Planning permission and copyright infringement: a cautionary tale
The recent case of Signature Realty Ltd v Fortis Developments Ltd & Anor highlights the caution that developers should take when acquiring a site with planning permission. The case confirmed that copyright protection applies to architects' drawings used in an application for planning permission and that without an assignment of copyright or licence, a developer can be liable for copyright infringement.
The development was proposed as the conversion of office buildings to student accommodation and Signature Realty Ltd exchanged contracts with the land owner to acquire the property. Following exchange of contracts and, in order to proceed through to completion, Signature applied for planning permission from the local authority. In order to make such an application, Signature instructed an architect to produce suitable drawings of the plans. Despite the acquisition of the site falling through, planning permission was granted and, as is standard practice, it was conditional on the site being developed in accordance with the drawings submitted in the planning application ("the Drawings").
Fortis Developments took over the site acquisition and, in order to comply with the planning conditions, downloaded the Drawings from the local authority website. Fortis then proceeded to instruct its own architect to produce updated drawings and in 2016 the development was completed based on those updated drawings. Prior to completion of the development, Signature obtained an assignment of copyright from the architect in respect of the Drawings and subsequently brought claims against both Fortis and its construction company Beaumont for copyright infringement..
Signature made four claims of infringement against Fortis and Beaumont namely:
- The use of the Drawings for marketing or architect/tendering/estimating purposes;
- The use of the Drawings for making AutoCAD versions of the Drawings;
- The use of the Drawings to make altered copies of the Drawings for marketing, architect, tendering and/or in the construction of the development; and
- The use of the Drawings for the making of CGI images for marketing collateral.
Despite admitting that they had downloaded the Drawings from the local authority website, Fortis contested that the Drawings had "originality" and therefore were not protected by copyright. This argument was swiftly rejected by the judge and the established premise of a low bar for "originality" was upheld. A further argument by Fortis was that it had an implied licence for the use of Drawings however this argument also failed on the basis that it was Signature, not Fortis, that had initially instructed the architect to produce the Drawings i.e. that Signature would have had a licence but not Fortis.
On consideration of the facts, the judge upheld the first and second complaints made by Signature and partially upheld the third complaint. With regard to the third complaint, infringement was only upheld for some of the altered drawings and the fourth complaint was dismissed entirely.
A separate hearing took place to deal with remedies Signature would be entitled to as a result of the infringement by Fortis and, whilst we await the outcome of the inquiry in to 'standard' damages, the judge did rule on Signature's request for additional damages, finding that the matter gave rise to any additional damages being awarded as Fortis had not intentionally infringed the rights. Signature further requested an injunction to prevent further infringement of the Drawings by Fortis however this too was refused. The judge's rationale was that the development had already been built and therefore the effect of an injunction would be futile, particularly as the development has been sold to a third party.
The decision of this case highlights the potential pitfalls that developers must be wary of when pursuing site acquisitions and developments. Buyers must ensure that the intellectual property rights relating to design drawings have been correctly assigned or licensed as they are owed by the architect who created them and, even partial use of architects drawings can result in an infringement. It also shows that delay in bringing proceedings is likely to be fatal to any attempt to obtain an injunction in situations where the infringement has happened and there is no ongoing damage to the rights holder, if Signature had sought an interim injunction preventing Fortis from beginning work then this may have been a very different situation.
If you would like further information on this issue, or have concerns regarding copyright infringement, then please contact Blake Morgan's Intellectual Property Team.