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Legal aspects of architectural activity — on the elements of intellectual property rights protection

The work of the architect as the author of the object of intellectual rights is protected in some way by the current Russian legislation. However, such protection must be used correctly.

To date, judicial practice has been developed in cases of copyright and exclusive rights protection in architectural activities, therefore, when interacting with the customer, it is necessary to take into account some nuances.

Often, especially when creating large buildings and complexes, the contract for the development of design solutions provides for the transfer to the customer of the entire scope of possible exclusive rights to the result of the architect's work. Such a provision is not necessary, but it is included in the text of the contract at the insistence of an experienced counterparty, and it is difficult for the architect to refuse such a requirement, to resist the pressure of the customer.

According to the slightly outdated Law No. 169-FZ "On Architectural Activity in the Russian Federation" dated November 17, 1995, as well as the Civil Code and Decree of the Government of Russia No. 87, for the fact of copyright and exclusive rights, among other things, it is necessary that architectural solutions be expressed in the design documentation in the form of an architectural solution, in particular the architectural part of it. Such norms dictate the need to take into account the interests of the architect and conclude a contract specifically for the development of design, not working documentation. It turns out that such a seemingly insignificant fact as the correct naming of the result of the work affects the very fact of authorship.

Unfortunately, this is not always taken into account. For example, in the sensational case of ABV Group Architectural Workshop LLC against SC DON-STROY JSC, the actual author of architectural solutions could not de jure prove his copyright due to non-compliance with formalities: in accordance with the contract, not design documentation was developed, but working documentation. Despite the embodiment of the idea in kind, the workshop was unable to protect its rights in a situation where the developer noticeably retreated from the decisions, replacing the color of the facade elements from white to brown. Interestingly, in this case, the court, among other things, indicates that the parties did not unambiguously agree on a color solution: a facade stone of a certain color was agreed upon, but the color itself was not directly indicated, since it is agreed upon if necessary (see paragraphs "k" of section 13 of the Regulations on the composition of sections of the project Documentation approved 87 By Resolution). And since the parties have not agreed on the color, then there can be no complaints about this.

In this regard, as elements of protecting their rights, the architect is recommended to specify in the contract the development of a section of the project documentation, rather than a working one, and in the design assignment (or in another form) to coordinate all the details that are mandatory, in the opinion of the architect, including color, material, etc., which are important for creative the idea.

The legislation determines that the author of the work has the right to transfer exclusive rights on the basis of agreements reached. Usually such arrangements mean — in exchange for money. Due to the specifics of the interaction and the process of creating a new facility, various situations occur, including financial disputes. To strengthen the position of the architect, it is advisable to introduce norms into the contract, according to which exclusive rights are transferred only upon full payment of the agreed price of the contract, and in the event of any dispute between the parties over payments, penalties, delays, etc. — the use of exclusive rights by the customer is suspended until the dispute is settled, and in case of certain negative consequences, it should stop, returning to the author.

Some elements of the contract that are beneficial to the architect are usually difficult to include in the text, but they must be kept in mind for the appropriate case. For example, a ban on the assignment of exclusive rights to architectural solutions without the written consent of the architect, the requirement for mandatory approval of changes to design solutions and fixing the amount of compensation for damage to honor and business reputation for each element of non-agreed changes, specifying the specific location and conditions of construction of the object according to the developed architectural project, etc.

It is worth recalling that copyrights arise only in the case of the production of a work on the basis of a contract. At the same time, if architectural solutions have already been developed by the time of the relationship with the customer, then it is necessary to conclude an agreement on the transfer of the exclusive right to the work or a license agreement.

By the way, if there are no provisions on exclusive rights in the contract at all, then the exclusive rights remain with the author

Since 1995, when Law No. 169-FZ "On Architectural Activity in the Russian Federation" was adopted, fundamental changes have taken place in civil law relations, and legislation has undergone significant adjustments. Currently, there is a real need to approve a new version of the Law on Architectural Activity, including to clarify and expand the copyright and exclusive rights of the architect, bring it into line with current concepts of legislation and introduce new concepts.

Photo source: housebusinessday.ru

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