By Richard Stobbe

A couple, the Ecklunds, approached Oakcraft Homes, a custom home-builder. Based on their discussions, Oakcraft prepared a house plan and gave a copy of the plan to the Ecklunds. The couple later took that plan to a rival home builder, Toscana Developments. Toscana used Oakcraft’s house plan without confirming whether the Ecklunds had the rights to that plan.

When Oakcraft discovered that Toscana had copied and modified the original plan, it sued both Toscana and the Ecklunds.

The law of copyright in Canada is evolving to deal with changes in technology, but there are still some cases where copyright intersects with the age-old professions of architecture and house-building. In the recent case of Oakcraft Homes Inc v. Ecklund, 2013 CanLII 41981 (ON SCSM), an Ontario court addressed the question of who owns a house plan for copyright purposes.

Copyright is, at its most basic, simply the right of an author to make copies of his or her original work. The Copyright Act tells us that copyright subsists in every original literary, dramatic, musical and artistic work. The term “artistic work” includes paintings, drawings, maps, charts, plans, photographs, engravings, sculptures, works of artistic craftsmanship, and architectural works. The term “architectural works” also has a specific meaning in the Act: it means “any building or structure or any model of a building or a structure.” So we can be confident that, in general, a house plan is subject to copyright protection in Canada.

I say “in general” because copyright law is clear that in order to be subject to copyright protection, the house plan must be original. “Originality” forms the foundation of copyright. In order to engage copyright protection, a house plan need not be unique in the sense that the design elements are new to the world. But the design must be the product of skill (what the court describes as “aptitude, proficiency, know-how, knowledge, and practical experience”) and judgment (described as “wisdom, ability to assess or compare various possibilities in order to choose from them”). In other words, the design cannot be a purely mechanical exercise.

From this case, we can take away some important practical points about copyright in house plans, and (perhaps more importantly) the risk of infringement of copyright:

• The court noted that: “Today, that art has become a science by the use of computer aided design (CAD). Can it be said that the use of CAD thereby converts ownership in the original work to the computer software technician operating the machine or the computer software programmer who programmed the CAD software? The answer is obvious….NO!” Just because a house plan is rendered with software, that does not defeat copyright that may subsist in the plan.
• What about marking the word “Copyright” or use of the © symbol on the plan itself? Does that make a difference? The court was clear that: “The failure to mark ownership on the plan does not … defeat the right to copyright.”
• In this case, Toscana said they were not aware that the plans were subject to copyright. They had, apparently, not inquired in any detail, and were, in the court’s words “wilfully blind to determining where the plans came from and who authored them. They chose not to ask knowing that their potential customer was not the author.” Innocent infringement is still infringement and according to the court: “The fact that a defendant may have no knowledge that copyright subsists in a work or that the work was unmarked does not constitute a valid defence.”
• As a result, the builder and the couple were jointly and severally liable for the damages awarded for copyright infringement.

Calgary – 11:00 MST