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How can IP Protection work to an architect's advantage and what steps can you take to protect your work?
Sian Disson, News Editor

In late June 2013, claims circulated the media that the impressive London 2012 Olympic Cauldron from Heatherwick Studio was actually derived from a concept tendered to LOCOG by New York-based Atopia Innovation. A cluster of burning copper petals which rose from a splayed position to a glorious blazing column, the London 2012 Olympic Cauldron was, for many, the architectural highlight of the Games.

When WAN contacted ATOPIA for a comment on the situation, the firm’s CEO Jane Harrison was keen to stress that no-one from the company had accused Heatherwick Studio of plagiarising their work as was being reported in the press. The main concern for Harrison was the issue of Intellectual Property (IP) Protection and support for the creativity and innovation of small practices in the design and building industry.

Considering the effects that a lack of IP Protection can have on a small firm, Harrison told WAN: “There are two primary issues here: protecting your IP and defending your rights to it when it is infringed. Both cost money and for small firms, particularly young creative ones, money is often in short supply. Design fees seldom cover the cost of really good design, let alone having a legal team at your disposal.

“Small creative firms essentially have to put up with having their rights infringed, or in extreme cases, bring the debate to the media. Given the passion they invest to their work, this is a challenging process. This is why the exploitation of this reality by large organisations, particularly those that have a lot of power, should be deemed unacceptable.”

At Harrison’s suggestion, WAN spoke to Dr Paul Leonard about IP Protection in architectural practice. A

 

former Director of the Intellectual Property Institute for 10 years, Dr Leonard is well versed in the legislation that can protect practices and propel them forward. He joined the team at Billings Jackson Design 3 years ago and is an Associate of the Chartered Institute of Patent Attorneys and a Fellow of the RSA.

For Dr Leonard, the main issue with IP Protection in the architecture and design industry is that professionals simply aren’t aware of how to use it. He explains: “I am, frankly, bewildered by the lack of knowledge and understanding of the IP system amongst architects and designers. Almost exclusively, IP is seen as a reactive, protective device; something that stops other people copying one’s work. Well, it is to an extent, but that is not why the IP system exists.

“IP rights have been developed to achieve one primary and overriding end: to facilitate investment in innovation. Yes, stopping other people from copying is one means to that end, but it’s not the end itself. The fact that architects and designers tend to see it this way is not surprising since they generally work for a fee. They do not regard their work as an investment in innovation (though very often it might be truly innovative), so it’s not surprising that IP is not to the fore in their thinking.”

In a brief history and analysis of IP Protection Dr Leonard refers to the creation of IP Protection in 1474, a system which ‘allowed the industry to invest in innovation' with this investment coming primarily from the suppliers to the industry’. Dr Leonard suggests that a shift in the perception of modern legislation could be hugely beneficial when it comes to the sharing of ideas, harnessing specific IP strategies to develop mutually enriching relationships between architects, designers and manufacturers.

There are a number of organisations in place to give support and advice on issues of IP Protection including the Intellectual Property Lawyers Association (IPLA) in the UK. Hogan Lovells International LLP is a member of the IPLA and has a strong track record in the field of IP Protection. During an interview with WAN, Alastair Shaw (Of Counsel) from Hogan Lovells explained that architects are in a relatively strong position when it comes to disputes over IP.

He furthers: “It is

 

difficult to prevent infringement from occurring, but if it happens architects are generally in a better position than many creative professionals to enforce their rights. This is because generally they are rigorous in recording when and who created a given drawing, at each phase of a project. This makes it easier to prove ownership of the copyright.”

Shaw also outlined a number of points that may help architects protect their work from potential copycats:

- Always mark the name of the draftsman on each drawing and the date it was created
- Make sure contracts with employees and freelancers clearly state that the firm will own the copyright in drawings created by them
- Make sure that contracts with you clients deal clearly with ownership and licensing of copyright and other IP rights – in the UK, RIBA’s standard contracts do this well
- Keep detailed records of who has had access to drawings prior to the building being built; this will make it easier to prove copying

Whether practices choose to find the positive in IP Protection as suggested by Dr Leonard or protect themselves with the measures outlined by Alastair Shaw, it is imperative that architects have a full understanding of IP Protection strategies so that the sharing of ideas can happen safely and without negative - and costly - consequences.

When faced with the concept of open discourse, Harrison concludes: “One of the only tools that small design firms are left with in this situation is reticence, withholding their best ideas for those working relationships where they can rely on mutual respect, appropriate acknowledgement and compensation. It is hard to see how this enforced creative reluctance benefits clients, design culture and the public at large.” Read Jane Harrison’s full commentary here.

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