Copyright on design

We are about to apply for planning permission for a small residential development and, to save fees and costs, are thinking of repeating a design that was prepared for us by an architect on a similar project a few years ago. Can we do this?

Answer

From a planning perspective, there is nothing to prevent you submitting a planning application on this basis, but obviously all relevant current planning rules and policies will have to be complied with. Also, an application to repeat a previous design may not be well received by the planners where, for example, the site is in some way sensitive or where there is a conflicting local vernacular style.

You will also have to take into account the fact that the building regulations may have been updated since you first constructed this design. This is particularly the case with Part L (Conservation of Fuel and Power), which is being progressively tightened as part of the drive towards 'zero carbon homes'. The latest revision has applied since October 2010, and this requires a significantly higher standard of energy efficiency, insulation and air-tightness than did the 2006 revision. Your existing design will have to be reviewed and, at the very least, amended to ensure that the proposed building meets these new standards.

The question of copyright will be key to whether you can proceed in this way: a design cannot be copied (whether in two dimensions as drawings for a new project) or in three dimensions (in the form of the new buildings) without either ownership of the design or a valid copyright licence. The terms of your appointment of the architect on the original project should cover this.

When an architect produces a design for a client, the starting point is that the copyright in that design will be owned by the architect, subject to the provisions of the architect's appointment. This may provide that you, as the architect's client, own the copyright, in which case you can make free use of the design for all purposes.

However, as the architect was employed to produce a design for a specific project, it is far more likely that any copyright licence that you were given will only cover use of the design on that project. In these circumstances, you will need to negotiate a further copyright licence with the architect before you use his design for the new project, and this will almost certainly involve further payment.

Do not be tempted to repeat the design unless you own it or have a proper copyright licence: this will almost certainly result in the architect claiming substantial damages from you and could even result in an injunction to prevent construction or sale of the finished product.