Copyright is rarely discussed in construction and development projects, but it can have far- reaching implications if the relevant permissions are not properly put in place. A copyright owner has the right to prevent others from carrying out numerous acts, including copying, adapting, or issuing copies to the public.
Any project which involves the creation of new "works" such as written work, plans, photographs, diagrams, models, plans or charts (as well as the building itself) will need to consider who owns the copyright in those works. To qualify for copyright protection, the work does not have to be entirely new, just different to what existed before. However, if the new work is an adaptation or enhancement of a pre-existing work, then there may be more than one copyright owner to consider.
The first owner of copyright in any work is the author, or (if an employee) his/her employer. More than one person can be an author, whether they have worked together, or separately. It is also possible for more than one person to own copyright.
While it is possible to agree to transfer (assign) the ownership of copyright, this is rare in construction and development. Consequently architects, planners and surveyors will each own copyright in the works they produce and have the power to prevent others from using their work at all, or for any purposes other than those expressly permitted, as well as controlling permitted uses.
Permission to use a copyright work is granted in a licence. This can either be a separate document or it can be included as part of a more wide-ranging contract. The licence sets out exactly who can do what with the relevant copyright work, so it is important that (a) the scope is wide enough to cover everything that may be needed for the project, and subsequently; and (b) permission is given to all people or entities who will need it, and to consider whether sub-licences will be needed.
Construction and development professionals should therefore pay careful attention to the drafting of the terms of copyright licences, particularly in level 2 or 3 BIM-enabled projects, where sharing of copyright-protected works will be even more widespread. The best arrangements will be made where the parties have anticipated the likely needs for the works and the licence terms are expressly agreed in writing. This is also the best way to avoid or resolve potentially costly disputes.