Charles Amissah-Koomson, ACIArb and Matilda Emefa A. Ocloo-Awumey

Introduction

Architecture is the most widely encountered and influential of all the arts. The imagination and skill of architects provide spaces for leisure, accommodation, worship, industrial production, amongst others. An architect will typically express his or her design intent in outline sketches, floor plans, elevations, building sections and sometimes 3D impressions which is usually done by physical models or with the aid of Computer-Aided Drafting (CAD) software.

In the practice of architecture, the protection of the intellectual property of an architect is essential to preserving the creative and artistic contributions of architectural designers. It is important that the unique designs that shape our cities and towns skyscape are protected through the law.

This blog explores the legal framework governing the architectural design protection within the framework of the Copyright Act of Ghana (Act 690) and other case law considerations.

Intellectual Property or Copyright?

According to the World Intellectual Property Organization (WIPO), intellectual property “…refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names, and images used in commerce.”

Copyright however, is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture and films, to computer programs, databases, advertisements, maps and technical drawings.

Copyright, then, is the protection extended to the creator of an original work. It provides the sole rights to the use and distribution of the work. In the case of architecture, the designs created by an architect is his or her intellectual property which is subject to protection by copyright.

The nature of copyright

Copyright is a statutory right. In Ghana, the law that governs copyright is provided for in the Copyright Act, 2005 (Act 690).

Section 1 of the Copyright Act, provides for works protected by copyright. These include literary work, artistic work, musical work, sound recording, audiovisual work, choreographic work, derivative work, and computer software or programmes.

The Copyright Act in Section 76 defines artistic work to include .. (e)work of architecture in the form of building or model;

Clearly from Act 690, the creative product of an architect is subject to copyright as an artistic work.

Ideas or Expression

Copyright protection does not extend to ideas contained in the works, but only the work itself. This principle is contained in Section 2 of Act 690. Section 2 provides that “Copyright shall not extend to ideas, concepts, procedures, methods or other things of a similar nature.”

This was also affirmed in Pearson Education Limited vMorgan Adzei where the Supreme Court affirmed this principle. In this case, a publishing company published the plot of a novel authored by the Plaintiff, the latter sued for infringement of his copyright. The Supreme Court held that the summary of the plot was not an infringement. Date-Bah JSC noted,

“In my considered view, the brief summary of the novel of 106 pages represents only the essence or the general idea underlying the novel. It does not constitute such a detailed pattern of its ideas that that pattern is in itself an expression of the ideas embodied in the novel. To my mind, therefore, the general idea summarized in Gateway comes within the exclusion in section 2 of the Copyright Act 2005 and is outside the zone of protection. Therefore, the reproduction of that general idea in Gateway cannot constitute an infringement of copyright.”

Some other two common law cases in architectural and engineering design shall be briefly observed.

In Catnic Components Ltd v Hill & Smith Ltd, Buckley J remarked,

‘What is protected is the artistic work and not the ideas or information which it may be designed to convey.. What is protected is the skill and labour devoted to making the artistic work itself, not the skill and labour devoted to developing some idea or invention communicated by the artistic work’

In Ancher, Morlock, Murray & Woolley Pty Ltd v Hooker Homes Pty. Ltd, Street J stated;

that copyright laws will prevent the building of another house that reproduces a substantial part of the original house where the reproduction is a result of copying the physical object itself. The law does not however prevent one architect from following the footsteps of a colleague. However, it does prevent him from copying the plans of his colleague to enable him to follow those footsteps. 

Authorship and Rights 

The author is the person who creates the work. Act 690 defines the author as the person who creates the works. In the law of copyright, the author is the first owner of the copyright. In architecture, designs are usually created by architects or architectural firms. Hence these persons can be considered as authors. To obtain copyright protection, a work must be original i.e. the author must have used his own skill and effort to create the work.

Copyright provides for two main rights namely economic and moral rights. 

