Assignment of copyright on development plans: easily forgotten but potentially problematic

Before you develop the land according to the permission, make sure that you will not infringe the copyright of the person who drew up the plans or of the person who engaged him to do so.

The potential to breach copyright was highlighted in the case of Signature Realty Limited v Fortis Developments Limited and others. 

Signature was interested in buying a site in Sheffield, so it engaged an architect to prepare drawings that were used as part of an application for planning permission to develop the site into residential flats. 

However, Fortis beat Signature in the race to buy the site, and by the time Fortis had bought it, Signature’s planning application had been approved.

Fortis downloaded from Sheffield City Council’s planning website copies of the approved planning application drawings and sued them for infringing their copyright in the drawings by undertaking the development of the site pursuant to the planning consent.

Signature had bought the copyright in the approved drawings from the architect and therefore issued court proceedings against Fortis for infringement of its copyright in them.

The court found that Fortis had infringed Signature’s copyright in the design drawings. The issue of how much Fortis will have to pay Signature for infringement of its copyright has yet to be determined by the court if the parties cannot agree on this. 

Under section 97(2) of the Copyright, Designs and Patents Act 1988, a court can award exemplary damages in respect of flagrant infringement of copyright and having regard to the benefit accruing to the defendant from the infringement. 

A court can also award an injunction prohibiting the development being carried out in infringement of the copyright. 

Although the High Court, in the case of Signature v Fortis, declined to award exemplary damages or an injunction, each case has to be determined on its own merits. Developers need to be aware of the risk of a court awarding substantial additional damages and/or an injunction prohibiting the development from going ahead in breach of the copyright.

Therefore, if buying a site with the benefit of planning permission obtained by another, a developer should, before using the approved planning application drawings (and indeed any reports submitted with the planning application), first find out in whom the copyright is vested (it could be the authors of the drawings or reports, or it could be the person who commissioned them) and then seek from those persons a licence to copy and use the drawings or reports for the purposes of the development (Copyright Licence). 

In our experience, if a request for a Copyright Licence is made before using the drawings or reports, it will usually be forthcoming for a nominal or no fee. 

However, starting to use the drawings or reports without first requesting a Copyright Licence could provoke the authors of the drawings or reports into taking legal action and demanding substantial financial compensation for copyright infringement. 

Worse still, they could seek an injunction restraining the development from being carried out altogether.

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