Builders should be mindful when agreeing to use plans supplied by clients to construct a building.

If the plan is an “original work” copyright will apply and the right to reproduce the plan belongs to the copyright owner (usually the author unless copyright has been assigned).

If a builder uses a plan to construct a building without the copyright owner’s permission, the builder is likely to be infringing copyright. This is because the building represents a three-dimensional copy of the plan.

Today more than ever, clients can access plans they do not have permission to use; the Internet, sales and marketing materials, consultations with builders and even walkthroughs of display homes provide abundant opportunities.

Clients might be tempted to present a plan (or even their own drawing based upon a plan) to a builder in order to obtain a more competitive build price than that offered by the copyright owner or to include changes the copyright owner would not agree to make.

Where the copyright owner successfully brings an action for infringement, the court may order:

  • an injunction (for example, to direct that the builder stop doing something)
  • an account of profits or damages (for example, in a case where copyright for house plans was infringed, the court ordered payment of $10,000 to the copyright owner, being an amount equal to 25 per cent of the profit margin on the build).

Some builders wrongly believe:

  • it is safe to copy a plan as long as they change a certain percentage of the original work, or to “borrow” small parts of a plan. This is not so, and copying a small part could still breach copyright where that part is important.
  • it is safe to use plans provided by an owner as long as they do not know where they came from. This is not so and a builder who innocently infringes copyright could still be liable for an account of profits and therefore be out of pocket, even though they have not acted dishonestly.

For more information about copyright, please refer to the article “Be aware of copyright” in the June/July/August edition of Master Builder magazine.

Master Builders members with specific queries about copyright should contact the Legal Department on (03) 9411 4548.