The Copyright and Related Rights Act protects the adopted architectural projects. The author has the rights to:
- Request the recognition of his authorship on the project;
- Request the preservation of the integrity of the project;
- Oppose any alterations in the project, as well as any other action that might violate his legitimate interests or his dignity;
- Changes the project if it does not infringe the rights acquired by others.
A common cause for dispute between investors and designers is the subsequent changes in investment projects already approved. Alteration of an architectural project is the adaptation or use of it to create a new project and make any changes to it.
These changes are often necessary in the course of construction at the request of apartment buyers who require changes to an apartment they want to buy, including major changes – such as merging of apartments, changing the layout of the premises, alterations of the structural design and others.
The business relations between an investor and a designer are regulated through a design contract or by a separate contract that regulates only the intellectual property rights of the architectural project approved.
1. Project design contract
The transfer of the right to use the project may be agreed upon in the project design contract, including the right to modify the project under certain conditions. The parties may impose additional conditions of use or limit the right to use to certain actions.
The law provides for an opportunity for the parties to agree on exclusive or non-exclusive use of the project. If the agreed right to use is non-exclusive, the author may not use it by himself, as well as assign a non-exclusive right to the same work to third parties. The exclusive right of use shall be agreed explicitly and in writing.
In view of the above, investors who do not want their buildings to be replicated and their design preserved should agree the transfer of the exclusive right to use the respective architectural project.
Unless the Parties agree otherwise, it is considered that the investor is granted a non-exclusive right to use the project. This means that, if a certain amendment is required, his consent should be sought.
2. Author’s supervision
The design is carried out based on a contract between the designer and the investor. According to the requirements of the Spatial Planning Act, the designer who has prepared the project should carry out supervision in the course of construction. The author’s supervision is the supervision of the conformity of the completed construction works with the approved project.
In the course of the author’s supervision, the designer may change the project, at the request of the investor, including those which require the preparation of additional drawings. Often during the author’s supervision, the designers work out the details (the works that are traditionally part of the work design) in the execution of the construction and installation works. As the volume of the designer’s engagement may not be assessed beforehand, it is a common practice in this case to negotiate hourly remuneration.
If the investor wants a third party to carry out supervision, it should be agreed upon in the initial project design contract. If the investor takes into account, these circumstances at an earlier time significant material damages may be avoided.
3. Alterations of projects in the course of construction
Changes, which do not qualify as significant under the provisions of the Spatial Planning Act shall apply to the approved design and shall be carried out by the designer who has approved the projects during the author’s supervision. The final set of documents for the building contains a complete set of drawings for the actual construction and installation works. It shоuld be endorsed by the designer and the company exercising construction supervision and approved by the official who issued the building permit. This documentation represents is an integral part of the issued building permit.
As far as intellectual property rights are concerned, the investor should agree with the designer the right to engage a third party to perform the author’s supervision and to carry out/sign the final drawings accordingly. If there is no such agreement, the investor has no right to enter into such a contract with a third party.
If the person exercising the author’s supervision is in breach of the contract, then the investor has the right to terminate it and to seek compensation. As far as no one can derive rights from their unlawful conduct, the investor could, in that situation, conclude a contract for the award of the author’s supervision to a third party other than the original designer, even if there was no provision in that regard for their contract.
4. Substantial changes in the course of construction
Investors may change their initial idea and business intent after approval of investment projects or during construction. In these cases, if the amendment is substantial within the meaning given in art. 154 of the Spatial planning act, they should obtain the approval of the designer and request a change of the building permit.
5. Illegal administrative practices
In the course of the amendment under art. 154 SDA, the administration often requires the delivery of a notarized declaration by the original designer in case the change in the project carried out by another designer, regardless concluded agreement and the transfer of the right of use and change of the project. The argument they use is an order of the Minister of Regional Development from 2007, which determines what documents are required in the procedure under art. 154 SDA. This order has lost its legal power after entry into force of the Copyright and Related Rights Act in 2011. This order should not apply, notwithstanding that it has not been expressly annulled
6. What should be negotiated?
The specific arrangements that we would advise our clients to include in their contracts differ based on their goals. Designers often require a higher compensation in case the transfer of the intellectual property rights is required, as this is a resource that can be used for subsequent design. In any case, we would advise investors to explicitly agree on the right to use the projects, including to outsource the author’s supervision to third parties and to make substantial and non-essential changes within the meaning of art. 154.