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Are you considering building a new home? If so, there are many project home builders and house plans to choose from. Difficulties can arise, however, if you find the perfect house but the cost of building it exceeds your budget or if the house plans are not quite right. What will you do if the builder refuses to change the plans to meet your requirements?
Though it’s perfectly natural to think of taking your plans to another builder to carry out the changes the first builder refuses to undertake, this may result in a breach of the first builder’s copyright.
Copyright protects the expression of original ideas – not the underlying ideas themselves – and it provides the copyright owner with certain exclusive rights, including the right to reproduce the work in material form (for instance, drawn on paper, saved as a digital file, or photographed). Copyright therefore protects artistic works such as house plans and architectural drawings (referred to as ‘Original Drawings’). For example, copyright exists in a drawing of a floor plan, but not the idea that a house should contain four bedrooms and one bathroom.
Copyright is infringed when a person – who is neither the copyright owner nor licensed by the copyright owner – authorises the doing of any act that encroaches on the copyright, for example, by reproducing the design or a substantial part of it in material form. However, copyright is not infringed if, for instance, a person coincidentally produces a plan that is similar to another plan that the person has never seen.
The mere fact that a plan is published in a brochure or elsewhere does not give anyone permission to reproduce it. The critical point remains that if a person is not the copyright holder, or does not hold a licence from the copyright holder, reproduction of the plan is not permissible.
In considering whether there has been a breach of copyright, it is necessary to consider how the courts have dealt with this issue.
In Tamawood  the Federal Court noted there are two elements involved in determining if there has been a ‘reproduction’ of a work for the purpose of copyright infringement. Those elements are whether there was:
In Tamawood, the court said that the two elements – a sufficient degree of objective similarity, and a causal connection – are discrete but interrelated, and a finding on one element will often be relevant to the other.
In relation to the first test of objective similarity (reproduction) the majority (Jagot and Murphy JJ) said that:
The particularly striking feature between the two plans is that it is relatively easy, in the mind’s eye, to picture the Dunkeld plan, swap over bedrooms 1 and 2 and make a minor adjustment to the bathroom arrangements between those bedrooms, put bedroom 3 to the front of the building in the entry/dining area, and the picture that results is the Mondo Duplex 1. The fundamental relationship between the internal spaces and the exterior of the building is substantially, indeed overwhelmingly, the same.  (emphasis added)
In determining whether there had been a substantial reproduction Jagot and Murphy JJ considered whether the essential features and substance of the plans had been copied. They also referred to a case  where Lindgren J said the infringed plan was ‘embedded in‘ the infringing plan.
Adopting the terms of emphasis ‘embedded in’, ‘essential features’ and ‘substance’ of the plans means that:
Objective similarities can also be evident by looking at the elements that permeate the whole of the design – for example, the layout, traffic flows, and shapes, proportions and interrelationships of the rooms and other spaces.
Causal connection can be inferred by a high degree of similarity between the two works, coupled with the opportunity to copy. This involves a consideration as to the similarity between the Original Drawings and the new or amended drawings, and also whether a person had access to the Original Drawings.
There may be some differences between the Original Drawings and the new or amended drawings. However, it may be that the differences do not detract from the overall similarity between them, particularly if the room locations, interrelationships and traffic flow are all sufficiently similar.
Substantial reproduction involves the quality of what is taken more than the quantity and is a question of fact and degree. Generally, merely making a few changes to the Original Drawings, but leaving it ‘substantially similar’ will not avoid risk of claims that these changes breach the original designer’s copyright.
If a person wants to use or amend Original Drawings the best approach is to obtain a licence or assignment from the copyright owner. If a person has paid for the Original Drawings then there may be an implied licence to use the Original Drawings.
If no licence or assignment can be obtained, it doesn’t mean the underlying ideas in the Original Drawings cannot be used. However, the new drawings must be an original expression of the underlying ideas and not simply a copy of the Original Drawings.
If a person decides not to build from the Original Drawings, it is advisable not to show that plan to any subsequent builders. If the second builder does see the earlier plan, there may be an inference that the person has consciously or subconsciously copied original elements of the earlier plan.
 Tamawood Limited v Habitare Developments Pty Ltd  FCAFC 65
 Eagle Homes Pty Ltd v Austec Homes Pty Ltd (1999) 87 FCR 415
Further information / assistance regarding the issues raised in this article is available from the author, Megan Palmer, Senior Associate, or your usual contact at Moray & Agnew.