Copyright to the architect in a project

Architect and copyright

Like any creator, an architect is entitled to copyright protection. The Copyright Act also explicitly mentions architectural works as copyrighted in Article 10: ‘designs, sketches and plastic works in relation to architecture’.

DNR conditions

In addition, the DNR terms are regularly declared by many architectural firms. It also appears briefly that the ‘consultant’, who is the architect, retains the exclusive right to publish, realize and reproduce his designs, drawings, sketches, photographs and all other images of his design (art. 46, version 2011). The Copyright Act, the Benelux Treaty on Intellectual Property Rights relating to Trademarks, Designs and Models (BVIE) are also mentioned.

It is further contained in the (Art. 48 i) DNR conditions that a client may not reuse the advice in whole or in part without express written permission.

Copyright in joint project

The requirement of copyright in a joint project also plays a role in a recent legal proceeding between two architects regarding the main terminal and related buildings at Eindhoven Airport. They worked together on a project where the aforementioned buildings were designed as a ‘growth model’.

After that task, the growth model was expanded by architect De Bever with a baggage hall, to which a task was issued without the other architect (KCAP) being involved.

Exclusivity?

The first question that the court must answer is whether the exclusivity provisions of the previous co-operation agreement have been violated. The court does not decide.

Article 16 of this Agreement provides that the exclusivity applies to the “Transfer” and Article 18 provides that the Agreement applies to the duration of the transfer. The task had already been completed, and the agreement has thus been terminated. It is also not otherwise likely that the parties have agreed on a (far-reaching) exclusivity, or that KCAP had to assume that De Bever undertook to – even after the expiry of the cooperation agreement continue to work exclusively with her.

copyright infringement

Kcap also accuses De Bever (and Eindhoven Airport) of having expanded the buildings, in violation of co-copyright, and that they also failed to mention Kcap’s name. This architect also argues that there has been a violation of copyright in the personality law.

Expansion

The expansion of the terminal was previously the starting point for the project. In short, part of the design was copied in the Luggage Hall, which was later realized. That it is a copy appears from the fact that 95% of this part is copied in the Luggage Hall.

The court found that this constituted copying and publication.

Common copyright

De Bever claims that KCAP is only a co-owner of the copyright and denies that permission was requested from Kcap for the baggage hall. However, the court decides otherwise. It is the opinion that Kcap has not waived any copyright, nor has given unconditional permission to use (license).

Copyright Infringement

The court then decides:

‘It is certain that Kcap has not given De Bever and EA permission to duplicate in the baggage hall. By reproducing and publishing without their permission, De Bever and EA have infringed Kcap’s co-copyright. Under Article 26 of the Aw, each of them may maintain the common copyright in the event of an infringement. This applies not only to third parties, but also to co-owners. ‘

The court therefore ruled that De Bever and Eindhoven Airport infringed the copyrights (in part) of KCAP, including the right of reproduction and publication.

Right to attribution

As an architectural firm, Kcap also invokes the right of attribution, as a right of personality. The appeal also succeeds:

‘The pictures of the Luggage Hall submitted by Kcap (prod. 15 Kcap under News and Media) show only De Beaver’s name. In the court’s view, Kcap is entitled to invoke the right of personality in connection with the supplement – as a fictitious co-creator within the meaning of § 8 Aws.

Reimbursement obligation for recycling

Kcap has therefore not given permission for its reproduction and publication. The court assumes that the previously agreed obligations include: obligation to pay compensation for recycling. The court agrees with the DNR conditions here. It states that “repetition of an advice” as referred to in Art. 48 DNR or ‘recycling’ of a design also applies if it takes place elsewhere. According to the court, Kcap has therefore rightly stated that EA has also failed in that regard to the name-calling obligation arising from the various contractual relations.

Compensation

The defendants are ordered to pay compensation to be prepared by the state. De Bever has also been sentenced to a correction

With regard to damages, the court also noted that due to the copyright infringement, the possibility of damage is likely because Kcap could have negotiated damages against permission and that reputational damages cannot be ruled out. The statement that the ‘architectural relevance of the baggage hall’ is limited and that the compensation would therefore be limited is insufficient to regard the possibility of damage as plausible.

Conclusion

Although an architect does not help to expand an earlier design, it is possible that the architect’s copyright and personality rights still need to be considered.

Joost Becker, Copyright Attorney

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