Dragana Bukejlovic Student Writer, Windsor Law LTEC Lab J.D., 2018
Technological advancement has had a substantial impact on many industries throughout the last century. Computer software has enabled professionals and every day users to perform their work in a more efficient way. Drafting software has had an impact on the architectural industry in particular. Gone are the days of architectural technologists and architects manually drafting hundreds of pages of blueprints or manually constructing 3D models of proposed buildings. Prior to attending Windsor Law, I worked as a Junior Mechanical Estimator. I was trained to read mechanical drawings, and while I am now in law school, I have taken opportunities to bridge my previous work experience with areas of the law I am exploring. This experience served as the inspiration for this post. The issue that will be explored is whether the use of drafting software has implications for copyright protection and the scope of protection conferred on architectural drawings.
Introduction
Manual drafting has been replaced with drafting software such as CAD and Revit, among others. At their core, these programs can assist with calculations, insert templates, and allow you to underlay previous designs to begin a new design. Options exist for 2D and 3D modelling, and most 3D software today will enable you to 3D print a mock up of your proposed design.[1] An important question for consideration is whether the increasing use of drafting software has legal ramifications for the protection of architectural works under the Copyright Act.[2] A recent decision by the Ontario Small Claims Court in Oakcraft Homes v Ecklund[3] may provide some important answers.
Architectural works are protected under section 3 of the Copyright Act.[4] While architecture may not instantly spring to mind when we think of works protected under the Copyright Act, it has been protected as such since it was first enacted in 1921 and came into force in 1924. Architectural work is included in the definition of artistic work and is defined in the Copyright Act as, “any building or structure or any model of a building or structure.”[5] An architect may spend months planning and designing a project, once their vision is complete, a draftsman will, at times, put their vision into technical drawings through the use of drafting software.
This post seeks to discuss the impacts of drafting software on the architectural industry, and trace the standard requirements for copyright protection to see whether architects may as a result have a more difficult time protecting their works. Originality is conceptualized as work independently created by the author and possessing at least some degree of skill and judgment. The standard of creativity has a low threshold. It does not require that the creation be novel.[6] It is possible that basic and common designs created by architects may not necessarily be protected. Resemblance will likely be found in instances where similar floor plans are used for multiple high rise condominium projects.
Defining Originality – The Requirement of Skill and Judgment
Although an architectural drawing falls within the definition of a protected work under the Copyright Act, the copyright regime requires that to be afforded protection, a work must be the expression of an exercise of skill and judgment by the author.
In the case of CCH, the Supreme Court of Canada enumerated that for copyright to subsist in a work , it must not be a copy, and it must be an exercise of skill and judgement. Skill is defined as “the use of one’s own knowledge, developed aptitude, or practiced ability in producing the work.”[7] Judgement is defined as the “use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing work.”[8] Essentially, CCH outlined that purely mechanical exercises will not be seen as sufficiently creative to merit protection under the Copyright Act.
In many instances drafting software requires an operator, technologist, or architect to input measurements, ceiling heights, and wall thicknesses. Some allow the input of algorithms to create unique curves and angles on a building.[9] While this appears as somewhat of a mechanical exercise, it does require a great deal of planning, consultation, and meticulousness on the part of the architect. The final concept or design of a building can be seen as an expression of the architect’s vision.
The existence of this software has the ability to blur the lines between mechanical exercise and creative design. If an architect has a storage bank of typical floor layouts they use for almost every similar condo project, for example, is this sufficiently creative to warrant protection under the Copyright Act? Essentially, so long as the architect does not purely reuse an existing design, they will likely meet the standard of skill and judgment required by CCH for the protection of a new work. Accordingly, in Oakcraft Homes, the architect did in fact base his design from other drawings he had done but reworked with consultation from the client to create a whole new design.[10]
The Copyright Act is meant to balance competing interests between the dissemination of works and protecting the rights of authors.[11] This is why not all subject matter of copyright will necessarily be protected.
The Oakcraft Homes Decision
In 2013, a Small Claims Court case in Ottawa dealt with whether an architectural work had been infringed. The Ecklund’s had hired an architect, Thompson, to design their home. While Thompson originally executed his design by using graph paper from a previous project and making alterations, he later sent it to a draftsman.[12] While it is unclear from the decision whether or what type of software was used by the draftsman in the creation of these drawings, the judge did provide commentary on the use of CAD software in the creation of drawings recognizing that it has become more prevalent in the industry.[13] The Ecklund’s later hired a different architectural firm who completed the final drawings by overlaying Thompson’s design and making minor alterations. One of the arguments advanced by the Ecklund’s was that the plans made by Thompson were not original because they were a common design for a home.[14] However, the evidence showed that unique aspects of the drawings done by Thompson were present in the drawings made by the new firm hired by the Ecklund’s. As such, the judge was able to determine that Thompson’s design was original. In describing the process undertaken by Thompson, the judge noted that for him, “the conception of house plans is more than simply laying out the disposition of the rooms.”[15] The architect had meticulously consulted with the clients to turn the plans he used as an underlay into something unique.
The judge, in finding that there was a copyright infringement, took the opportunity to comment on two relevant aspects when mixing architectural protection, copyright, and technology. First, Thompson created a work intellectually and conceptually designed by him and deserved copyright protection.[16] Second, sending the plans to a draftsman who “reduced it to technical standards” did not turn it into a work that was not deserving of protection. The ownership does not shift to the draftsman nor does it diminish Thompson’s claim.[17]
What should be noted is that Thompson’s intellectual exercise spanned a period of two years, where he consistently consulted with the Ecklund’s. For the architects working today it is uncertain if work created by using a “standard” floor plan without much planning or intellectual exercise would be protected. As outlined in CCH, purely mechanical exercises would likely not be protected. Although it has yet to be litigated, small changes to a prior drawing may not warrant new protection for a work.
Conclusion
Copyright cannot protect everything. Copyright is meant to strike a balance between the rights of authors to protect their works, while at the same time ensuring that the requirement of originality acts as a gateway to exclude protection of labour that is driven by functionality and physical requirements that is not an original expression. Further, a balance also needs to be struck between upholding the protection of copyright works and the foundational principle that works should be used and disseminated into the public space. In order to ensure that works are protected, architects using drafting technology should be afforded a level of protection demonstrated by exercise of skill and judgment, regardless of who reduces the work into technical standards.
[1] Interview of Novka Cosovic, M. Arch (2 April 2017). Ms. Cosovic holds a M. Arch from the University of Toronto and has worked for architectural firms and advertising agencies in Toronto. She was gracious enough to provide me with an overview of the software that she uses in her line of work. [2] RSC 1985, c C-42, s 3. [3] Oakcraft Homes Inc v Ecklund, 2013 CanLII 41981 (ON SCSM) [Oakcraft Homes]. [4] Supra note 2, s 3. [5] Ibid, s 2. [6] CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13, at para 16 [2004] 1 SCR 399 [CCH]. [7] Ibid at para 16. [8] Ibid at para 16. [9] Supra note 1. [10] Oakcraft Homes, supra note 3 at para 13. [11] Théberge v Galerie d’Art du Petit Champlain inc, 2002 SCC 34, at para 30 [2002] 2 SCR 336 [Théberge]. [12] Oakcraft Homes, supra note 3 at 18. [13] Oakcraft Homes, supra note 3 at 49. [14] Oakcraft Homes, supra note 3 at paras 6-12, 28. [15] Ibid at para 12. [16] Ibid at para 43. [17] Ibid.