed in accordance with approved plans.

S sued F for infringement of copyright in the drawings in relation to the promotion, marketing and construction of the development on the site.

Decision

The court found that F had infringed S's copyright in a number of the drawings by using them for marketing the properties developed on the site, tendering and estimating purposes, making altered versions of the drawings, making AutoCAD versions of the drawings, and constructing a building in accordance with the drawings.

There is no statutory or intellectual property right in planning permission. The permission relates to the land and anyone may make use of it so long as they satisfy its conditions.

Copyright did subsist in the drawings despite F's arguments that they lacked sufficient originality because they were based on a previous set of drawings, were dictated to some extent by the shape of the building and the position of the lift shafts and stairs and because the remaining divisions of the space were entirely commonplace, logical and utilitarian. The bar for the subsistence of copyright is not high. So, the court found there was sufficient intellectual skill in the drawings for copyright to subsist.

The court rejected F's argument that it had an implied licence from the architect to use the drawings as it had paid a premium for the planning permission. F had not itself engaged the architect. It had also not bought the land from the copyright owner, S, which had applied for the planning permission but rather from a third-party land owner.

F admitted that it had obtained the drawings from the local authority’s portal, but argued that it did not copy the drawings as it had engaged its own architects, who had visited the site and produced their own drawings. However, because the build had to satisfy the conditions of the planning consent, there were instances in their use of the drawings where the new architects’ drawings were sufficiently similar to constitute copyright infringement.

F's architects also created a number of drawings which were based on the drawings, but which had been altered. Here the court had to determine whether a substantial part of the drawings had been reproduced in the new drawings. This included a consideration of the constraints placed on the architects by virtue of the characteristics of the building itself. The court held in some cases that the new drawing did reproduce a substantial part of the drawings and in some cases that there was insufficient similarity or that what had been taken was too trivial for a finding of infringement.

The court made an order for an enquiry as to damages or an account of profits. Additional damages under section 97(2) could not be awarded. There had been no instances of flagrant use and the benefit gained by F had not been a result of the copyright infringement as distinct from the planning permission. The court did not grant injunctive relief despite the fact that a few remaining promotional pictures remained on the internet. The building had been sold and neither party had a continuing interest in the drawings.

Comment

This decision demonstrates the potential pitfall when buying land with the benefit of planning permission where the development is not carried out by the party who obtained the planning permission. In particular, it illustrates the importance of obtaining an appropriate assignment of copyright, or a licence to use, the relevant drawings in order to avoid infringing copyright in the drawings that form the basis for the planning permission.

Where a site owner instructs architects to prepare design drawings on the basis of which planning permission is granted and then sells the site to a third party, normally that party can use the drawings without infringing copyright on the basis of an implied licence to use these for all purposes connected with the erection on the site of the development to which the plans relate. Here, however, F did not buy the land from the property developer S, who had instructed the architect and obtained the planning permission, as S did not own the land. So the landowner had no implied licence which he could transfer to F.

Case: Signature Realty Ltd v Fortis Developments Ltd and another [2016] EWHC 3583 (Ch).

First published in the April 2017 issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.

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