Fain would I dwell on forms

Most people in the industry turn to standard contracts when embarking on a project. Most people will also be familiar with those produced by the Joint Contracts Tribunal. Not so many are aware that unless they follow the proper channels in acquiring such bodies' documentation for their own use, they could be liable for copyright infringement.

There are a variety of official outlets for JCT standard forms, but not everyone uses them.

The manner in which construction works means that bodies copy and distribute forms wholesale, and some people lift substantial chunks from documents for use in bespoke contracts.

Copyright is an intellectual property right protecting, among other things, original literary works and typographical arrangements of published editions of such works. Copyright subsists in "original literary, dramatic, musical or artistic works". It comes into force as soon as a work is produced. But are JCT standard forms original and are they literary works?

Copyright law refers to a literary work as any work that is written, spoken or sung, and contract forms and general forms and precedents have been held worthy of protection. The level of originality required is relatively low and the work does not have to be new, but just that it must not be copied from another work in existence.

It is therefore easy to establish that copyright subsists automatically in any new document issued by the JCT, so long as the work has not been copied from another work and that it is recorded "in writing or otherwise" – so computer discs are equally protected.

But any updated version of a document, such as an agreement taking into account new legislation, will only attract the same protection if a sufficient amount of time, effort and knowledge has gone into the updated part.

Copyright may also subsist in the typographical arrangement of the published version of such documentation. The layout and presentation of the JCT document is protected as long as it is not a reproduction of the arrangement of a previous published edition, its purpose being to protect the publisher's investment in typesetting the work. The right is distinct from the copyright protection afforded to the contract or guidance note itself.

The JCT has the exclusive right to do certain acts in relation to its documentation, including copying it, issuing copies of it to the public, lending it to the public, and making adaptations of it. The JCT's right is infringed when any person does or authorises another person to do any of those acts, without the license of JCT, to the work as a whole or to any substantial part of it.

Bodies copying and distributing complete standard JCT documents infringe copyright on two counts. First, by copying the work itself: this covers the reproduction of the document in any material form and would catch the body photocopying a document for its own use or storing the document on its own computer system. Second, infringement occurs when that body circulates copies of the document.

Copyright infringement on the basis of copying specific parts of a JCT document or issuing such copies to the public may occur depending on whether the part of the document copied or issued is a "substantial part of" the work. Whether a part of the document is a "substantial" part depends more on the quality of the part copied rather than on quantity, and is linked with the issue of whether the author has used more than negligible skill in creating that part which the third party has appropriated. Furthermore, where works are created regularly and small parts of them are appropriated regularly, it is arguable that there is copyright infringement even if any single appropriation would not have amounted to as much.

The party therefore who consistently uses a portion (say, the main body or structure) of a standard JCT document, changing only the names of the parties to the agreement and the work to be carried out, could be liable to infringement.

It is therefore quite clear that literary copyright exists in JCT's documentation. Copyright gives its owner an economic right to control the use of their documents and reap financial reward for its efforts in producing and developing standard documentation. JCT should not neglect its housekeeping and should enforce its copyright.