Architecture encompasses a range of disciplines. Design, functionality, technique and, at times, good taste, come into play to achieve a result that comprises all of these in one: the building. But who does the “work” belong to? Can you protect a building?
Imagine (for a joyful moment) that you are the architect of your favorite building. You have created the structure, drawn up the plans, gone over the layout and its design in minute detail, and after much effort and numerous battles, it is finally built. Now imagine that the new owner of the building comes up with the idea of changing its most characteristic elements. Can they? Or imagine the opposite, that you are the owner of the brand-new building and intend to change its most characteristic aspects. Is this viable?
The built work belongs to the owner of the building. The intellectual work to the architect. However, an architect’s intellectual property rights in his/her work can conflict with the ownership rights in the built work creating a situation that is less than desirable for both, in which each may hamper the interests of the other. While the architect intends to maintain the original integrity of his creation, the owner may want to alter one of its components, thus putting the original creation at risk.
Is the built work protected?
Buildings may be protected by copyright if they constitute what is known in this field as an original work. This is held by both Spanish scholars and case law, although no express mention is made of them in the Spanish Copyright Act (SCA). Therefore, the answer is that if the building complies with the originality requirement, then it may be protected by copyright.
But in intellectual property terms, what is a work?
Not all creations can be considered works and be protected by copyright. A creation (in this case architectural) must meet certain requirements to be considered a work. The Court of Justice of the European Union (“CJEU”) has established that the creation must be (i) embodied in a medium or format; and (ii) be original.
Since the concept of originality is not legally defined, it is necessary to look at the interpretation by the CJEU in the most recent cases. For example, Cofemel (2019) and Brompton (2020), reveal that the originality of a work must be addressed from a subjective standpoint, in the sense that it reflects the personality of its author. Consequently, works may be protected provided that they are original from a subjective standpoint. However, the court adds in the Cofemel matter that when the realization of a subject matter, “has been dictated by technical considerations, rules or other constraints (…) which have left no room for creative freedom” it cannot be considered an original work.
The latter is what could complicate compliance with the originality requirement as far as architecture is concerned. Why? Because it is necessary to determine the author’s creativity margin, the building’s functional needs, the technical and zoning limitations and even input by external agents (sponsors, engineers or clients), that may, to a certain extent, affect the originality from a subjective standpoint. An eloquent example: in a case involving government-subsidized housing, the Supreme Court ruled out classifying the housing as a work (in copyright terms) because the appearance was largely due to zoning and hygiene restrictions (Supreme Court judgment no. 12/1995, of January 28, 1995 [ECLI:ES:TS:1995:359]). Therefore, the first problem the architect faces is making the work sufficiently original as to be protected.
What protection does its consideration as a work afford?
An Intellectual work confers on its authors a series of exclusive rights that enables them to freely dispose of the work and prohibit and authorize third parties from using it. The author of an original architectural work has two types of rights:
- Economic rights
Economic rights enable an author to exploit his/her work. They belong to the architect throughout his/her life and for up to 70 years after his/her death. In the context of architectural works, the most relevant rights are the rights of reproduction and adaptation (articles 18 and 21 SCA, respectively). Economic rights in a work exist irrespective of the medium, so whoever acquires the building does not have, simply because they have acquired it, the right to exploit (in terms of copyright) the work (article 56 SCA).
- Moral rights
Moral rights establish the connection between the author and his/her work. The SCA recognizes the following rights: disclosure, attribution, integrity of the work, modification, withdrawal and access to a single or rare copy of the work. These rights are personal, unwaivable, inalienable, and nontransferable. They usually end with the author’s death although some may be exercised indefinitely. The latter may occur with the right to require respect for the integrity of the work, whereby on the author’s death, the right is exercisable by his/her heirs.
Does protection include the possibility of preventing adaptation of the work?
If the creation constitutes an original work that is protectable by copyright, the author may assign the exploitation rights (including the right of adaptation) or decide not to do so. By signing a copyright clause, the rights of the owner of the building in relation to the work are determined. Such agreement must include, at least, the following points: (i) whether the assignment is exclusive or not, (ii) the term and the (iii) territorial scope chosen. If no provision has been made for an assignment in the agreement, and a transfer takes place, the rights of exploitation in the forms of exploitation that necessarily transpire from the agreement will be deemed to have been made to the other party for a period of five years, in the country in which the assignment occurred (article 43 SCA).
What happens if there is no assignment clause in the agreement?
The fact that the architectural work has been commissioned does not necessarily imply the transfer of the author’s (architect) copyright in the work. Therefore, in the absence of an express provision, the adaptation rights will remain at the disposal of the author of the architectural work. The architect also retains the moral rights that could restrict the free possession of the owner who must, in all cases, respect the right to integrity of the work. As a result, the author is entitled to prevent modifications being made to the building provided that they damage his/her legitimate interests or reputation. It is important to mention that whether a modification is considered an infringement will depend on the originality of the building in question and how far the changes made damage the author’s legitimate interests or reputation, which varies case by case.
It should be borne in mind that not every modification is sufficient to infringe the legitimate interests or reputation of the author. According to Spanish scholars and case law, changes that affect the structure, proportions or volume of the building would constitute a breach of this right. Other criteria followed are the extent of the adaptation and its purpose.
In short, both the owner and architect should take an interest in including in the agreement they sign, specific rules for the exploitation rights in the architectural work.
Blanca Jiménez de Alvear
Garrigues Intellectual Property Department