The intellectual property present in architecture27 Dic 2017
We refer to intellectual property being the collection of rights held by authors or producers in relation to an intangible good. In this article, we will discuss the intellectual property of architectural works.
What is architecture?
Architecture encompasses the art and techniques utilised in the design and construction of buildings and public places and responds to many human needs. As such, it must be protected by the intellectual property framework.
What does intellectual property protect?
Intellectual property law involves the protection of literary, artistic and scientific works. Article 10 of the legislation pertaining to Intellectual Property (La Ley de Propiedad Intelectual) includes an enumerated list of protected works. It follows that the object of intellectual property include all original literary, artistic and scientific creations contained in any medium, whether tangible or intangible, currently in existence or those which will be invented in the future. These include:
- Books, leaflets or pamphlets, handouts, letters or briefs, speeches or lectures, conferences, forensic reports, explanations by academics and any other works of the same nature.
- Musical compositions, whether they contain lyrics or not.
- Dramatic works or dramatic-musicals, choreography, pantomimes and theatre works in general.
- Cinematographic works and any other audio-visual works.
- Sculptures and paintings, drawings, recordings, lithography, graphic novels, comic books and comics, as well as essays and sketches and any other plastic works which take any form.
- Projects, plans, models, architectural designs and engineering designs graphs, maps, topographical designs, geographic works and scientific works in general.
- Photographic works and photographic works undertaken by an analogue process.
- Computer programs.
As we can see, protected works include those in article f) relating to projects, plans, models, architectural designs and engineering designs. Although a literal reading of this section would have us understand that only the systematic representation of the work is protected, the physical work is also protected under architectural constructs.
The Ministry of Culture has expressed that it is understood that the text ensures the protection of intellectual property law regarding architectural works.
What are the requisites that must be complied with to ensure that an architectural works is protected under this framework?
The requisites for the protection of architectural works are threefold:
- Human creation: In order to be an object of intellectual property law, the work must be the result of a creative human activity (Article 5.1 TRLPI). As such, designs wholly created by computers or other devices are excluded from intellectual property protection. However, works that have been created by a person with the assistance of computer programs are susceptible of intellectual property protection.
- Externalised work: It is necessary that the architectural work is externalised in a distinct manner (Article 10.1 TRLPI). In saying this, the medium through which the work is expressed is irrelevant.
- Originality: Lastly, the work must be objectively original. There is a tendency to only protect singular architectural works. However, we can verify in the judgment handed down by the Audiencia Provincial of Barcelona dated 4 May 2004 that in order for the intellectual creation to deserve the conceptualisation of a protected work, it must identify itself with a new objective located either within that conception or execution of the work or through both means. The judgment follows that the work must not be of a novel nature based on a subjective interpretation. Similarly, what is crucial for these purposes is that it incorporates a singularity which requires a certain degree of creative input which is materialised in the creation. The right of the author protects singular works and novel creations whether this is determined by the exterior appearance of the work, by the utilisation of specific materials, or the combination of these in a new manner.
Ultimately, architectural works can emanate from any category and include buildings. This is provided that they are original, are a creative human work and form an externalised work.
Holders rights pertaining to architectural works:
The creator of the architectural work is the physical person which is responsible for its creation. From the moment in which the work is created, the creator acquires intellectual property rights over the work in question. This includes moral entitlements such as paternity, integrity, a right against deformation or modification against the work or the artist. This also includes the exploitation rights signifying the right to reproduce and distribute the work, a right to public communication regarding the work and any transformations.
In principle, these creators will always be the architects themselves. These are the people which are uniquely qualified to create the work. It will be resumed that the identity of the author will be recognised by their name, signature or representative sign or mark visible in the work.
In the case in which the architectural work has been created as a result of a collaboration between various architects, this will be considered in the work as a collaborative piece and the rights attributed to each creator will be in proportion to what they have determined among themselves. This is indicated in Article 7.4 of the Intellectual Property legislation (Ley de Propiedad Intelectual).