This article looks at why intellectual property is key to construction and property development.
Property developments, buildings and construction projects utilise a substantial amount of intellectual property. If physical property is real estate then intangible, intellectual property can be seen as unreal estate, this includes copyright works (for example, building designs, plans and drawings), trade marks, patents, design rights and confidential information.
From the numerous residential and commercial property brands which flourish across our cities to distinctively named construction projects and landmark buildings - all successful developers and landlords use trade marks to differentiate their assets from those of competitors, enabling developers to protect and invest in their property brands to increase market share.
Having solid trade mark protection and strategic trade mark advice is key to the growth of all such projects and prevents competitors or third parties involved in similar businesses, from benefiting from the substantial investment in those projects. Furthermore, it prevents damage to, or devaluation of their brand. Comprehensive registered Trade Mark protection enables the effective management and commercial exploitation of a brand by conferring upon the owner monopoly rights in the chosen mark. This will enable the developer to prevent other organisations or individuals from using any identical or similar mark in respect of similar projects in the territories in which the developer holds a valid trade mark registration. Managing the brand by bringing and defending trade mark infringement claims or mounting and defending opposition or cancellation proceedings, where appropriate will also enhance brand value.
Intellectual property, and in particular copyright, pervades all construction documentation from tender documents through to construction and subcontractor arrangements with architects and civil engineers. For example, the detailed design documents for a development will attract copyright protection automatically as soon as those documents are created. In the absence of agreement to the contrary, the first owner of that copyright will be the designer, civil engineer or architect.
All contractual documents for a construction project or property development must be drafted to ensure that the assignment or licence of the copyright flows through the suite of documentation to benefit the developer and other relevant parties.
Any failure to do this will have potential adverse implications for the developer and those parties.
The parties to each agreement contained in the suite of construction documents must ensure that they hold the necessary intellectual property rights to enable them to grant copyright or other intellectual property warranties in their respective agreements.
Intellectual property rights should also be considered in the context of Building Information Modelling (BIM) as this dictates how materials in a construction project, including copyright works, are licensed and how they are able to be used by the project team.
BIM provides a digital model of a construction project or building and is a resource for all parties who construct that building or infrastructure project. It provides a means of digital information management to a project team as the various parties are able to access all data in relation to that project. Consequently, this raises copyright ownership, licensing and infringement issues in addition to confidentiality considerations for the parties which place their materials onto the BIM system.
The widespread adoption of BIM (level 2) by the construction industry means that all construction documents should provide for their inclusion on BIM and the parties which create materials placed on the BIM system should be aware of the implications for them in relation to the permitted use of the copyright works. Similarly, those using the materials must be aware of the limitations of the use of those works.
The creation of detailed design drawings and plans and the assignment and licensing of such copyright works is an important element of the business of construction and property development. Equally, the creation and development of a successful brand is becoming central to the business strategies of all commercial and residential property developers and management companies. Adopting the right strategies for protection and licensing can enhance the value of an organisation's assets and facilitate future developments.
Our intellectual property team works closely with our real estate colleagues and can provide tailored advice for a particular project including strategic advice for the protection and commercialisation of landmark building brands as well as commercial and residential projects.
We also work closely with the marketing teams of property developers and construction companies in respect of their print, online, mobile, TV and social marketing and advertising campaigns, advising both on compliance with industry codes and advertising law and on contracts with third party creative and communications agencies.