Copyright protection on architecture: How does it work?

In 2014, a Canadian family filed a lawsuit against their neighbour for allegedly copying their house’s design. According to Detik, Jason and Jodi Chapnik sued their neighbour Eric Kirshenblatt for allegedly copying everything from their home’s stonework to its blue window trim, arched front door and chimney stonework.

The Chapniks suspected that the Kirshenblatt copied the house’s design for personal gain, since they have never lived in that house. Not long after, it was discovered that the Kirshenblatt sold the house for $3.5 million. The Chapniks then asked for $3 million in damages.

However, there are many buildings that resemble architectural icons of other countries. China has the replica of various iconic buildings, starting from London Tower Bridge in Jiangsu province to Eiffel Tower in Tianducheng and Roman Colosseum in Macau.

Architectural works bearing resemblance of famous designs can also be found in Indonesia, such as Simpang Lima Gumul in Kediri which resembles Paris’ icon Arc de Triomphe. The huge number of replica of architectural works begs the question: is it actually legal in Indonesia?

Protection of architectural works is stipulated in Article 40 paragraph (1) letter h of the Copyright Law. It stated that the protected architectural works are the physical form of the building, the layout of the building, drawings of building designs, technical drawings of buildings, as well as building models or mock-ups.

Just like the concept of copyright protection in general, the protection of architectural works applies declaratively, which means that even if it is not registered, the work has obtained legal protection.

The form of protection is preventive and repressive protection, especially for the economic rights of the creator. The act of imitating, changing, adding to some forms of creation without the authorisation of the creator with the aim of obtaining profit can be classified as a copyright infringement.

Unfortunately, to this date there is no definite parameters to determine plagiarism. To discuss this issue, TFR interviewed intellectual property consultant Prayudi Setiadharma. Prayudi explained that plagiarism is related to ethics, while copyright infringement is related to law.

“Plagiarism is different from copyright infringement. Plagiarism occurs when all or part of someone else's work is taken and used as if it were one's own work," said Prayudi. He also explained that plagiarism can happen in the form of taking and using other people's work or not giving credit where credit’s due.

Even so, plagiarism can turn into a violation of law. Prayudi said that there are three things that affect this, namely:

1. Protected object

The Copyright Law only provides protection for the objects mentioned in Article 40 paragraph (1) of Law No.28/2014. Protected architectural works in Article 40 paragraph (1) letter h refer to the physical form of the building, building layout, building design drawings, and building models or mock-ups.

In addition, copyright protection is only given to objects that meet the element of originality (authenticity), in the form of expressions and not just ideas, and have been realised. He explained that in order for a work to be protected, it must have original value. "This means that the design must have something that is unique to the creator," he said.

Regarding the aspect of functionality in architectural works, Prayudi explained that the function of a building cannot be protected only because the Copyright Law does not protect it. "For example, the design of a mall that is made in such a way that visitors pass through all the shops in the mall, this cannot be protected," said Prayudi.

2. The protection is still in effect

It is important to consider whether a work's protection is still valid before assuming whether the work is copied. For example, when someone builds a replica of the Eiffel Tower, he/she cannot be considered infringing copyright because the protection has expired.

Article 58 paragraph (1) letter g explains that protection for the economic rights of an architectural work lasts for the life of the creator and continues 70 years after the creator's death.

3. Creator or rights holder feels harmed

The Copyright Law provides exclusive protection for the creator or rights holder to use the work. The copyright holder may be the party who received the rights legally from the creator through, among other things, licensing agreement, will, or grant. Only the creator and copyright holder can file a lawsuit.

An in-depth assessment must be carried out to determine whether an architectural work is an imitation of an existing work. The case of the Simpang Lima Gumul building in Kediri, which is deemed similar to the Arc de Triomphe in Paris, is interesting because many buildings around the world have adopted the same concept.

Prayudi explained that we have to look back at the cultural context of an area. “If we look closely to Indonesian culture, which has adopted a lot of Hindu-Buddhist culture, it is still rare for architects to make such designs. Arc de Triomphe functions as a gate marking the city of Paris, while most gates with similar function in Indonesia were not designed that way," said Prayudi.

This clearly raises the question: is Simpang Lima Gumul a result of plagiarism? An in-depth analysis is needed on the inspiration behind the design, including local cultural factors.

An architectural work is closely related to the design or interior in it. The Copyright Law also provides protection for interior design, although it is not directly explained. Protection of interior design is stipulated in Article 40 paragraph (1) letter f which provides protection for works of art in the form of images, including motifs, diagrams, sketches, logos and elements from font colours and shapes.

Prayudi also suggested that architects and interior designers take preventive measures to protect their works.

He explained that everyone should start to realise the importance of intellectual property rights aspects in their field of work. Protection of building designs and drawings can be applied for from the initial stage of cooperation.

"Designers or architects can start to apply a disclaimer in their work which basically states that the submission of the image or material does not give any right to the recipient or any party to use the design for the benefit of the creator," said Prayudi. According to him, this strategy can bring down plagiarism or even copyright infringement in the world of architecture.