The work, designs or presentations of built environment professionals such as consulting engineers, designers and architects often include design viewpoints and draft designs. It is important for built environment professionals to consider how copyright laws in South Africa can impact their businesses and careers, says Legal Risk Advisor, Samantha Baleson of Aon South Africa.
Samantha poses a scenario: “Although a client may be entitled to the use of copyright on the project for which they remunerate the professional, certain clients may attempt to use such principles and designs improperly to their own advantage while they undertake the work themselves and/or re-invite tenders based on these ideas of the professional.”
Protecting yourself legally
Where the copyright is required by a client, it is recommended that the agreement between the client and professional contain a provision to the following effect:
“The Professional shall not be liable (whether in contract or in delict) to the client or any other party whatsoever as a result of the use of the consulting engineers’ designs, drawings and specifications in any project or works other than those for which they are intended, detailed in this agreement, and the client hereby indemnifies the professional against any claim which may be made against him by any party whatsoever in any way arising out of the unauthorised use of such documentation for such other purpose as aforesaid.”
It is also suggested that professionals indicate that they should be adequately remunerated for their services before intellectual property ownership passes to the client. This provision could be as follows:
“The Client retains the design rights and other intellectual property rights of all documents prepared by the Consultant upon full payment for the Services to the Consultant. The Consultant shall be entitled to use them and copy them only for the Project and the purpose for which they are intended, and needs to obtain the Client’s permission to copy for such use.”
Professionals are advised to mark documents to the effect that copyright subsists in such documents. Suitable wording would be as follows:
“Copyright vests in this document/drawing and no use or reproduction or duplication thereof may occur without the written consent of the author.”
In addition, the name of the copyright owner and the year in which the copyright came into existence, should be stated, for example, “©Topside Engineering (Pty) Ltd. 2017.”
Samantha says it is important to keep in mind that your intellectual property as a professional can be considered as a valuable asset to your business. As there are certain associated risks with same, the necessary precautions and wording should be considered.
“Proactive risk management is a vital business tool and is a process best undertaken with the aid of a specialist insurance broker and legal risk consulting service,” Samantha concludes.
For more information, contact Aon South Africa on +27 (11) 944 7000 or via www.aon.co.za.