Signature Realty Ltd v Fortis Developments Ltd & Anor

Copyright in architectural drawings may subsist despite the drawings being based partly on an existing building or earlier survey material, provided sufficient intellectual skill has been applied to the depiction of the proposed use or design. Infringement depends on derivation and reproduction of the whole or a substantial part of the copyright work, assessed qualitatively by reference to the claimant’s work. Similarity caused by the underlying building, commonplace features or an abstract idea is insufficient.

Additional damages require consideration of all the circumstances, including flagrancy and benefits obtained by reason of infringement, rather than benefits attributable merely to planning permission. An injunction is discretionary and requires a legitimate interest requiring protection or a sufficient threat of actual or likely damage.

The claimant obtained planning permissions for a proposed student accommodation development using drawings prepared by Corstorphine & Wright, in which copyright was later assigned to the claimant. The defendants acquired the site from a third party and used copies or versions of the drawings in marketing, design, estimating and construction.

The trial concerned liability for copyright infringement, entitlement to injunctive relief, and whether additional damages could be awarded under section 97(2) of the Copyright Designs and Patents Act 1988. The central issues were whether the drawings were original, whether the defendants’ works reproduced a substantial part, and whether the circumstances justified additional damages or an injunction.

1. Originality. Copyright subsisted in the drawings. Although some features were copied from an earlier survey drawing or dictated by the existing building, sufficient intellectual skill had been applied to the depiction of the proposed use of the available space. The threshold for originality was low, and artistic quality was immaterial for graphic works.
2. Infringement. The facsimile copies used for marketing, estimating, tendering and architectural purposes infringed copyright because the planning-portal licence did not authorise those uses. The AutoCAD drawings also infringed. Although they were prepared by architects who had visited the site, they were materially the same as the downloaded drawings and their similarity resulted from copyright copying.
3. The altered drawings and buildings were assessed by comparing the alleged infringements with the relevant copyright drawings and asking whether a substantial part of the claimant’s work had been reproduced. Similarity attributable to the existing structure, commonplace features, conventions, or the general idea of additional floors did not suffice. Several floor-plan drawings reproduced a substantial part and infringed. The elevation drawings and computer-generated images did not.
4. Additional damages. The defendants’ knowledge and the surrounding circumstances were relevant to flagrancy. However, objective notice of copyright, continued copying after proceedings, commercial sophistication and legal representation did not, cumulatively, establish flagrancy on the evidence. Any benefit from the grant of planning permission had to be distinguished from benefit obtained by reason of copyright infringement. No additional damages were awarded.
5. Relief. The court ordered an inquiry as to damages or an account of profits. An injunction was refused. The claimant had not shown a legitimate continuing interest requiring protection or a sufficient threat of actual or likely damage, and the civil jurisdiction was not punitive.

The judgment records that a prior summary judgment application struck out the implied-licence and estoppel defences, while leaving the substantive issues for trial. No appeal from that order was pursued. The present judgment was a first-instance determination of liability and remedies.