Most investors consider that they can dispose of the architectural study or project documentation they have had prepared by an architect or designer in any way and that they can modify or use it in the future without the architect’s or designer’s involvement.
In this context, however, it is important to point out that an architectural study or project documentation is a work of authorship within the meaning of Act No. 121/2000 Coll., on Copyright, on Rights Related to Copyright and on Amendments to Certain Acts, as amended (hereinafter referred to as the “Copyright Act”), if the architectural study or project documentation fulfils the general characteristics set out in the Act, i.e. it is the unique result of the creative activity of the author (i.e. the architect or designer) and is expressed in any objectively perceptible form.
The rights of the author, i.e. the natural person on the basis of whose activity the work was created, are primarily associated with the copyright work. Copyright includes both exclusive personal rights and exclusive property rights. Personality rights cannot be waived by the author and are not transferable. On the other hand, authors can dispose of proprietary copyrights.
Licences and copyright works
The author’s fundamental property right is to use the work, and the author may grant the right to exercise this right to another person by means of a licence. Without granting a licence, another person may use the work only in the cases provided for in the Copyright Act.
The license and its conditions should be stipulated in the work contract on the basis of which the architectural study or project documentation is made. The extent of the negotiation of the licence conditions should not be underestimated when drafting the works contract. The investor should try to set the terms so that they are consistent with its intention for the future disposal of the project. For example, the investor may stipulate in the licence that the licence is granted on an exclusive basis or that the investor is entitled to modify or possibly use the developed project for a purpose other than that stipulated in the contract.
If the licensing arrangement is not part of the contract for the work, it follows from section 61(1) of the Copyright Act that, if the author has created the work on the basis of a contract for the preparation of the work, the author has licensed the work for the purpose stated in the contract. Even if the purpose is not explicitly stated in the contract, the economic purpose of the obligation to create an architectural study or design documentation is deemed to be essentially the subsequent construction of the building for the purposes of the investor.
What effect does copyright have on altering a work?
The author who created the work has the right to the inviolability of his work , including the right to grant permission for any alteration or other intervention in his work. This right is an exclusive personal right of the author and no one may interfere with the work in any way without his/her permission. To control the above, there is an author’s supervision, which must be tolerated by every user of the work.
However, the right to the integrity of the work cannot be interpreted as meaning that the author is entitled to resist any changes to the work, provided that the changes are insignificant or that they result from or are necessary for a specific legitimate use of the work. Thus, the personality right to preserve the integrity of the work will only apply to changes to the work if these changes would be capable of affecting the artistic or scientific conception of the work.
With regard to property rights, the investor may modify the architectural study or design documentation only if this has been agreed in the licence, unless it is a modification or other change that the author could reasonably be expected to consent to given the circumstances of the use.
What does this imply?
In principle, a change to the architectural study or design documentation is possible if this has been agreed within the licence and its terms. If the right to modify the work is not contractually agreed in the licence (or the licence is not contractually agreed at all), the work may only be modified to the extent that the author could reasonably be expected to consent to the modifications. At the same time, however, such changes must not in any way affect the artistic and scientific conception of the work. However, as a precautionary measure, we recommend that authors be informed of the changes to the work so as not to interfere with their right to exercise their authorial control over the work.
The investor’s expectations and the related licensing conditions should therefore be incorporated directly into the contract of work on the basis of which the architectural study or project documentation is prepared, in order to avoid future ambiguities or even a dispute between the investor and the project developer, in which the author could claim monetary compensation. These principles can also be applied to works of authorship of a non-architectural nature.
This article is for informational purposes only and does not constitute legal advice or guidance for any particular case.
If you would like more information in this regard, please do not hesitate to contact us.