Walking a fine line: Copyright Infringement
A recent case, Signature Realty Ltd v Fortis Developments Ltd and another  EWHC 3583 (Ch), 17 February 2017 reminds us that planning permission drawings, published on the local authority’s website are still the property of the architect in terms of copyright. We should not confuse the council’s stipulation that a building must be developed as per the drawings submitted as an implied permission for anyone to utilise the drawings freely. A copyright licence must still be obtained from the copyright owner.
Signature noticed an opportunity to develop a building into student accommodation for foreign investors to develop and sell on. The foreign investors formed a company (Wordsworth Realty Limited) and whilst in the process of obtaining planning permission exchanged contracts with Branchester, the original owner. The planning permission was granted on the condition that the development was carried out in accordance with the drawings of Signature’s architect C&W. The drawings were published together with details of the planning permission on Sheffield Council’s Planning Portal.
Wordsworth failed to complete on two occasions and the property was consequently sold to another developer Fortis Developments Ltd.
Fortis subsequently began to download the architectural drawings available on the Sheffield Planning Portal for estimation and marketing purposes. Signature had the copyright ownership assigned to it by C&W so that it could bring a claim for damages. Signature argued that the copyright infringement occurred at the point of use for marketing and estimation purposes and continued by use of the drawings for development and construction of the site.
The decision of the judge was an unsurprising one; the use of the drawings was deemed a copyright infringement.
However, it is interesting to note that, in other situations an architect may fail to claim copyright infringement if they complete the drawings in accordance with their client’s instructions and are then paid their professional fee in full. If the client then goes on to gain successful planning permission and subsequently sells the site the implied licence between an architect and their client can be transferred to an incoming purchaser of the site (Blair v Osborne & Tomkins  2 QB 78).
In any event, no assumptions can be made. The case in question highlights that there is a fine line between utilising the planning permission attached to the land for the benefit of constructing a future development and copyright infringement through use of the plans on which that planning permission was granted. Therefore, any developer acquiring a site must ensure they obtain a collateral warranty which includes a copyright licence or that they appoint the architect (if they are still the copyright owner) to complete the design of its development.