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Learning about Intellectual Property Rights Law in the Construction Industry
Ruth Soetendorp
Prof. Emerita, Assoc. Director, Centre for Intellectual Property Policy amp;
Management, Bournemouth Univ., Poole, Dorset, UK BH5 12BB.
Intellectual property rights IPR law makes it possible for innovative, creative, and inventive intellectual output to be managed and traded. IPR includes patents for novel, inventive products or processes, designs for new or original aspects of products, trademarks for graphic signs that indicate the distinctive quality of products or services, and copyright for original works. Owners of IPR can defend their rights against infringers. IPR is an issue of great relevance to the construction and engineering field.
Damages for infringement of patent and unregistered design rights were the subject of the dispute in Ultraframe (U.K.) Ltd v. Eurocell Building Plastics Ltd and Eurocell Profiles Ltd.1Ultraframe held a valid and infringed patent alongside unregistered design right in a conservatory system.2 Eurocell had distributed a low-pitch roof system produced by Ultraframe under its patent, but went on to produce a competing system. Damages awarded to Ultraframe were calculated on the basis of lost sales, lost royalties, post-infringement losses caused by price depression and disruption of the market, and ongoing lost profit of sales of Ultraframersquo;s system (see Fig. 1).
In the U.K. trademarks to distinguish services in the construction industry are registered in class 37, and products are registered in a number of classes including class 6 and class 19.3 In 2004, a dispute between two major U.K. construction companies was resolved in the English High Court. Sir Robert McAlpine brought a passing-off4 action against Alfred McAlpine following Alfred McAlpine rebranding their business using the name “McAlpine” by itself. The court banned Alfred McAlpine from using “McAlpine” by itself since it would lead to confusion with the
business of Sir Robert McAlpine. Its business would be signifi-cantly affected because both had built up business reputations that were distinguished in the market by their first names.5 Sir Robertrsquo;s lawyer commented: “McAlpine is a powerful brand in the construction industry. . . . Sir Robert and Alfred McAlpine may continue to trade side by side without fear of confusion whilst enjoying the shared goodwill in this great brand” Bird and Bird(2004).
Copyright in architectrsquo;s drawings or builders plans is the most frequent source of IPR disputes in the construction industry. The UIArsquo;s Recommended Guidelines for Accord Policy on Intellectual Property and Copyright UIA 2001 defines the key concepts,issues, and common eventualities relating to IPR in the field of architecture, which are relevant to other disciplines within the construction industry. Ownership of rights in created works including designs, drawings, specifications is first the author or creator. Copyright protects the expression of the work, but not the ideas that underpin it. A company or public entity can own copyright where it has been assigned under a consultancy agreement,or where the creator is an employee and has created the work in the course of employment.
Copyright will only protect design works that are original(i.e.), where the creator can demonstrate an investment of her time,energy, intellectual resources, etc. in the creation of the design.They can be two-dimensional drawings, or three-dimensional models. A design that is a reproduction of something that is not original will not be protected by copyright. But the design is not required to possess style, taste, or aesthetic value to benefit from copyright. Copyright works should be labeled with the name of the creators and the date of creation. A copy hard or electronic should be logged in such a way that it will “stand up in court” if required for evidence that a creation was earlier than an infringing copy.
Where design is a product of input from more than one person,and it is not possible to identify the individual creatorsrsquo; contributions, then the creators enjoy joint copyright. The UIA guidelines point to a difference between common law and civil code jurisdictions. In common law countries the architectrsquo;s documents are normally treated as instruments of service and the architect retains ownership while the client enjoys the license, by contract, to use the documents to build the building. In civil code countries, the architect retains IPR in the documents, but ownership of the documents themselves is the client (UIA 2001).
In Dixon Investments v. Hall and Hall6 litigation centered on the right to reproduce building plans in a material form. Dixon was a builder of project houses in Queensland, who produced the basic plan for a project house. Hall and Hall were a husband and wife team. Mr. Hallrsquo;s job was cleaning up building sites for Dixon. He saw the display house on one of the sites, and built a similar house for himself. The Federal Court of Australia had to consider whether a copy, which is not a slavish copy of the original, is a reproduction of “a substantial part of the work.”7 The judge at first instance found that the Halls had experienced “direct inspiration” from Dixonrsquo;s house, but had not directly copied. The Federal Court agreed that there was an absence of a sufficient degree of objective similarity between the basic plan and the design of the respondentrsquo;s house. The case is illustrative of the fine line between the protection given by copyright to artistic works, which include drawings and plans, but not the ideas that created them.
Developers of public buildings wishing to enhance the finished building may want to add to its attractive qualities by the display of internal or external works of art, or artistic craftsmanship. Such work may be commissioned from an artist, or purchased or leased from a supplier o
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