How can a designer protect his project
In everyday speech we often use such words as “Khrushchyovka” “Brezhnevka”, “Stalinka” and can imagine, what kind of house is discussed just from that name. Or from an announcement with an offer of a Smart-apartment one can understand what kind of premises is in question. That is, there are some typical designs of houses and apartments, which have become recognizable and are used by different construction companies. However, each of these projects has the original source. Can one protect his project and how it can be done?
The article 1225 of the Civil Code of the Russian Federation (CC RF) provides the full list of secured intellectual property. Useful models, inventions and industrial prototype, as well as that, what in the Law is named as “works of science, literature and art” – all these can be of interest to us.
Timely protection of rights to a house or apartment project under design will minimize a risk of claims by third parties, as well as restrict the ability to copy created objects.
Thus, the following areas for discussion can be defined: Patent rights and Copyrights.
As mentioned above, some results of a construction design work can be protected by patents. These can be useful models, inventions and industrial prototypes.
Technical solution that refers to a device is protected as a useful model. On the website of Rospatent (Federal Service for Intellectual Property, Patents and Trademarks), in the Open Registries section, we can find patents for useful models No.137317, 145606, 126354, 125605, 124272, 115805, 93109, 84893, 105335 and others that protect design features of residential complexes. All these patents were obtained before the amendments to the CC RF. When registering them, an expert appraisal was not carried out, and the patents were obtained in the declarative manner. As of today, the requirements for useful models became tougher, but a range of solutions compliant with the established requirements can be protected by a useful model patent.
Appearance of a piece of industrial or handicraft production is protected as an industrial prototype. An industrial prototype is granted with a legal protection, if it is new and original by its essential characteristics. The previous version of the Law contained the exception that the protection is not provided for the objects of architecture (apart from small architectural forms), industrial, hydrotechnical and other fixed installations. The current version of the CC RF does not contain this exception. Therefore, appearance can be protected by a patent for an industrial prototype. The patent No.94620 “Modular Kindergarten Building”, which can also be found in the open registries on the Rospatent website, can be given as an example.
A technical solution in any area that relates to a product (device, substance, microorganism strain, culture of cells of plants or animals) or method (process of activity with a material object using material means), the use of product or method for a particular purpose, can be protected as the invention.
And the following inventions No.2369695, 2510446, 2281365, as well as previously mentioned patents can be seen as an example on the Rospatent website.
As an example of a legal proceeding, the proceeding of infringement of rights of the Federal State Budgetary Educational Institution of Higher Professional Education “State University — teaching, research and production complex” can be reviewed. This institution is the owner of the patent for the invention No.2281365 “Building made of prefabricated elements”, as well as the patent No.2275477 for the invention “Grating element of wall fence”. In 2010, the company “Orelproekt” designed a residential building, at the same time there had been violations of these patents, which was established in the course of legal proceedings. The judgement in a case No.A48-47/2012 can be found in the legal systems.
Resuming, we recommend when starting new projects to define objects that can be protected by patents and at least to carry out the necessary research to ensure that the use of such solutions in the construction of a facility will not infringe rights of third parties. If there is a possibility of copying, and a created solution is new, represents a particular value and will be used by you on other facilities, it is advisable to contact experts for patent execution.
Now we move to the second part, namely to the copyright issues. Let’s refer to the Federal Law “On Architectural Activities in the Russian Federation”, according to which architectural activity is a professional activity of citizens (architects), which is aimed at creation of an architectural object and includes creative process of creation of an architectural project. That is, the design documentation can serve as a protected result of the intellectual property.
The disputes as for infringement of exclusive rights ceased to be rare long time ago, also in the field of construction. For example, the case No.A11-1371/2008 K1-15/122. The “Stroyproekt” LLC applied to the Arbitration Court in Vladimir region with a claim to “SK Evrika” LLC regarding the recognition of exclusive rights to the architectural design – design and engineering documentation for two residential buildings, recognition of the right to conduct designer’s supervision, compensation for copyright infringement in double amount of the cost of the disputed documents, which comprised RUR12,564,610.
The requirements are motivated by the fact that the Defendant illegally uses the architectural project, which exclusive copyright is owned by the Plaintiff.
Let’s find out, who can be a designer and what is protected by the copyright.
A designer is always an individual, which created some piece of work as a result of his/her creative work. He owns personal non-property rights and exclusive rights (property rights) to use a piece of work in any form and in any manner not inconsistent with the law. If a piece of work is created by several individuals, this is a joint authorship.
The copyright extends to works of science, literature and art, provided that 1) they are the result of creative activity, 2) they exist in any objective form.
The copyright arises for the designer of a piece of work due to the fact of its creation and does not require registration or other special execution.
Let’s stop on consideration of exclusive rights belonging to the designer. The designer’s rights to the work of architecture are regulated by Art. 1294 of the CC RF. The designer of a work of architecture, town-planning or landscape art has an exclusive right to use his/her work. The scope of the exclusive rights to results of work is described in Art. 1270 of the CC RF.
Subjects of copyright are also persons who have an exclusive right to work, which they obtained from a designer on various grounds (under the law or the contract). These possessors of rights can be enterprises, employers, customers, heirs of the designer, other persons.
With regard to an architectural project, possessors of rights and a designer most often are not one and the same person.
Typically, the development of an architectural project is a service product, i.e. creation of an object of copyright is a designer’s duty.
In this case, employer’s right to such a work is restricted by the right of the designer to supervise and participate in implementation of an architectural project. A designer of an accepted architectural project is entitled to demand from a Customer to provide a right to participate in the implementation of the project at the stage of construction documentation development and construction of a building or structure, unless otherwise stipulated in a contract (Art. 1294 CC RF).
Even creation of an object of copyright as a part of a job performance does not exclude the need for preparation and legalization of documentation and duty assignment. It is necessary at least to make sure that job duties of an employee really include project development. An author/designer shall get a corresponding remuneration. Properly executed documents will serve as an evidence of existence of exclusive rights in case of infringement. The issues of service work are regulated by Art. 1295 of the CC RF.
Exclusive copyrights may be handed over under the contract for alienation of exclusive rights. Also, an object of copyright or patent right can be obtained as a result of works under R&D (Research and Development) Contract, that is an individual subject for discussion.
Summing up, it can be noted that currently there are tools for protection of creative, design solutions at the stage building design. Depending on the object created, it can be protected by a patent and/or a copyright. To ensure protection at the initial stage, it is advisable to make sure that your solution does not violate rights of third parties. Determine, who is the designer, and what relations exist between him/her and the organization that works on the project implementation. And make necessary agreements with an author , and if necessary, submit applications to Rospatent for obtaining patents.
Back to the list