Rectification works and other design changes: Could they breach the moral rights of the building designer? - Construction & Planning

In the wake of the catastrophic Grenfell Tower fire in London and the Lacrosse fire in Melbourne, the NSW Government moved quickly to pass legislation to identify and collect information on buildings impacted by external combustible cladding.

The result of this was the Cladding Regulation register, which required owners of affected buildings to register with the State Government prior to 22 February 2019.

To date, 4127 buildings have been impacted in NSW.¹ With the deadline for registration now passed, many owners and strata managers have begun the arduous task of removing non-compliant cladding materials. However, these rectification works could be creating further issues for building owners – depending on the extent of the changes made to the building, they may be in breach of the moral rights of building's designer.

In Australia, buildings and models of buildings are given copyright protection as artistic works under the Copyright Act 1968 (Cth) (Copyright Act).² This means that designers of these works have a number of economic and moral rights in relation to their work. Economic rights, which allow the designer to commercially exploit their work, attach to the work itself and can therefore be transferred to another individual or organisation.

However, moral rights, which relate to how the work is attributed, presented or otherwise treated, attach to the individual designer.³Among other moral rights, building designers have the right of integrity of authorship, which is the right not to have their work subjected to derogatory treatment.⁴ As we discuss in further detail later in this article, the availability of remedies for breach of this right may be triggered by making changes to the design of a constructed building.

However, the Copyright Act provides a number of exceptions to would-be breaches of moral rights. In particular, rectification works like the removal of cladding may not be taken to breach the designer's moral rights if it can be established that such treatment was reasonable in all the circumstances.⁵ Matters to be taken into account in this instance include:

the nature of the work, the purpose for which, and manner and context in which, the work is used;
any relevant practices in the industry in which the work is used;
whether the work was made in the course of employment or under a contract for the performance of the designer's services; and
whether the treatment was required by law or was necessary to avoid a breach of law.⁶

Building owners carrying out rectification works may also avoid (or minimise the likelihood of) breaching the building designer's right of integrity if they provide prior written notice to the designer regarding their intention to change the building and allow him or her access to the building to make a record of the work or consult with the building owner about the change.⁷

In circumstances where exceptions to infringement under the Copyright Act do not apply, building owners may need to think about whether their actions constitute derogatory treatment. For example, building owners may take the requirement to carry out rectification works as an opportunity to assess their commercial needs and perform a more extensive re-design of the building. The test for ‘derogatory treatment' of an artistic work is twofold – first, there must be a treatment of the work (or, in other words, an act done in relation to the work) and second, this must result in prejudice to the designer's honour or reputation.⁸

In relation to artistic works, the Copyright Act sets out three types of actions that are considered derogatory treatment, including (relevantly in this case) anything that results in a material distortion of, the destruction or mutilation of, or a material alteration to, the work.⁹ The Act also includes a ‘catch all', being ‘the doing of anything else in relation to the work that is prejudicial to the [designer's] honour or reputation'.¹⁰ Certainly making changes to the physical appearance of a building could be considered the doing of ‘anything else', if not a material alteration to the work.

Whether such an act would be considered to result in prejudice to the designer's honour or reputation is less clear cut however. Australian legal commentators have differing opinions on the definitional considerations associated with ‘honour' and ‘reputation' and how much weight (if any) should be attributed to the subjective concerns of designers.¹¹ Unfortunately there is limited Australian case law on moral rights to help resolve the confusion, with only one case, Perez v Fernandez [2012] FMCA 2, considering the right of integrity.¹² Some commentators have advocated for the application of the test used in defamation law – that is, whether the imputation lowers the plaintiff in the estimation of an appreciable and reputable section of the community, even if there is no such lowering within the community generally. In this regard, building designers may be able to establish damage to their reputation in the construction industry, even if there is no adverse reaction from the general public.

While moral rights cannot be alienated from individual creators in the same way as economic rights, under Australian copyright law designers can consent to the doing of certain acts in connection with their work which would otherwise infringe their moral rights.¹³ This is why many modern Design and Construct contracts include clauses of this nature. Importantly, this consent will not have any effect unless it is given in relation to specified acts or omissions, or specified classes of acts or omissions, and in relation to a specified work.¹⁴ In the event consent is given before construction of the building takes place, the Act clarifies that consent can be given in relation to works of a particular description, even if ‘the making of which has not begun' or is ‘in the course of being made'.¹⁵

Key takeaways

If building owners are considering making changes to buildings due to rectification works or for commercial reasons, the moral rights of the building's designer should always be considered.

Although the Copyright Act provides a number of exceptions to acts that would otherwise infringe an individual's moral rights, these concepts have not been thoroughly tested in Australian courts.

If building owners are found to be in breach of the building designer's moral rights, the designer will be entitled to seek a number of remedies in court including financial compensation, injunctions, a declaration that the designer's moral right has been infringed, an order that the building owner make a public apology, or an order that the derogatory treatment be removed or reversed.¹⁶

Footnotes

¹ Available here.

² Copyright Act 1968 (Cth) ss 10, 32(1).

³ Copyright Act 1968 (Cth) s 140.

^<4 Copyright Act 1968 (Cth) s 195AI.

⁵ Copyright Act 1968 (Cth) s 195AS(1).

⁶ Copyright Act 1968 (Cth) s 195AS(2).

⁷ Copyright Act 1968 (Cth) s 195AT; this process must be carried out in accordance with the regulations and applies in the context of the changes to, or the relocation, demolition or destruction of, a building.

⁸ Copyright Act 1968 (Cth) s 195AK.

⁹ Copyright Act 1968 (Cth) s 195AK(a).

¹⁰ Copyright Act 1968 (Cth) s 195AK(b).

¹¹ See, for example, Jani McCutcheon, ‘Perez v Fernandez: Australia's First Decision on the Moral Right of Integrity' (2013) 23 Australian Intellectual Property Journal 174; Patricia Loughlan, ‘The Right of Integrity: What is in that Word Honour? What is in that Word Reputation?' (2001) 12 Australian Intellectual Property Journal 189.

¹² (2012) 260 FLR 1.

¹³ Copyright Act 1968 (Cth) s AWA.

¹⁴ Copyright Act 1968 (Cth) s 195AWA(3)(a).

¹⁵ Copyright Act 1968 (Cth) s 195AWA(3)(b)(ii).

¹⁶ Copyright Act 1968 (Cth) s 195AZA.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.