As the credit crunch deepens, the property market stagnates and Australia teeters on the brink of recession, building owners may concentrate on refurbishing and renovating current properties rather than investing in new builds. Owners need to be aware of the moral rights that an architect may retain in the building design and should give consideration to the need to both acknowledge these rights and comply with the regime set out in the Copyright Act 1968 (the Act).
The intention of this article is to examine what these moral rights are and their impact upon building owners. It does not deal with any copyright or licensing issues.
What are moral rights?
The Copyright Amendment (Moral Rights) Act 2000 introduced the moral rights provisions into the Act in December 2000.
These “moral rights” gave further rights to individuals who created the types of works that are protected by the Act. Three moral rights were introduced: the right of attribution, the right to prevent false attribution and the right of integrity.
An author or creator of a copyright work has the right to be identified as the author of a work, the right to prevent someone falsely attributing the creation of the work to another person and the right not to have certain derogatory acts done in respect of the work. Such derogatory acts include anything that results in a material distortion, mutilation or alteration of the work that is prejudicial to the author’s honour or reputation.
Subject to certain exceptions, moral rights apply retrospectively, but it is only acts or omissions after 21 December 2000 that give rise to the possible infringement of these moral rights. Importantly, whilst moral rights can be explicitly waived, they cannot be assigned to another by the author.
The moral rights of architects
Copyright subsists in the drawings produced by an architect to design a building. The same rights also flow through to the actual building that it is built as a reproduction of the design drawings. The architect, in respect of the building designed by the architect, also has the right of attribution, the right to prevent false attribution and the right of integrity.
An issue for building owners is that a contract drawn up for the design of a building prior to December 2000 will likely address the ownership of copyright, but it is likely to be silent in respect of moral rights. It is reasonable to assume that such contracts would not have contemplated the architect’s moral rights as moral rights in Australia did not exist at that point. There is also the potential, if proper legal advice was not obtained at the time, for a contract entered into after the introduction of moral rights to not give any consideration to moral rights.
Even if copyright in the building design has been assigned to the building owner, moral rights are distinct from the copyright. Unless the moral rights have been specifically waived by the architect, they will remain enforceable by the architect.
Whilst the right of attribution and the right to prevent false attribution are important, it is perhaps the right of integrity that could prove to be the most contentious.
How to deal with the right of integrity
Section 195AT of the Act deems certain treatment of copyright works not to constitute an infringement of the author’s (i.e. the architect’s) right of integrity. An architect’s right of integrity will not be infringed if, when wishing to make a change to, or the relocation, demolition or destruction of, a building if:
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after making reasonable enquiries, the building owner cannot discover the identity and location of the architect, or a person representing the architect; or
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the architect, or a person representing the architect, can be identified, the building owner gives the architect, or a person representing the architect, a written notice stating the building owner’s intention to carry out the change, relocation, demolition or destruction and permits the architect, within 3 weeks of the date of the notice, to have access to the building to make a record of the artistic work and consult in good faith with the owner about the change, relocation, demolition or destruction.
Where the person to whom the notice is given requires access to the building, the owner must give that person a reasonable opportunity to have such access within a further period of 3 weeks.
If, following this process, the person to whom the notice was given requires the removal from the building of the architect’s identification as the designer, the owner must do so.
It is important for any building owner to give consideration to this procedure in the event that they want to change, relocate, demolish or destroy a building.
What should building owners do?
It is recommended that building owners do the following in respect of the moral rights of the architect who designed the building:
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be aware of the rights that the architect may have and do not carry out work without regard to these rights. Failure to recognise these rights could result in an injunction granted against the building owner preventing it from carrying out the work or, if the work has been carried out and cannot be remedied, a damages claim against the building owner;
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follow the procedure set out in the Act. Whilst this procedure could delay any project by up to 6 weeks, if the procedure is followed then an architect will have difficulty in preventing the building owner from carrying out its plans. If these rights are given consideration early on in the process, the 6 week period is unlikely to cause much in the way of delay;
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if possible, building owners should obtain a waiver from the architect by which the architect waives its moral rights in the building. Any waiver of moral rights should be sufficiently detailed and set out the specific acts that the building owner may want to do. For example, a waiver from the architect that any change to, or relocation, demolition or destruction of, the building by the building owner will not amount to an infringement of the architect’s right of integrity.
Provided that building owners give due regard to an architect’s moral rights, it is this author’s view that these rights should not cause a building owner undue hardship or significant problems. If the identity of the architect is of value to the building, then the owner may, however, need to work with the architect to avoid any request by the architect to have their name removed from being associated with the building.
