The concept of a piece of art that is architectural in nature or an artistically designed building being copyrightable might seem fairly self-explanatory, but what about the design plans for that architectural creation? Do the drawings created by an architect designing how a building will look ever attract its own separate copyright protection? Can those designs be used by someone else trying to create a similar looking building? Continue reading for a look at the ways in which architectural designs and plans are protected under the Canadian Copyright Act and Canadian caselaw.

Are architectural designs copyrightable works?

An architectural design falls under the category of “artistic works,” which includes drawings, maps, charts, plans, photographs, and architectural works.[1] An “architectural work” is defined as “any building or structure or any model of a building or structure.”[2] The significance of these definitions is that a building can be protected by copyright, as well as the various drawings, sketches, designs, and models related to said building.

The architect, as the person who creates the original fixed expression in the form of drawings, is the first owner of the copyright in the architectural design.[3] There is an exception if the work is created in the course of the architect’s employment, in which case the employer will be the first owner of the copyright,[4] although the architect will still retain certain moral rights to the integrity of the work and the right to be associated with it, unless those rights have been waived.[5] In such a situation, in order to use the architectural designs, both the employer’s ownership rights and the architect’s moral rights would have to be addressed (such as through a licensing agreement for use of the work) in order for anyone else to recreate the architectural design.

What does an architectural design need to be protected by copyright?

Not all architectural works or designs are protected by copyright.

An architectural design is protected by copyright if it is “achieved through the exercise of the designer’s skill and judgment, not through a simple mechanical application of their knowledge and experience.”[6] Amendments in 1988 removed the requirement that architectural works need to possess an artistic quality or character,[7] so “if the work originates from its author in that it was not copied and is the product of the author’s skill and judgment, there is no need to venture further and demonstrate the novel, unusual, or distinctive aspect of the work.”[8]

The burden of proving that copyright does not exist in an architectural work is on the defendant because there is a presumption in favour of the existence of copyright.[9]

The following are two examples of cases where the courts came to different decisions on whether a specific architectural design was protected:

  • Lainco Inc v Commission scolaire des Bois-Francs: In this case, the architectural design of a soccer stadium was protected by copyright and that copyright was infringed when a company built a structure that amounted to an unauthorized reproduction of a substantial part of the original architectural design. This case represents one of the first times in recent years where a building structure was found to benefit from copyright protection as an architectural work under the Copyright Act.
  • Betaplex Inc v B&A Construction Ltée:[10] In this case, the architectural design of a model home did not attract copyright protection because it “did not require any particular skill, that is to say any knowledge, developed aptitude, or practised ability […] and had not in any way solicited, […] ‘one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work.’”[11]

What would constitute infringement of an architectural design?

Infringement can happen even if there has not been an exact imitation of a work so long as it reproduces a substantial or important part of the work.[12] In the Lainco Inc case, photographs were taken of the original design and the infringers visited the stadium, which the court determined gave the infringers enough access to the design to allow for reproduction, but it is important to note that the court made it clear that infringement can happen even if a work is recreated from memory.[13]

A court would not consider the work/effort that went into the creation of a building or design plan based on the copyrighted work because “simply having to exercise some skill and judgment to produce the infringing work is not relevant.”[14] A court would also not consider the fact that a building would be a recreation in a different form than the original design on paper. “[T]he infringing work can be in a material form other than that of the infringed work. Thus, plans can be infringed indirectly by reproducing a three-dimensional object created from them, and vice versa.”[15]

Important Takeaway: Who can be held liable for infringing the copyright of an architectural work?

It is important to note that in the Lainco Inc case, a school board, an engineering firm, an architectural firm, and a general contractor were all held liable for the recreation of the soccer stadium’s design, which illustrates that entities may not have to be directly involved in the infringement to be held liable for it. The best solution for avoiding infringement of architectural designs is to receive authorization from the design’s copyright owner before using it as a basis for creating any other type of work.