Similar, but not the same

RIBA forms of appointment have long stated that the client can only reproduce the architect's design by executing the project if the architect has completed a scheme design, and any fees due to it have been paid.

Unsurprisingly, this is all about fees. Conventionally, 35% of the total fee is due at completion of work stage D: scheme design, which encompasses application for planning permission. Such "front-end loading" is justified on the basis that the original intellectual input by architects occurs in the conceptual phase as they devise the solution to the client's brief. In addition, the "added value" of securing planning permission should be rewarded by a payment that exceeds any time-based input.

Clearly, many clients seek to reduce this percentage, particularly on speculative schemes. Even then, architects will assert that, if planning permission is obtained and the project proceeds, but they are not employed beyond work stage D, the client cannot use the architect's design on which the planning permission was secured without a further "compensation" payment.

Underlying all of these arguments is the belief that if planning permission has been obtained on the basis of an architect's drawings, the project cannot proceed without infringing that architect's copyright. This proposition must be regarded as being less certain as a result of the decision in Jones vs London Borough of Tower Hamlets and the Samuel Lewis Housing Association, 8 August 2000.

Tony Bingham described the case in Building on 20 October 2000 (page 63) but, briefly, Jones was engaged by a developer, Assured, to design several proposed housing developments in Bow. The first phase was partly built when there was a slump in the housing market and Assured got into financial difficulties. Tower Hamlets took over the development. Jones was not paid and asserted copyright in his drawings. Assured went into liquidation and Tower Hamlets obtained planning permission for a scheme designed by its in-house team.

Jones brought proceedings on the basis that his drawings were copied. Tower Hamlets accepted that there were similarities between the scheme as designed by Jones and that constructed by Tower Hamlets. But it said these were not due to copying but the result of the constraints of the site, the neighbourhood and Tower Hamlets' brief.

Copyright protects artistic works, not the ideas they convey

Similarities between schemes may be due to the brief and to site constraints, rather than to copying

Copyright protects the artistic work, not any ideas or information that it may be designed to convey. It is not an infringement of the copyright in a drawing to take the idea and apply it, so long as there is no copying of the drawing. This is not an easy distinction and, as the judge said, there does not appear to be any English case where the dividing line between an architectural idea (which is not capable of protection in law) and the expression of that idea in the form of a drawing or building (which is) has been determined. The problem is particularly acute with architectural drawings where there is a common stock of architectural ideas that everyone is free to use – many buildings reproduce design details from ancient Greece and Rome or the Georgian and Victorian periods in London.

At this stage, the deputy judge went to the site. He said, from observation, that the site dictated the configuration of buildings on it. Similarly, the height of the buildings to the east and west of the site and the partly constructed block dictated the height. The brief, to create a "mews-like" development with "back-to-back" rear gardens maximising "defendable space", in conjunction with the site configuration, dictated layout.

In other words, he found that the "design concept" was imposed and, in relation to alleged copying of such aspects as location, step layout, orientation and car-parking, although the similarities were evident and the "general feel" was similar, there was no copyright infringement.

Of course, planning drawings for most urban locations are also dictated by the brief, heights and style of adjacent buildings, site boundaries, orientation and so on. Does this decision mean, therefore, that an architect's copyright will never be infringed if a subsequent architect arrives at similar solutions? If it is infringed, what is the value of that copyright? Is it worth a premium fee? Interestingly, it was at the level of the detailed design of a partition around the bath that Jones was successful. Here, the deputy judge found that Tower Hamlets had unconsciously copied what was a unique solution to a tricky problem. Drawing on cases relating to subconscious copying in the music industry, he found that Tower Hamlets had looked at the original drawings produced by Jones and had later copied them, albeit from memory.