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Wednesday30 July 2014

Can I stop a contractor promoting my design as his own work?

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How can I prevent a contractor promoting my design as his own work and using my own photographs, without any recognition of the architects?

There are several complex intellectual property issues here, including copyright and moral rights.

“Copyright” means what it says on the tin. It the right to copy another person’s or organisation’s creation, be it the design for a building, drawings, text or photographs. Copyright is statutorily protected for the creator in the UK by the Copyright Design & Patents Act 1988, as amended by the Copyright and Trade Marks Act 2002. Unless you have contractually given or sold your copyright to the contractor (or anyone else), no one else has the right to use any of your design material without your permission.

Also at stake here are your “moral rights”. This is the right to be identified as the author of any works (including designs and photographs), but this needs to be asserted at the time of publication. Anyone using your photographs should acknowledge the photographer and also (if you have asserted your rights) the designer of the building they portray.

There is also the protection of registering your design under the Registered Designs Act 1949, but there isn’t space to cover this here.

You can pursue your legal rights and recompense for any established losses, but this can be immensely expensive (both in money and time) and also fiendishly complex to prove. So you will need to get yourself a good lawyer – and specialist copyright lawyers do not come cheap.

It is far easier, cheaper, quicker and more effective to protect your copyright and moral rights contractually through your appointment and construction contracts. It is then simpler to establish any breach of a contract and to effect compensation for, or injunction against, the unauthorised use of your design and photographs.

I know I keep repeating myself in answers to Practice questions but the answer is to use standard forms of contract wherever possible, as they cover these issues and protect your intellectual property rights. Even when your clients won’t agree to use standard contracts, do take a leaf out of the standard contract books (without infringing their copyright!) and ensure you have clauses in your contracts along the lines of (but not copying) the following clauses in the RIBA standard agreement for the appointment of an architect/consultant:
“The architect owns 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. No part of any design by the architect may be registered by the client without the consent of the architect in writing” (©RIBA).

The newly published updated RIBA Agreements 2010 also include a new clause in relation to photography, following input from RIBA members who had encountered difficulties with the related issue of taking and using their own photographs of their buildings.

It reads: “The architect shall have the right to publish photographs of the project, and the client shall give reasonable access to the project for this purpose for two years after practical completion of the construction works” (©RIBA). RB

Do I need to offer staff a pension?

Am I legally obliged to offer my employees a pension?

Many employers offer a pension scheme for their employees. But there is no requirement to provide a pension scheme, other than to allow access to a stakeholder pension scheme. This is a fairly minimal obligation – the employee has to decide whether to join and the employer is not required to contribute to the scheme.

However, this is due to change. From 2012 all employers will have to ensure that “jobholders” are automatically enrolled into a pension scheme and employers are required to contribute.

“Jobholders” are employees who work in Great Britain, are aged between 16 and 75 and earn “qualifying earnings”. Qualifying earnings are gross annual earnings – including bonuses and overtime – of between £5,035 and £33,450 (as at 2008).

Employers will need to decide on which “automatic enrolment scheme” to adopt. Pension schemes established in the UK or the European Economic Area that satisfy a quality requirement can be designated as automatic enrolment schemes.

For money purchase schemes, the employer must contribute at least 3% of qualifying earnings with total contributions of 8% of qualifying earnings. (These rates will be phased in between 2012 and 2017.)

Final salary schemes must be contracted out of the state second pension or meet a “test standard” of providing a pension of at least 1/120th of average qualifying earnings for each year of pensionable service.

Career average or cash balance schemes – less common types of defined benefit scheme – can also be used.

When does the duty to automatically enrol apply?
The duty to automatically enrol applies immediately to the employment of any jobholder who is between the ages of 22 and state pension age.
However, because the requirements apply to all employers – and the burden that could place on the National Employment Savings Trust (see below) – automatic enrolment is being introduced in stages from 2012 to 2016 according to the size of an employer’s PAYE scheme.

How is automatic enrolment achieved?
A key aim is that enrolment is truly automatic, which means that the jobholder does not need to complete application forms or select investment options. The method differs slightly according to whether a personal or an occupational pension scheme is used. Broadly, employers will have a month to provide jobholders with information about automatic enrolment and to begin deducting the contributions from wages. Information about the scheme must also be provided.

What is the National Employment Savings Trust (Nest)?
Nest is a national money purchase scheme and will be open to all employers as an alternative to selecting their own pension scheme. But it is important to remember that Nest is just one option – employers do not have to use it. Employers who do use Nest will be required to meet the minimum contribution requirements applying to money purchase schemes.

Employers’ obligations
Go to http://tinyurl.com/36o7z5l to find out when automatic enrolment will start applying to your company.

Consider your current pension arrangements and whether they are suitable.

Review your human resources processes for when employees commence work and consider what adjustments will be needed. If you do not provide a pension at present, budget for the increase in employment costs from 2012 onwards. PP

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