Unlike many design projects, the design and construction of a building is unique. For one, the whole process takes a great deal of planning, preparation and construction time. Unlike many other design projects, once a project has been commenced, there is often no turning back.

Following many unfavourable comments from the media and general public of the Olympic logo, the day following its release many alternatives to the much criticised logo appeared on the television and the internet, cobbled together by eager volunteers. Matthew Barnes has outlined the position below.

But what if the design of the Olympic logo had been the design of a building? Had the unveiling been that of a major construction project, rather than a small logo, then there really would have been no alternative - the same selection of volunteers could not have been expected to start re-designing a development.

The result is that those involved on construction projects must be very aware of the commitment that such a project entails. However, they must also be aware at the outset and have a system in place should certain eventualities arise.

One major area of concern is what happens upon a change of personnel. For example, what happens given the following situation? At the outset of a project, the developer overseeing the construction of a building project employs an engineer to design and oversee the building works. However, prior to the completion of the project, the engineer leaves his position and is replaced by a new engineer. Given that many of the issues for the project may already have been finalised, such as gaining planning permissions and appointing the contractor on the basis of the engineer’s drawings it would appear to be vital that the drawings for the project, originally drawn up by the now departed engineer, can still be used.

Yet, what is the legal status of these drawings? Who do they belong to and would any new incumbent of the engineer’s post be allowed to use them, should the original engineer leave? If the developer, for example, is unable to establish that it owns whatever intellectual property there was in the drawings, then the project could end in a state of paralysis, or face the prospect of having to appoint a new engineer to start from scratch, which would increase costs. In order to do this it is vital to assess what intellectual property rights may subsist in the drawings, before considering what should be done going forward.

In the drawing itself, there will almost certainly be copyright that exists in the work. Copyright is a property right which vests in the authors of original works, and may include artistic works such as the drawings or plans for a building. There is no formal requirement in the UK to register copyright for it to be protected - a work will acquire copyright under the Copyright Designs and Patent 1988 as soon as it is recorded in a permanent form, such as being drawn up in draft on paper.

The author of a copyright work is generally the person who creates it, although there is no requirement that the creator has to own the work. The creator of a design may subsequently assign copyright to a third party. Additionally, where an artistic work is made by an employee in the course of their employment, the employer is the first owner of the copyright subject to any agreement to the contrary.

There may also be an unregistered design right in the drawings. However, this is a weaker right than certain other rights, although it is based on copyright principles. Unregistered design rights protect the shape or configuration of a marketable (or potentially marketable) product. They are used to prevent unauthorised copying of a design that is original. Design rights can also be bought, sold or licensed in a similar manner to copyright.

Design rights exist independently of copyright. While copyright may protect documents detailing the design as well as any artistic or literary work incorporated within the finished product, the design right focuses more on the shape, configuration and construction of a product. In the UK, unregistered design rights have been available since 1989, and have been available since March 2002 throughout the European Community.

In order to avoid the scenario discussed above in which an engineer left a project without it being completed, it is crucial to establish that the developer of the project owns the copyright and unregistered design right in any plans/drawings. This can be achieved by drafting an assignment agreement which caters for this. This would then allow such a developer to utilise whoever they wished leading to the completion of the construction project. The agreement would be structured so that all intellectual property, including copyright and unregistered design right, would remain the property of the project's developer. If the engineer leaves a project mid way through then the designs would still be useable.

Should you require any assistance with the drafting of such an agreement, then please do not hesitate to contact Matthew Barnes at George Davies Solicitors on 0161 234 8823 or email: matthewbarnes@georgedavies.co.uk.

Disclaimer

The content of this article does not constitute legal advice. You should always consult a suitably qualified lawyer for professional advice about any specific legal matter of concern to you. George Davies Solicitors, its partners and staff do not assume any responsibility for information contained within this article and disclaim all liability relating to such information.

George Davies Solicitors

George Davies was highly rated, in the North West, in 11 different categories of the 2006 Legal 500 review and in Chambers and Partners UK Directory. They specialise in all aspects of commercial law and boast a specialist niche Construction team with experience in a full spectrum of construction law services. The team was commended in the Legal 500 for its breadth of expertise, efficiency, and ability to provide specialist advice. Chambers specifically mention its achievements in Construction. Catherine Kay can be contacted on 0161 234 8861 or emailed at catherinekay@georgedavies.co.uk. www.georgedavies.co.uk

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