Do intellectual property laws in Canada protect architects, engineers and designers for their work product? All professionals that create designs, drawings and models that lead to building structures should be aware that their work is protected by copyright law. Words and logos commercially used in association with a building are protected by trademark law.
First of all, a brief review of the different types of intellectual property:
Copyright provides protection for literary, artistic, dramatic or musical works.
- Patents cover new inventions or any new and useful improvement to an existing invention.
- Trademarks relate to one or a combination of words, sounds or designs used to sell one’s goods or services.
- Industrial designs are the visual features of shape, configuration, pattern or ornament of a finished article.
- Integrated circuit topographies refer to the three-dimensional configurations of electronic circuits embodied in integrated circuit products or layout designs.
Copyright applies to the following categories:
- literary works;
- dramatic works;
- musical works; and
- artistic works: paintings, drawings, maps, photographs, sculptures, plans, etc.
A definition of “artistic work” includes charts, plans and architectural works. “Architectural work” is defined broadly as “any building or structure, or any model of a building or structure.”
A work must be “original” to be protected by copyright. This means it must be created by an author and be something more than a pure mechanical reproduction. Use of computer aided design (CAD) software does not defeat copyright that subsists in a plan (for example a house plan). Copy right protection extends to the overall form as well as the arrangement and composition of spaces and elements in the design.
As a general rule in Canada, copyright lasts for the life of the author (or in the case of several authors, the last to survive), the remainder of the calendar year in which the author dies, and for 50 years following the end of that calendar year. The work or creation falls into the public domain on December 31 of the 50th year after the author dies.
Registration is not required for copyright protection in Canada, but there are benefits since registration provides notice to the world of the owner of the copyright. An engineer or architect could obtain and register more than one copyright on a particular project, to protect various aspects.
Registration under the Copyright Act is quite simple, but care should still be taken to describe the work or structure simply and accurately. The following information is required: 1) Title of the work; 2) Category of the work; 3) the date and place of first publication; 4) The name and complete mailing address of the owner(s); 5) The name of the author of the work if different that the owner; and 6) a declaration that the applicant is the author of the work, the owner of the copyright in the work, an assignee of the copyright, or a person to whom an interest in the copyright has been granted by licence.
Moral rights are important for architects and designers and are part of copyright protection. Moral rights include the author’s right to be associated with the work and include the author’s right to the integrity of the work (to ensure the work is not distorted). Moral rights of the author exist in a work for the same length of time as other copyrights in the work, even where the work, or the copyright in the work, has been sold or assigned. Therefore, assignments and licenses of copyright should include a written waiver of the author’s moral rights.
Trademarks associated with architectural works and designs: An architect could have trademark protection for a distinctive building associated with a brand. If someone copied the design or the actual structure and used it in a commercial way, one could sue for trademark infringement.
There are four elements to prove trademark violation:
- The building is distinctive.
- It represents a brand associated with the sale in commerce of certain products.
- The use of the trademarked building was not “fair-use”.
- The building was used to promote similar goods or services.
Apple Inc. has led the way by registering the trademark to the layout of its stores located in malls with the U.S. Patent & Trademark Office. The description of the mark covers the glass entrance, lighting, shelving and table placement. Apple filed an identical application in Canada in 2010 which is still under examination.
Clearly the architects, engineers and other design professionals are protected by relevant trademark and copyright laws in Canada. This is good news and care must be taken to register and enforce these rights!
© October 2015
Taras Kulish lived in Switzerland from 2011 to 2014, in Preverenges on the shores of Lac Léman.
