Guide to Using the RIBA Professional Services Contracts 2018 - Other - Page 58
Contract terms
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should be aware that an implied licence of copyright would exist where they are
paid a fee for the work. The implied licence allows the Client to use the Architect/
Consultant’s work but only for the purposes envisaged at the time the work was
commissioned.
What if the project or land transfers to a third party?
The matter of copyright can be complicated, and the Architect/Consultant should
take great care so as not to be in breach, particularly if the Client disposes of the site
or was a prospective purchaser and the project is taken on by another body. The
transfer of copyright must be contractual, so any subsequent purchasers must buy
the site (with the copyright) from the original Client although, in reality, the original
Client may also have only been a prospective purchaser of the land. Therefore, if the
original Client was a prospective purchaser and the new owner has bought the land
directly from the landowner, then there is no transfer of copyright and the use of any
previous designs would be in breach of that copyright.
If the project is passed on, the Architect/Consultant would owe no duty of care to
the new ‘owner’ who takes over the project, but would continue to owe a duty to the
original Client. It is vital in such circumstances that the Architect/Consultant confirms
the degree of completion or status of the material to avoid future claims, e.g. if further
information or statutory approval is required.
Any copying of the documents, even with a valid licence, is restricted to the practical
exercise of copying the documents to allow the subsequent works to be undertaken.
The original Architect/Consultant’s name and details must not be removed and
replaced with the new Architect/Consultant, nor should the new Architect/Consultant
put them forward as their own.
The original Client or any new owner does not own the copyright of the documents,
only the licence, but neither of them can rely on their rights under copyright to
request the original CAD files, drawing negatives, digital files and so on, unless
this has been agreed as part of the Information Formats. Therefore, if the Architect/
Consultant has no contractual obligation to issue that information to the Client, then
they are under no obligation to issue them. However, if the information is requested
by a new Architect/Consultant, but is not entitled to it, the original Architect/
Consultant could say no but, as a commercial decision, may offer the information on
payment of a fee. However, the Architect/Consultant must confirm in writing that no
responsibility or liability can be taken for the information or for any subsequent use of
those documents.
Conversely, when an Architect/Consultant is asked by a Client to work to documents
previously prepared by others, the Architect/Consultant should ensure that the Client
has a full copyright licence to use that information for that purpose or the Architect/
Consultant will be in breach. Copyright affects everyone and the Architect/Consultant
cannot just rely on a statement from the Client to say that they are able to use the
material. Indeed, if the Architect/Consultant takes on another’s drawings they must
first check that the copyright is cleared by contacting the originator and checking
that they have been paid for the work. Not doing so would also be in breach of
professional codes of conduct.
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