Judgement: Contractor infringes an architect’s copyright

It is not unusual that a contractor is declared bankrupt during a construction project. Most of the time, the project is continued by another contractor. But what about the architect’s copyrights on the design in this situation? Can the new contractor simply use this design? Marco Guit, Dutch lawyer in construction law, explains the case.

Architect disagrees with use of his design by new contractor

Acting under assignment of contractor X, the architect designed an apartment complex. After the bankruptcy of X, the new contractor re-assumes the project. However, the architect objects against the use of his design by the new contractor. An invoice amounting to € 17,500 had remained unpaid. The architect wanted payment of this invoice first. The new contractor referred the architect to the official receiver.

Dutch copyright: prohibition on use of building plans

The architect instituted proceedings against the contractor to discontinue the infringement on his copyright and to return all construction blueprints. He states that the contractor is infringing on his copyrights by continuing with the construction of the apartments without his permission. The architect, as holder of the copyright, has the exclusive right to grant permission for the use of the copyrighted work. He never gave the new contractor permission.

Designs are copyright-protected

The Dutch court states first of all that the designs for the apartment complex by the architect are considered work within the meaning of the Copyright Act, which entitles copyright protection. All drawings for the realisation of the designed apartment complex, are also included in the scope of the copyright. Furthermore, it holds that the (continuation of the) construction of the apartment complex in conformity with the architect’s drawings can be considered copying an architectural work, which can be deemed multiplication or copying as defined by Article 13 CA.

Licence on the use of the design is transferable in principle

The Dutch court furthermore considers that the licence granted to the bankrupt contractor by the architect is not transferable. A licence is transferable unless the law or the nature of the rights contradict any transfer. According to the court, the nature of this licence prohibits any transfer. The architect has indicated that he does not want any random contractor to execute his constructions. After all, the quality of the contractor is a determinant for the aesthetic quality of the final construction. The architect had a preference for the special expertise and reputation of this contractor. This renders it sufficiently plausible that this performance is tied to the personal characteristics of the licensee.

Contractor infringes the architect’s copyright

The new contractor used the drawings/designs of the architect to complete the apartment complex without permission to do so or without the licence being transferred. This constitutes an infringement on the architect’s copyrights by the contractor, who must immediately suspend the use of the drawings (i.e., the construction activities). However, the court also declared that if the new contractor pays the architect’s outstanding invoice, the judgement does not grant the architect any rights.