4 steps to heaven

You might be forgiven for thinking that purchasing all the copyrights to a construction design gives you free rein to alter the building. The sad truth of the matter is that in Poland the architect is in a strong position to scupper your best-laid plans

Let’s imagine a situation where a company plans to branch out and must, for example, enlarge the floorspace or modify the structure of its buildings. Or perhaps put yourself in the shoes of a builder who needs to adjust the layout of a building currently under construction to meet the demands of a new business strategy. These all require changes to the original architect’s plans. A straightforward matter, surely?

Alas no. Entrepreneurs are not always free to make modifications to their buildings even though they actually own all the copyrights to the construction design. The general rule is that the architect has to give consent.

The letter of the law

This all has its roots in the Polish Copyright Act. Under this Act, even a purchaser who has bought all the copyrights has his hands tied when wanting to alter the building, as he needs the consent of the architect to change the original construction design. To counterbalance the situation, two conditions allow for changes to be made without the architect’s consent.

First, the purchaser is free to make changes to the architect’s plans if they arise from “clear necessity” (oczywista konieczność). Second, the architect must have no just reason to oppose them (brak słusznej podstawy sprzeciwu). Do bear in mind that both conditions must be met simultaneously.

Four things to do

The first condition is that of ‘clear necessity’. In terms of the architect’s plans, any statement of the existence of the first condition depends very often on a factual or even technical evaluation of the need. It is frequently stated that clear necessity generally concerns the correction of calculation errors and blatant errors concerning facts, but also extends to the need to make alterations as reported by the site manager during construction works or other strictly technical reasons. The other example regards the situation when the architect’s plans may infringe someone else’s rights.

The second condition is that of ‘just reason to oppose changes’. If the designer transfers all his copyrights to the constructor, any just reason to oppose changes can regard only the protection of the architect’s personal rights, which are inalienable. Among those personal rights, the key one in this case is the right to the integrity of the author’s work.

Nevertheless, protection of the integrity of the work (termed by the Copyright Act: “the right to the inviolability of the content and the form of the work” – “prawo do nienaruszalności treści i formy utworu”) is not an absolute and there is a legal way to restrict its impact. Court decisions demonstrate that the integrity of a work may be protected if the alterations made to it “(…) remove or infringe a bond between the work and the characteristic features individualizing its author. Slight changes to content and form which do not remove the attribution of the work, do not infringe the right to the integrity of the work” (Court of Appeal, Cracow, October 29, 1997 – I ACa 477/97).

Is it art?

Thirdly, the ‘specific nature of the architect’s plans’ has to be taken into account. A distinction must be drawn between ‘work’ understood in a very traditional way (here ‘work’ refers mainly to ‘art’) and ‘work’ such as construction designs, whose main goals are functionality and meeting the needs of the professional purchaser of the copyrights, and the users of the structure. The same problem also affects changes to the design of an already existing building.

In fact, although you might think the condition of clear necessity is difficult to fulfill, it is actually much easier to identify it in the case of a construction design than when dealing with a piece of art in the traditional sense. With a construction design we can always search for clear necessity among the factual, technical or legal circumstances. For instance, it can be readily understood that sometimes a need to make changes may be brought about by changes in legislation. This is why when it comes to an evaluation of the obvious nature of the necessity to make changes, the specific nature and utility of the work must be taken into account. Moreover, the very nature of the subject matter may lend weight to the argument against the designer’s claims for protection of his rights.

The final condition concerns the ‘adaptation of the construction design’. If adjustments to a project are far-reaching, particularly if the construction design might be viewed as a new design, albeit heavily influenced by the old one, the work may be treated as an adaptation of a construction design. In the light of the Copyright Act, adapting someone else’s work does not require the consent of the author, but using it needs the author’s consent. The ‘right of consent’ to use any kind of adaptation of the work is not transferred to the purchaser even if he buys all the copyrights. But there is a way around this – you can insert an additional clause in the purchase agreement to effect a transfer of the “right of consent” to the purchaser.

At your own peril

When it comes to changing an architect’s plans you are entering a minefield – even if you have bought up the copyrights. It is a complicated area  as multiple factors have to be assessed in every single case. It is almost impossible to give an answer without in-depth knowledge of the exact circumstances.

However, in the common opinion of jurisprudence, the architect’s plans are easier to adjust to the needs of the purchaser, and may be changed on occasion without the consent of the author, than in other cases where modifications of someone else’s works are an issue. Nevertheless, the Polish legal system still gives strong support to the architect as an author. Since it is the only way to avoid future problems, it is extremely important to have a professionally prepared copyright transfer agreement. ν 
Ewa Kacperek, Piotr Zawadzki, Salans