Copyright and Architects – Do former employees have copyright in work undertaken during the course of their employment?
Our client employed two registered architects in their business to allow the company to undertake a number of major architectural projects for clients. The projects included the major refurbishment of a commercial building in the CBD of Sydney, the fit out of an apartment building in Kings Cross and a major residential project in Point Piper.
The employees left to establish their own architecture practice with a former director of our client company. On their website they featured these three projects as projects undertaken by their new established projects. They included photographs of the projects commissioned by our client by a professional photographer who retained copyright in the images.
When the former director of our client’s company left the new practice, our client requested that the images be removed from the website and the content on the website be changed to make it clear that the architects association with the projects in question was in their capacity as employees of our client’ s firm and that the projects were commissions of our clients practice.
They refused.
The Copyright Act 1968 (the Act) provides that copyright owners have the exclusive right to publish their work and/or licence others to publish their work. The Act also provides for authors and joint authors of artistic work – which includes architectural drawings and plans – to have moral rights of attribution and rights related to attribution. Essentially that is a right to have your name (as an author or co-author) associated with the project by way of publication.
There are exceptions.
The starting point is that employees of organisations that create work in the course of their employment do not have copyright in their work, but do have moral rights, unless they agree to waive their moral rights as part of their employment agreement. If the employment agreement is silent on the question, the employee will have moral rights in their work – including the right to attribution if the work is published anywhere (including the employers website) – unless it is “reasonable” not to do so, or industry standards support the practice of not providing attribution to employees.
As a result of our intervention, the offending images have been removed, one of the projects has been removed form the website altogether and the description of the former employees connection with the CBD and Point Piper projects has been changed. We have referred our client’s complaint to the Royal Australian Institute of Architects (RAIA) for review.
Former employees of organisations that have worked on projects in which copyright exists, do not have the right to publish the work themselves and justify their actions on the basis that they have moral rights. The moral right to attribution, is not a right to publish the work.
This is an issue which can raise complex issues of the Australian Consumer Law (formerly the Trade Prectices Act) related to false and misleading conduct and the common law of passing off – misleading the public into thinking that work you present as your own, is work that you were commissioned to produce, when in fact your contribution arose by virtue of your being employed by a firm who attracted the client, took the commercial risk on the project and who owns copyright in the bundle of documents, drawings and specifications that comprise the finished project.
For more information contact Peter English