It is nice to give the architect credit. But have you ever wondered whether they can insist on it? Discussions about designs tend to revolve around copyright – who can reproduce the designs, whether they have to pay for the privilege and whether the architect or other designer can withhold permission if their fees are not paid.
These days we tend to hear much less on the subject of moral rights – the poor relation of copyright, little known and even less understood. But these rights – some of which have been knocking around for years in the common law but are now enshrined in the Copyright, Designs and Patents Act 1988 – can be a useful asset for designers. They do not get rid of the need to sort out copyright issues, but they can be of great benefit in protecting the designer's artistic integrity. In a sense, they are a million miles from the hardnosed commercial world of copyright and due reward for services performed – they focus instead on the personal relationship between an artist and his work.
Three moral rights are relevant:
- The right to be identified as author of the work of architecture. ("I designed this and I want the world to know.")
- The right to object to derogatory treatment of a work of architecture with which you are publicly associated. ("I've seen what you have done to my building and I want nothing to do with it.")
- The right not to have the architecture of a building falsely attributed to you. ("Don't you go telling people I designed that rubbish.")
All useful stuff. Designers live on their reputations, and moral rights are designed to prevent these from suffering unfairly. Of course, life is never simple and there are a number of curiosities embedded in the law of moral rights. For example, the right to have your name on the building as author of the design has to be formally "asserted". This can be done at any time as long as, in the meantime, the right has not been waived – more on that later.
Designers live on their reputations, and moral rights are designed to prevent these from suffering unfairly
A particular curiosity is that all of these moral rights are personal rights of the "author". They cannot be owned by a partnership or company. They can only be asserted (where necessary) and enforced by the author. This means that within a large design organisation, it is necessary to identify who is the individual author of a particular "creation". Who was the most effective originator of the shape and design of the building? This might be difficult to establish where a large team have been working on the job, but there is good news – the concept of joint authorship is permitted, and individuals can assert and enforce the rights individually or collectively.
The individual nature of the rights does create a slightly odd situation. Many practices are known by their collective reputation rather than that of any individual. It may be of little use to the practice to have individuals identified on the building (much as the individual might like it). Also, it is not uncommon for employment contracts within design firms to include a waiver by each employee of his or her moral rights.
It may be that this only applies so that the employee cannot assert their rights against the company. Depending on the wording, however, this could amount to a complete waiver of all rights, so that they cannot be asserted against anyone.
What can you do if you like the idea of these moral rights but you want them to apply slightly differently. For example, what if you want to have the practice rather than individual authors identified with a building? The thing to do is simply to write a provision into your contract with the client. This would be enforceable in the same way as any other term. Note, however, that it would only bind the present client, unless you also included a requirement for the client to procure an equivalent agreement from any future owner of the building.
Patrick Holmes is a partner in solicitor Macfarlanes.