Understanding Copyright for Building Designs and Construction Documents

Canadian Copyright Act

The Copyright Act prohibits others from copying your work without your permission. Its purpose is to protect copyright owners while promoting creativity and the orderly exchange of ideas. The Copyright Act protects architectural work in the same way it protects other creative or artistic works. No one has the right to use your designs or construction documents without express written consent. Likewise, a designer cannot use the designs or modify another’s designs without the same consent. You are not required to register your designs for them to be copyright protected. Should someone illegally use your designs or construction documents without your permission you are entitled to the profits derived from the use of those designs. Copyright protection in Canada extends to 70 years after the death of the copyright owner.

A Guide to Copyright

Ammendments to the Copyright Act 2022

Copyright Act

Defining Artistic Work

architectural work means any building or structure or any model of a building or structure; (oeuvre architecturale)
architectural work of art [Repealed, 1993, c. 44, s. 53]
artistic work includes paintings, drawings, maps, charts, plans, photographs, engravings, sculptures, works of artistic craftsmanship, architectural works, and compilations of artistic works; (oeuvre artistique)
every original literary, dramatic, musical and artistic work includes every original production in the literary, scientific or artistic domain, whatever may be the mode or form of its expression, such as compilations, books, pamphlets and other writings, lectures, dramatic or dramatico-musical works, musical works, translations, illustrations, sketches and plastic works relative to geography, topography, architecture or science; (toute oeuvre littéraire, dramatique, musicale ou artistique originale)
2.2 (1) For the purposes of this Act, publication means
- (a) in relation to works,
  - (i) making copies of a work available to the public,
  - (ii) the construction of an architectural work, and
  - (iii) the incorporation of an artistic work into an architectural work, and

— Copyright Act - R.S.C., 1985, c. C-42 (Section 2)

What Constitutes Original Work

An “original” work under the Copyright Act is one that originates from an author and is not copied from another work. In addition, an original work must be the product of an author’s exercise of skill and judgment. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise. While creative works will by definition be “original” and covered by copyright, creativity is not required to make a work “original”. This conclusion is supported by the plain meaning of “original”, the history of copyright law, recent jurisprudence, the purpose of the Copyright Act and the fact that this constitutes a workable yet fair standard.

— CCH Canadian Ltd. v. Law Society of Upper Canada.

Who Is the Owner

Ownership of drawings, specifications and other documents used in the construction of a work is frequently confused with ownership of copyright. The ownership of drawings and related documents refers to the ownership of the drawings themselves, and is governed by the contract between the architect or engineer and the client. The ownership of copyright, on the other hand, refers to the ownership of the expression of the idea embodied in the drawings and the right to reproduce that expression. Architects or engineers who create the copyright work retain copyright in the work unless they expressly assign it to another.

— Endplex Investments Inc. v. Derrydale Golf Course Ltd.

Statutory damages

The copyright holder has the option to sue for statutory damages rather than going through the exercise of quantifying actual damages that were suffered or actual profits earned by the person infringing on the copyright. These statutory damages can be applied for each violation, for example if a builder illegally uses copyrighted designs to build multiple homes, each project would be eligible for a statutory penalty. Alternately the copyright holder could sue for the profit made from the sale of each building. As seen from the Copyright Act below the statutory damage could be up to $20,000 per infringement.

38.1 (1) Subject to this section, a copyright owner may elect, at any time before final judgment is rendered, to recover, instead of damages and profits referred to in subsection 35(1), an award of statutory damages for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally,
- (a) in a sum of not less than $500 and not more than $20,000 that the court considers just, with respect to all infringements involved in the proceedings for each work or other subject-matter, if the infringements are for commercial purposes; and
- (b) in a sum of not less than $100 and not more than $5,000 that the court considers just, with respect to all infringements involved in the proceedings for all works or other subject-matter, if the infringements are for non-commercial purposes.

— Section 38.1 of the Copyright Act

Copyright of Online Stock Plans

Stock Plans for houses, garages, or multi-family buildings are a popular choice for many developers or home owners. These designs found either in printed publications or online are protected by international copyright laws regardless of whether the firm is located in Canada, the United States, or elsewhere. If a designer is approached to prepare designs or construction documents based on a design found in print or online it would be an infringement of copyright laws unless permission is obtained. This applies whether the designer redraws or modifies the designs without permission from the original designers. In most cases the rights to a design can be purchased for the construction of one building. The homeowner, the builder, and the designer are all responsible to ensure the rights are obtained before using the design, ignorance is not an excuse. The typical requirement to obtain rights is to purchase the PDF or CAD files from the original designer. In some cases it is also possible to purchase the rights to build the design multiple times.