Who owns the copyright in house plans in Australia?

What does the Copyright Act say about house plans?

The Copyright Act 1968 treats both drawings and buildings as artistic works. Its definition covers a drawing whether or not it has any artistic quality and separately covers a building or a model of a building. Your plans and the finished house can each carry copyright.

Section 35 makes the author of an artistic work the owner of its copyright. The main exception is a work made by an employee under their contract of employment, which belongs to the employer. When an architect at a practice draws your plans as an employee, the practice will usually own the copyright rather than the individual who drew them.

Copyright arises without any registration, unlike patents and trade marks. For most works it lasts for 70 years after the author's death. As the Attorney-General's Department explains, it protects the original expression of an idea rather than the idea itself. A similar floor plan that someone draws independently does not infringe, while copying a substantial part of a protected design without permission can.

What does paying for a design let you do?

Paying for a design usually buys a licence to use the plans rather than the copyright in them. The terms of that licence come from your agreement with the architect or designer, which is why the copyright clause deserves a careful read before you sign.

The free standard terms that the NSW Architects Registration Board publishes for architects show a common approach. Under them the architect owns all copyright created in the work and gives you a non-exclusive licence to use the documents once, to build the project at the nominated address. That licence cannot be transferred, the architect must be credited in any use and the licence is revoked for any period the agreement is suspended.

An agreement that says nothing about copyright can still leave you a licence. The High Court set out how this works in Concrete v Parramatta Design. Where an architect is paid a fee that would normally cover building from the plans, the client has an implied licence to use them for that purpose. How far that licence reaches depends on the arrangement, so get legal advice and settle it in writing before design begins.

Can you take your plans to another builder?

Often you can, because a licence like the board's standard one is tied to your address rather than to a particular builder. The licence terms still matter, since a licence that depends on fees being paid or on the agreement remaining in force can fall away in a dispute.

Our guide to design and build vs an architect and a builder suggests asking whether you can take the drawings to another builder if you stop after design. These questions are worth adding before you sign:

• Who will own the copyright in the drawings and will any of it pass to you?
• Can you use the design with any builder or only with the firm that drew it?
• Can you reuse the design on another site or sell the land with the approved plans?
• Will you receive editable drawing files or only PDF copies?

If you want to own the copyright outright, you need an assignment. Section 196 of the Act says it has no effect unless it is in writing and signed by the owner or someone on their behalf. A paid invoice on its own does not transfer it.

Copyright also runs the other way. Building from plans found online or recreating a house you admired can infringe the rights of whoever designed it, because the Act protects the building as well as the drawings.

Copyright when we design and build your home

Most clients engage SHORE Design + Build for the full design and build, where our registered architect leads the design and our own builders build the home. The drawings that win approval are the drawings we build from. Others bring us an independent architect's design to build or ask us to design a home for another builder.

Whichever way you work with us, ask how the drawings may be used before the design begins, so the answer is in writing from the start. To see how one team carries a home from the first sketch to handover, explore design and build in Sydney with us.