Circularity in construction and copyrights of the architect

Through circular construction, buildings, areas and infrastructure are developed and reused without unnecessarily degrading natural resources, polluting the environment and disrupting ecosystems. For example, buildings are designed and shaped so that they can be easily adapted in the future due to the changing needs of the user or the environment. Thus, a circular building is not static but dynamic and can be subject to change. As a result, the building may look different over time. As a result, the building may also deviate from the architect's original design.

The architect can in some cases do something against this change based on his copyright or personality rights that the architect has as creator on the building. In this blog, we discuss some copyright issues to be aware of when circular construction is underway.

What is copyright and to whom does it belong?

Copyright is the exclusive right of the creator of a literary, scientific or artistic work with respect to the observable form of his work. Under this copyright, the creator has the exclusive power to publish and reproduce the work. A copyright need not be registered or established; it arises automatically when it meets the legal criteria. The law states that the creator is the one whose free and creative choices are reflected in the work. Thus, an architect who has designed a building can in principle be considered the creator of this building. This means that the architect usually owns the copyright to his work and therefore not the contractor or bricklayer who actually built the building.

Transferring copyrights?

An architect can transfer his copyrights to third parties, such as his client. If he does not, then in principle he remains the copyright owner. If the architect transfers his copyrights, then the exploitation rights associated with the copyright are transferred to the transferee. Through this transfer, the transferee has become the copyright owner of the work and can exploit the work (such as, for example, giving third parties permission to reproduce and/or disclose the work).

However, the architect cannot transfer all of his rights to a third party. This is because the law provides that certain rights of the creator (also called personality rights) must always remain attached to the creator. This is because these personality rights protect the creator's intangible interests even after the transfer of copyright, and as a rule will lose their effect only after death.

What personality rights are there?

The law grants various personality rights to the architect. For example, the architect can prohibit the work from being made public without naming it or using a designation other than his name. The architect can also oppose a change in the designation of the work or his name when it appears on or in the work. The aforementioned personality rights are not likely to cause problems in a change to a circular building.

That may be different, however, in the case of personality rights that give the architect the right to oppose:

• any other modification of the work (unless such modification is of such a nature that opposition is contrary to reasonableness); or
• against any disfigurement, mutilation or impairment of the work (if this may result in damage to the architect's reputation).

Thus, the moment a copyrighted work is altered, the architect may be able to take action under his personality rights against the aforementioned alterations.

Consequences of the architect invoking personality rights?

Whether an architect's reliance on his personality rights is successful always depends on the circumstances of the case. A change can quickly occur if, for example, circularly produced facade panels are removed, which changes the appearance. Or when there is modular construction, as a result of which the removal or connection of new modules leads to a change in the work.

There is then a risk that the architect will use his personality rights to prevent the modification. The architect may also impose conditions or requirements for the alteration. In the worst case scenario, the matter will come before the court. The judge will have to assess whether the alteration is of such a nature that it could result in reputational damage to the architect. A planned alteration of the building by the developer can be considerably delayed if the architect invokes his personality rights and believes that the alteration cannot proceed.

Personal rights are not always absolute

However, the property developer does not always have to take into account the architect's personality rights. In fact, the Supreme Court has ruled that if the architect wants to invoke his personality rights, there must be:

• An impairment of a copyrighted work; and
• that encroachment could lead to reputational damage.

Whether there is reputational damage again depends on the circumstances of the case. These include:

• The nature and severity of the impairment;
• the degree of awareness of the architect among relevant audiences;
• and the reasons for the change in which the impairment is located play a role.

Whether the alteration is perceptible to the relevant public and whether much time has elapsed between the completion of the work and the impairment may also be taken into account. This nuance of the architect's personality right by the Supreme Court thus allows project developers to successfully defend themselves against alleged claims by the architect.

Waiver of personality rights in circular construction

The law has exceptions allowing the architect to waive certain personality rights. The right to object to change of creator's name or deformation, mutilation or impairment cannot be waived. Transfer of copyrights will usually not qualify as a waiver of personality rights. It is therefore important to pay extra attention to these personality rights of the architect in circular construction, because it is obvious that this building will change its appearance in the future. It is therefore advisable to check whether the copyrights have been transferred and, in addition, to identify whether the personality rights have been waived. If only the copyrights have been transferred, it may be advisable to approach the architect and still get him to agree to change the building.

As a result of this article, do you have questions about copyright in circular construction or do you have other questions about copyright or personality rights? If so, please contact one of our specialists Valerie Lipman or Joost van Dongen.

This page was last updated on August 8, 2023.