Is reproducing building plans an infringement of copyright?

31st Jul 2018

The Supreme Court of Queensland answered this question in the authority of Coles v Dormer & Ors [2015] QSC 224. There, the defendants were held to have substantially copied plans used to construct a house that they were unsuccessful in purchasing. The plaintiff, being the owner of the house, acquired the copyright in the plans, and was successful in obtaining an order that the defendants’ house be modified and that they pay him $70,000 in damages.

Should you wish to speak to one of our experienced lawyers about an issue you are facing pertaining to copyright, please contact our office on (07) 3009 8444.

Is reproducing building plans an infringement of copyright?

The Supreme Court of Queensland answered this question in the authority of Coles v Dormer & Ors [2015] QSC 224. There, the first and second defendants were builders who had been retained by a couple to construct a house from plans which had been specifically drafted by a building designer (the Plans). The couple later sold their architecturally unique home to the plaintiff. The third defendants were a couple who had sought to purchase the home but had been unsuccessful in their bid. Undeterred, they paid the same builders to construct a near identical house for them in the same estate in Port Douglas. Having heard rumours of the third defendants’ plans, the plaintiff acquired the copyright in the Plans from the building designer by way of an assignment.

Following on from acquiring the copyright, the plaintiff put the builders on notice that they held copyright in the Plans and that the construction of the identical house should be stopped.

It is important to note at this juncture that pursuant to section 202 of the Copyright Act 1968 (Cth) (the Act), a person who threatens another with an action in respect of an infringement of copyright may have an action brought against them by the other party to recover any damages sustained as a result of the threat, unless they can satisfy the court that they have an action in copyright. Accordingly, if you think you may have an action in copyright, contact our team of commercial litigators to determine how best to place the other party on notice of your rights.

Despite being placed on notice, the builders continued with the construction of the house, and the plaintiff commenced proceedings. In defending the proceedings, the defendants pleaded that the construction of the house did not reproduce or substantially reproduce the Plans.

Section 32 of the Act provides that copyright subsists in original artistic works by an author who is either an Australian citizen or resident. Building plans and houses fall within the definition of artistic works contained in the Act, making the act of reproducing plans without the consent of the copyright holder an infringement of the Act.

At trial, expert witnesses for each side came to agreement that the plans used by the defendants were in fact a substantial copy of the Plans.

Having regard to the defendants knowingly continuing with the construction of the house, Justice Henry ordered that the defendants remove the dormer roofs, arched and circular windows and the stone edge trim corners of the house. On the return date, Justice Henry awarded $70,000 in damages for the plaintiff’s loss of enjoyment of a locally unique house and a potential loss of the house’s value.

Should you wish to speak to one of our experienced lawyers about an issue you are facing pertaining to copyright, please contact our office on (07) 3009 8444.

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