Preparation and use of adaptations of a construction design – basic issues
Lawyers from the Infrastructure, Transport and Public Procurement practice group at Wardyński & Partners explain how to lawfully make revisions to a construction design.
A fundamental rule for preparing and using adaptations or modifications of a work, such as a construction design, is the requirement to obtain the permission of the creator of the original work, unless the proprietary copyright has already expired.
Under Art. 46 of the Polish Law on Copyright and Related Rights, unless otherwise agreed the creator retains the exclusive right to permit exercise of a subsidiary copyright, even if an agreement provides for transfer of the entirety of the proprietary copyright. This demonstrates how exceptional the treatment of this right is.
For this reason, public procurement contracts should contain not only provisions transferring the proprietary copyright to the design to the contracting authority, but also a clause concerning the right to permit exercise of subsidiary rights to adapt the design. In other words, it is essential to obtain consent to use an adaptation of a construction design in order for a given investment project to be carried out by persons other than the original author. Transfer of such rights is similar in effect to relinquishing rights to the other party to a contract. Some legal scholars take the view that exercise of subsidiary copyrights is a separate field of exploitation of a work, even though not included in the non-exhaustive list set forth in Art. 50 of the Copyright Law. This means that agreements transferring this right should be governed by Art. 41(2) of the Copyright Law (relevant to “secondary turnover,” when the proprietary rights to a work are assigned by a party other than the actual author), as well as Art. 53, which requires written form, and fee provisions set forth in Art. 43 – 45 and 47.
This issue should not be confused with the issue of the author’s moral rights. Under Art. 16 of the Copyright Law, moral rights cannot be relinquished or sold, and any contract provisions purporting to do so are void. Permission to exercise a subsidiary copyright has no practical significance if the work on the original design is limited to making necessary modifications, which should be agreed with the original author of the construction design because he holds the moral rights. For this reason as well, even if there is a clause in the contract transferring rights related to exercise of subsidiary rights, the investor should consult any planned changes with the creator of the original construction design. The designer may permit his rights to be exercised by third parties, subject to Copyright Law Art. 49(2), which requires that the legal successor obtain consent of the creator to make changes in the work unless the changes are necessary and the author would have no rational grounds to object to the changes.