The High Court has found that copyright in an architect’s drawings was infringed in a case where the claimant property developer who obtained the planning permission was not the developer who built the building. The case demonstrates the tricky line between benefiting from a planning permission attached to land and avoiding infringing copyright in the drawings that form the basis for that permission where the development is not carried out by the party who obtained the planning permission.
The claimant, a property developer, obtained planning permission for a block of student flats in Sheffield city centre on the basis of the drawings of its architect (C&W) but was unable to secure finance to buy the site and complete the project. The site was subsequently sold to the defendants.
The planning permission was granted on condition that the development was carried out in complete accordance with the C&W drawings. The drawings were published on the Sheffield Planning Portal with a copyright notice that limited their use to consultation purposes, for comparing current applications with previous schemes and for checking whether developments had been completed in accordance with approved plans.
The judge pointed out that there is no statutory or intellectual property right in planning permission. The permission relates to the land and anyone may avail of it so long as they satisfy its conditions.
The judge ruled that copyright did subsist in the C&W drawings despite arguments by the defendant that the claimant’s drawings were based on a previous set of drawings, were dictated to some extent by the shape of the building and the position of the lift shafts and stairs and that the remaining divisions of the space were entirely commonplace, logical and utilitarian. The bar for the subsistence of copyright was not high.
He also ruled that, although the defendants had engaged their own architect, there had been some instances of infringement in their use of the C&W drawings. The defendants had used the C&W drawings for marketing or architect/tendering/estimating purposes, to make AutoCAD versions (they would have had to make their own measurements but would have relied on the copyright materials because they had to comply with the planning permission), and to make a number of “As Built” drawings.
Section 97(2) of the Copyright, Designs and Patents Act 1988 provides that a court may award additional damages in particular having regard to the flagrancy of the infringement and any benefit accruing to the defendant by reason of the infringement. The judge did not assess quantum, but ruled that additional damages under section 97(2) of the CDPA could not be awarded. There had been no instances of flagrant use and it was not clear that the benefit gained by the defendant had been a result of the copyright infringement as distinct from the planning permission. He also refused to grant an injunction despite the fact that a few remaining promotional pictures remained on the internet. The building had been sold and neither party had a continuing interest in the drawings.
Signature Realty Ltd v Fortis Developments Ltd and another  EWHC 3583 (Ch), 17 February 2017 (Bailii).
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