Partner Katja Wigham, in our Commercial Property team, warns property developers when buying land for development not to assume that publicly available documents and plans can be used freely.
A case reported in February 2017 in the context of land purchased with the benefit of planning permission shows how easy it is to inadvertently infringe copyright and highlights the importance of considering at an early stage what rights there may be and how these should be dealt with.
In Signature Realty Limited v Fortis Developments Limited & others [2016] EWHC 3583 (Ch), the High Court found that a developer who had purchased property with the benefit of planning permission did not have the rights to use drawings prepared by the architects which had accompanied the planning application.
Signature Realty Limited (“Signature”) was a property development company which commissioned an architect to prepare design drawings in relation to a site in Sheffield city centre which it considered suitable for development into a block of flats for student accommodation. However Signature was subsequently unable to raise finance and as a result was not in a position to complete on the purchase. The seller’s agents found another buyer, Fortis Developments Limited (“Fortis”) who in due course purchased of the property with the benefit of planning permission on terms that the development was to be carried out in accordance with the drawings which it had obtained from the local authority’s planning portal.
Fortis then commissioned its own architects to produce drawings that complied with the planning permission. Following Fortis’ purchase of the site, the original architects assigned the copyright in the drawings to Signature (the original intended purchasers) to enable them to bring a claim against Fortis for infringement of copyright. The High Court held that in the new drawings commissioned by Fortis parts of the original drawings had been copied and had been used for marketing and 'off plan' purchases. It held that Fortis had no right, implied or otherwise to use the drawings, and in doing so had breached the architect’s copyright in the design. Damages were awarded.
The lesson here is that simply because documents are publicly available does not mean they are freely available for use. A buyer should take an assignment of the rights or enter into a licence with the copyright holder to use the documents. This should all be dealt with and negotiated at the pre-exchange stage. An alternative option is for developers to commission their own architects to produce a new set of drawings but if they go down that route they will need to ensure that the new drawings are sufficiently different from the original drawings so as not to infringe copyright.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
