EQUATING PLANNING PERMISSION WITH A COPYRIGHT LICENCE IN DESIGNS CAN BE COSTLY

A recent English High Court case (Signature Realty Limited V Fortis Developments Ltd and others) has again brought attention to the vexed issues around copyright in plans approved as part of planning permission. The amount of damages is yet to be decided but there are hints in the decision that it could be significant – even as much as £360,000.

Implications

Usually a site owner /developer will instruct architects to draw up the planning designs. If planning is granted based on those and the owner then sells the site to a 3rd party, it can normally use the drawings without infringing copyright. This is because although the architect will have usually have retained the copyright in them , if they have been paid for all of their work, there will be an implied licence to use these for all purposes connected with the erection on the site of the development to which the plans relate. That implied licence is also transferable. Even if the original architect is cut out of doing the subsequent work they have no claim.

The difference here was that the new owner –Fortis- did not buy the plot from the party which owned the copyright (which became the Claimant ) and had applied for the planning permission. Rather they bought from the party which owned the plot. That party could not have any licence to the copyright or ability to transfer it. Any implied licence to the copyright here lay with the Claimant which of course did not own the land!

Whilst planning permission allows a subsequent owner of a site to build on it this does not mean that they can do this in line with any design drawings which have been relied on to obtain the permission. This is because these are subject to copyright and such use without a licence will be infringement. This may render the planning permission more or less redundant as it will be difficult to comply with it without infringing. Also any defence of independent creation may prove difficult to establish and lack credibility given that the designs are publically available.

Thus careful attention needs to be paid to the copyright issue as planning permission is not a licence to copy or a get out of jail free card!

Tips to avoid the Planning Permission/ Copyright Trap • Don’t rely on planning permission and the public availability of the underlying designs as a licence to use the latter.

• Planning permission does not equate to a licence to copy/ use the approved plans and this may be in breach of existing copyright.

• Drawings are generally copyright and copying/ reproduction without consent is prohibited

• Changing the designs or using only small parts of them may not be enough to avoid infringement – all that is needed is substantial copying which is judged qualitatively as opposed to quantitatively

• Before acquiring the land, as part of the due diligence, check who owns the copyright in the designs and secure the clear written licence/consent/assignation of the true copyright holder (as well as warranties of ownership if possible) before using the approved plans for any purpose.

• Do not just turn a blind eye or adopt a careless attitude to copyright as to do so risks an infringement claim, liability for damages and even worse an award of additional damages for flagrancy.