Economic rights

Economic rights refer to the exclusive rights granted to the creator or copyright owner of a work to financially benefit from its use. In other words, these rights allow the author (or right holder) to control how their work is used and to receive payment or royalties when others use it. 

Section 5 of the Copyright Act, 2005 (Act 690) provides for exclusive economic rights of the author. Actions such as reproduction, translation, adaptation, public performance, commercial rental of original work are expressly prohibited.

Moral rights

The Copyright Act provide for moral rights for the author of copyright works in Section 6. Moral rights allow the author tohave the right to;

a. be identified as the author of the work and 

b. object to and seek redress for any distortion, mutilation, or alteration of their work that harms or could harm their reputation. This right also applies where such an act results in the work being discredited.

In the context of architecture, the moral rights provided under Section 6 of the Copyright Act play a crucial role in protecting the personal and reputational interests of architects as authors of creative works. These rights ensure that architects are properly identified as the creators of their designs, drawings, or completed buildings, thereby safeguarding their authorship and professional recognition.

Additionally, moral rights protect architects from any unauthorized alterations, distortions, or modifications to their designs that could compromise the integrity or reputation of their work. For instance, if a building is altered in a way that misrepresents the architect’s vision or diminishes its aesthetic or structural value, the architect has the right to object and seek redress.

Overall, these provisions affirm that architectural creations are not merely functional structures but also expressions of artistic and intellectual creativity deserving of both moral and legal protection.

While Section 6 of Ghana’s Copyright Act confers moral rights on authors, its practical enforcement in architecture remains uncertain. Unlike the UK Copyright, Designs and Patents Act 1988, which expressly protects moral rights even after building completion, Ghanaian jurisprudence offers little or no guidance on whether an architect could object to post-construction modifications. This legal gap potentially undermines architects’ reputational interests and warrants reform.

Employed Authors

Section 7 of Act 690 should be of key interest to architects. It provides for Employed authors. It specifically reads;

In the absence of a contract to the contrary, the economic right of a work shall vest in an employer or a person who commissions the work where the employed or commissioned author has created the work in the course of the employment or commission.

Architects are mostly employed authors; clients commission them to design buildings for them. Until and unless the parties at the point of engagement agree otherwise, the economic right of the designs will vest in the Client. He is free to reproduce them. This right however does not extend to the moral rights. That is the position in Ghana’s law.

Similarly, architects employed by an architectural firm have no economic right to the designs they produce during their employment.

If an architect wants to maintain economic right to his designs, it must be expressly stated in the agreement prior to commencement of work. Architects may use also use standard conditions of contracts. The succeeding chapters will discuss how these standard conditions of contract deal with copyright.

Standard Conditions of Contract

Client/Consultant Model Services Agreement by FIDIC(White Book)

This agreement published by FIDIC represents the basic for a Contract of Appointment between a Client and his Consulting team which includes the architect.

Clause 1.7 of the 2006 Edition, provides that;

Copyright

the Consultant shall retain and other intellectual property and copyright of all documents prepared by him. The Client shall be entitled to use them or copy them only for the Project and thepurpose for which they are intended, and not obtain the Consultant’s permission to copy for such use.

The FIDIC White Book provides certain protections for design consultants, stipulating that the Client may only use or reproduce their work with the Architect’s consent, and solely for purposes related to the project.

RIBA Standard Conditions of Appointment for an Architect

Clause 6 of the above conditions provides;

Copyright 

6.1 The Architect shall own the copyright in the original work produced in the performance of the Services and generally asserts the Architect’s moral rights to be identified as the author of such work. 

6.2 No part of any design by the Architect maybe registered by the Client without the consent of the Architect in writing. 

Conclusion

Architecture as an art has a special place within the laws of copyright. The law of copyright in Ghana offers some degree of protection to authors such as architects. Architects as first owners will however have to ensure that when entering into contracts, there is an express declaration of copyright to them failing which they may lose their economic rights to the Employer.