Copyright is a relationship between the work and the author, which is based on the fact of creation. However, in the case of large-scale architectural design projects, the creation of plans is usually the coordinated work of an entire team. Nevertheless, in many cases, only one or a few persons are identified as authors. In our article, we analyse the issue of authorship in relation to multi-participant architectural design projects.
„Smartlegal Schmidt&Partners reports from Hungary:
- Subject of Copyright Protection: The Work
Under the Hungarian Copyright Act[1], all works of literature, science, and art are subject to copyright protection. The legislation explicitly names “architectural works and plans thereof” among the types of works eligible for protection[2].
Copyright protects the “architectural creation”, which is an intellectual idea, the design, model, and constructed building all reflect this idea, and as such, all are protected by copyright. The concept of architectural work is therefore encompassing both the design and the completed building[3].
In general, it can be established that all types of designs are eligible for copyright protection if they meet the statutory requirements[4]. These requirements are essentially as follows:
- Level of detail in the designs
The architectural design must go beyond the level of an abstract idea and achieve the level of a creation in terms of detail (ie. the fundamental characteristics of the structure are defined). Depending on their content, initial designs, visualizations, concept designs, sketches, and feasibility studies may all enjoy copyright protection[5].
According to the Council of Copyright Experts (SZJSZT), a visualization related to architectural creations generally does not yet reflect the individual and original solutions of spatial design and therefore does not qualify for protection as an architectural work but as a graphic work instead[6].
- Individual and original nature of designs
An architectural creation represents the individual and original solutions of spatial design[7].
Architectural works are primarily granted copyright protection due to their artistic or scientific nature. If an architectural creation or its design lacks individuality and originality because, for example, the designer focuses primarily on technical solutions or the implementation of a supporting structure, copyright protection cannot be established[8].
Thus, architectural creations and their designs are only eligible for copyright protection if they exhibit individuality and originality, along with creative intellectual input in spatial design, even though the designer has less freedom compared to other artistic fields due to the laws of physics and mandatory technical regulations[9].
Deciding this in a lawsuit is a technical issue falling within the competence of the Council of Copyright Experts.
- Holder of Copyright: The Author
- Basic Rules of Authorship
The author is the person who created the work. The creator of the work (and the holder of moral rights) can only be a natural person.[10]
Authorship is a factual relationship between the author and the work; authorship can only arise from the de facto of creating the work.
Consequently, authorship cannot be established through an agreement or by attribution on the work or its design[11].
- Multi-participant Design projects
If a design or building results from the technical planning of multiple authors, and the work effectively combines and unites the outcomes of the various phases, it is considered a collective work. Such collective works, created jointly or cooperatively by multiple authors, cannot be used independently, and the contributions of individual creators to the design process cannot be clearly separated from one another. Due to the unique characteristics of the design process, this collective effort forges the design into a unified whole.[12]
The above does not mean that everyone involved in the preparation of architectural design documentation qualifies as an author. Authorship can only be attributed to those whose activities contribute to the creation of the artistic work.
in the case of architectural creations, among the professionals involved, only those contributing to spatial design can be considered authors[13]. This includes individuals whose contributions individually and originally influenced:
– the spatial design of the building;
– the essential architectural determinations, technical and aesthetic elements that define the directions of the construction process.
Determining this in a lawsuit is a technical issue falling within the competence of the Council of Copyright Experts.
- Presumptions, procedural aspects
Under the Copyright Act, until proven otherwise, the person whose name is indicated as such in the customary manner on the work shall be considered the author.[14]
The legal effect of the presumption is that the court is obliged to accept the presumed fact as true until the opposing party rebuts the presumption, i.e., proves that the presumed fact does not exist.
Furthermore, in legal practice,
- in general (but not necessarily), the architect is considered the author of architectural works.
- there is generally a presumption in favor of the authorship of lead designers[15], which is based on the division of tasks outlined in the design contract and the rules of the chamber.
- Conclusion
It can be established that architectural works and plans thereof may be eligible for copyright protection. Although, based on architectural practice, the leading designers are also considered the authors of the architectural work, if the creative process was carried out by other or additional persons, these persons may (also) be considered the author of the work.
If the creation of the plans is the result of the cooperation of a team, the persons whose individual, original contribution influenced the spatial design may be considered authors. Determining this in a lawsuit is a technical issue which, in Hungary, must fall within the competence of the Council of Copyright Experts.
The article was written by dr. Gritta Péter
SMARTLEGAL is a team of agile business & litigation lawyers in Budapest, Hungary, helping international corporate clients and individual entrepreneurs doing business in Hungary. For more information please visit our website at smartlegal.hu
[1] Act LXXVI of 1999 on Copyright (“Copyright Act”)
[2] Art. 1 (2) k) of the Copyright Act
[3] Council of Copyright Experts Opinion No. SZJSZT 15/2010.; SZJSZT 11/2003
[4] Council of Copyright Experts Opinion No SZJSZT 09/08/1.
[5] Barta Judit: A szerzői jogok, közelebbről az építészeti és műszaki alkotásokhoz, valamint terveikhez fűződő szerzői jogok megsértése a büntetőjog szemszögéből. In: MISKOLCI JOGI SZEMLE 14. évfolyam (2019) 2. különszám 1. kötet
[6] Council of Copyright Experts Opinion No. SZJSZT 28/2001/1-2
[7] Nagykommentár a szerzői jogról szóló 1999. évi LXXVI. törvényhez. editor: Gyertyánfy Péter (Wolters Kluwer) (“Commentary”)
[8] Bakos Kitti: Az építészeti alkotások szerzői jogi felhasználása. In: Acta Universitatis Szegediensis : forum : publicationes doctorandorum juridicorum, pp. 27-49. (2011) p 32.
[9] Council of Copyright Experts Opinion No. SZJSZT 38/2001
[10] Art 4. of the Copyright Act
[11] These methods can at most create a presumption of authorship, which, however, can be rebutted.
[12] BAKOS p. 35.
[13] Commentary, see at the commentary of Art. 67 of the Act.
[14] Art. 94/B. of the Copyright Act
[15] The lead designer is the person who bears actual responsibility under the Construction Act, i.e., the who signs the plans as the lead designer