Author: Iyar Stav, Esq.
Published in issue no. 110 of “Architecture of Israel Quarterly” http://www.aiq.co.il/
Translation: Noel Canin
A conclusion reached from the 2007 Copyright Act is that architecture is perceived, at least by the legislator, as a kind of an art. “Architectural work” counts, alongside “sculpture”, “painting” and “photography,” as various examples of the term “artistic work”. However, a deeper reading indicates that the law discriminates between architectural works and their authors, and other artistic works and, in fact, any other kind of works mentioned in the Copyright Act.
For instance, in contrast to the prohibition against copying without explicit permission, which applies to any other kind of works, anyone may copy an architectural work that is located in a public space, by means of photography, sculpture, and so forth. Likewise, the law allows the use of architectural work or its design to rehabilitate or reconstruct a building – the object of architectural work. Moreover, while copyright infringement in relation to other kinds of works allows the claimant (in many cases) the right to obtain an order to demolish illegal copies, copyright infringement of architectural work does not grant the claimant the right to obtain an order to demolish the building which infringes the claimant’s copyright.
It isn’t hard to understand why the law limits the scope of copyright with regard to buildings, let’s say in relation to sculpture or painting. After all, before the building constitutes an architectural creation, it is a useful product, a property with high economic value, and an object of interest to many factors – interests frequently perceived as stronger than those of the copyright owner. This perception has even filtered down into the courts in Israel (and the world), who tend to reject infringement claims regarding architectural work, as opposed to cases in which copying of other types of works are claimed.
Thus, as if the limited scope of copyright awarded by law to the architects as authors of the architectural works weren’t enough, in the existing framework of contracts with public bodies, architects undertake to transfer their copyright to the client and are left without protection. Thus the architect loses the advantage granted to all freelancers by current copyright legislation, which determines that the first ownership of the copyright of a commissioned work is that of the author and not the client, unless otherwise agreed.
As consolation for the architect, it should be noted that the sale of a copyright does not constitute the loss of moral right in a work. After all, this right is personal and cannot be transferred, requiring that credit be granted to the author “to the extent that is appropriate for the circumstances of the case” and may, in certain circumstances, give them the right to protect the work from significant change that could damage the author’s dignity or reputation.
Similarly to copyright, the validity of the moral right is limited to 70 years from the death of an author, and, being the architect’s last line of defense, it constitutes a bone of contention in most legal disputes regarding architectural works.
However, as in the case of Attia versus the Tel Aviv Municipality, in a precedent ruling dealing with the moral right of the architect who designed the original plans for the Azrieli Center in Tel Aviv, even this line of defense could be fragile, since though the moral right cannot be transferred, apparently it can be waived.
If so, at least in relation to those architects who did not waive their moral right, the question that arises in the courts again and again relates to the scope of this right; under what circumstances and to what extent can an architect prevent (or at least receive compensation for) changes in his architectural work by someone who was hired to complement, improve, or change the original plan? Or – under which circumstances and conditions may such changes be carried out?
When such a question was legally tested, the courts did recognize the moral right of the architect but in many cases ruled that despite the changes carried out in the architectural work, the moral right of the architect was not harmed.
This concept is probably embedded in the preference of the property owner who has the right to the expectation of “doing with it as he pleases, adapting it to his needs and changing taste over time. He does not have to turn to the same architect and is not bound by the concept that birthed the original work.” So, for instance, it was determined that the addition of a floor to a building does not constitute a moral right infringement, because, inter alia, it’s a “reasonable action under the circumstances” as determined by law. But not in every case: in the matter of Tau versus the Technion, it was determined that an addition to the building that would cover the creative characteristics of the original façade, would constitute an infringement of the moral right of the architect as the original designer of the building.
In contrast, the recent ruling on Cecilia Keidar versus the Hebrew University relates to an architectural work still in the planning stages, but presents a narrow approach to the architect’s rights that might have wide implications related to the court’s perception of copyright in architectural works. The University hired the architect to design a museum inside an existing building. In the course of early planning stages, the University fired the architect, although she’d already prepared 44 preliminary sketches, hiring another architect to complete her work.
The sketches, including computer simulations, suggested various solutions for division of space, among these the location of the control center, openings and details of finishing materials and colors and, the formulation of a creative interpretation of historical and cultural sources of the museum’s content.
The court, who related to the sketches, determined that they did not meet the minimum level of creativity required for copyright protection. They argued that “the design of a building (or interior design) is insufficient to be regarded as a creative work, and that an artistic-original feature is needed, the brainchild of the work’s author.”
That is, as far as functional planning of division of space is concerned, as opposed to detailed and complete plans expressive of an architect’s creative mind, the plans do not get copyright protection because the law protects actual expression of ideas, but not the ideas themselves.
As customary, the contract between the architect and the university stated that the university owns creative rights to the plans, but the existence or non-existence of copyright have a direct bearing on the existence of moral right, as the law determines that if there is no copyright, it follows that there is no moral right.
As mentioned, in contrast to copyright ownership, ownership of moral right cannot be transferred, thus if an architect transfers his copyright, he is still entitled to get credit for his work and to protect the integrity of his work, but in Keidar’s case, since there was no copyright protection in plans she’d done, it follows that she had no moral right to them.
Despite not having moral right in the plans, the court related to Keidar’s claim concerning compromising the integrity of the plans, determining that the structural changes made to them “do not constitute harm to the nature of the creative work or its quality, and do not harm Keidar’s dignity or good name in a way that gives her right to compensation for moral right infringement.”
Fortunately for Keidar, she had the sense to include a clause in her contract that requires the university to give her credit for her contribution to the project. This clause in fact provided “through the back door” a contractual right equivalent to the moral right, and once this right was violated, she was awarded compensation and an order that required the university to add her name as a participant in the project.
This verdict did bring about a desired result with regard to the architect, but its statement in relation to architects’ copyrights is likely to resonate in similar cases in the future. It is doubtful if a ruling like this would have been accepted with regard to other kinds of artistic works, since – as determined in the case Interlego A/S versus Exin-Line Bros S.A – for a work to meet the requirement of originality, all that is required from its author is that it meet the minimal level of labor and minimal level creativity.
It would appear that this ruling also stems from pragmatic considerations connected to multiple interests in the property, the object of architectural work and the desire to avoid affinity between an architect and a particular property at early planning stages, and to give the property owner the flexibility that would enable him to replace the architect in the course of the planning process. Thus, these considerations to a certain extent justify a restriction on the moral right of the architect involved in the first stages of planning a project, but clearly, in this case, the result is far-reaching.
It should be noted, that in comparison with other countries in the world, Israel is situated in the middle of the scale in terms of the intensity of protection over the architect’s moral right. Interestingly, the United States Copyright Law does not grant moral right to the author of an architectural right at all, and in fact, only a short list of “visual works of art” are provided with a moral right similar to the one exists in Israel. The US Law further provides that an owner of a property can make any change they desire in a structure including its demolition, without requiring the consent of the architect that planned it. On the other hand, the copyright protection regime in Europe properly protects the architect’s moral right, similarly to other author’s moral rights, and even gives priority to the right of the architect over the rights of the owner of the property.
It is reasonable to assume that in Israel as well as in the rest of the world, the conflict of interests between those two parties shall keep occupying the courts.
Therefore, in light of this ruling and its possible negative implications for protecting the copyrights of architects in similar situations in the future, it would appear that instead of non-guaranteed copyright protection, the way to protect architects’ copyrights is by means of a contract with the client, similarly to the case described in the ruling.