The Act on Intellectual and Artistic Works No. 5846 (FSEK) places architectural products under the heading of "works of fine art". For a building to benefit from that protection, it must reflect the distinctive imprint of its author and possess an original and independent identity. An architectural work nonetheless occupies a position distinct from other artistic products by reason of a number of features peculiar to it, above all the fact that it falls within the scope of the Zoning Act No. 3194.
The real tension in practice arises from the fact that the owner of the land on which the building stands and the person who created the work are different people. The owner’s power of disposal deriving from ownership and the architect’s moral rights in the work frequently come into conflict over one and the same building. Even so, an architectural product qualifying as a work within the meaning of the FSEK, and the person who created it, enjoy all the rights and protections that the statute provides.
The Act defines a work as any intellectual or artistic product that bears the distinctive imprint of its author and that is listed among works of science and literature, musical works, works of fine art or cinematographic works. Whether a building can be protected as an architectural work therefore depends on the conditions sought within that framework being met. Below we consider those conditions and how the protection operates in practice.
Conditions for Architectural Products to Qualify as Works
In affording protection, the Act on Intellectual and Artistic Works No. 5846 employs a closed classification: for a product to qualify as a work it must fall within one of the four categories listed in the statute. Those categories are the following:
- Works of science and literature
- Musical works
- Works of fine art
- Cinematographic works
Among the categories listed in Art. 4 of the FSEK, architectural products are assessed under the heading of works of fine art and thereby acquire the quality of a work.
The case law of the Court of Cassation has addressed the subject in detail. According to those decisions, the first condition for a building to qualify as a work of fine art is that it possesses aesthetic value. The building must display a character that sets it apart from its counterparts, that is original and that carries meaning in its own right. Where the subject of the assessment is a complex of buildings or an estate, no inquiry is made into whether each individual building possesses a quality distinguishing it from the others; in such cases the aesthetic examination is carried out over the composition as a whole and the conclusion is reached by an overall assessment.
Whether interventions in a work encroach upon the rights of its author, and what powers that person holds, is likewise determined under the provisions of the FSEK. The dispute most frequently encountered in practice arises where the owner of the immovable, relying on the power deriving from ownership, embarks on alterations to the building. That conflict between the landowner’s right of ownership and the powers arising from the architect’s authorship is again resolved within the framework of the FSEK provisions.
Alterations Made Without Consent
Once a building is accepted as a work of fine art by reference to the aesthetic criterion, whether the interventions carried out on it constitute an infringement of rights is determined according to the nature of the intervention.
Under the criterion adopted by the Court of Cassation, three conditions must be satisfied together if a change is not to impair the author’s right: the intervention must not damage the integrity of the work, it must arise from a necessity, and it must not undermine the author’s reputation.
The general rule of the FSEK is that the author’s consent must be obtained before any change is made to a work; that rule is, however, relaxed in the case of architectural works. Where the intervention in question is necessary and compulsory, it may be carried out without the architect’s approval.
If the building does not possess an aesthetic quality, the change made may be interfered with only in respects concerning zoning legislation; beyond that, the owner of the immovable may exercise the power of disposal as it sees fit. The Court of Cassation accepts that adjustments may be made even to a building qualifying as a work of fine art in order to meet needs that change over time. On that approach, the owner may alter the work in order to meet its needs and within the limits drawn by zoning legislation, and may indeed demolish altogether a building that no longer answers those needs.
Where, by contrast, the intervention undermines the author’s reputation, disturbs the integrity of the building or damages its aesthetic composition, the architect may invoke the protections afforded by the FSEK. In that event the author may prevent the changes in question by exercising the power to prohibit governed by Art. 16 of the FSEK, since the right to demand that the integrity of the work be preserved is among the moral rights.
Likewise, where the intervention carried out is not compulsory and necessary, the author has the opportunity to object. For a detailed assessment of the powers granted to the author, our study entitled "The Rights of the Author, Their Protection and Their Transfer" may be consulted.
In such a case the architect may, under the provisions of the FSEK, bring an action for the removal of the infringement and seek to have the continuing violation brought to an end and its consequences remedied. It is also legally possible to claim pecuniary and non-pecuniary damages from the party carrying out the intervention. For the full range of remedies available to an author whose economic and moral rights have been infringed, our study entitled "Actions That May Be Brought by an Author Under the FSEK" may be consulted.
Indication of the Name of the Author
Architectural works are also subject to a separate regime as regards the power to demand that the author’s name be indicated. In other categories of work the author’s name must be shown whenever and wherever the work is used. In architectural works, by contrast, that requirement does not arise of its own accord; the obligation to indicate the name arises only where the author has made a written request to that effect.
Photographing the Interior of a Building
Photographing the interior of an architectural work is regarded, for the purposes of the FSEK, as a form of reproduction. If the building is photographed and reproduced without the author’s consent, the architect may bring proceedings alleging infringement of the right of reproduction.
There is one exception to this rule. Where the work is situated in a public place and has been designed to remain there permanently, photographing its exterior façade falls within the freedom of reproduction. Accordingly, capturing only the exterior of a building permanently situated in a place open to the public does not constitute an infringement of the author’s rights.
Detailed information on the criminal proceedings that may be pursued in respect of infringements of intellectual and industrial property rights is set out in our study entitled "Criminal Actions That May Be Brought Against Infringements of Rights in Intellectual and Artistic Works".
The Separate Status of Architectural Projects
Architectural projects that have not yet been built are assessed, among the categories listed at the beginning of this note, not as works of fine art but under the heading of works of science and literature. The conclusion to be drawn is this: an architectural design acquires FSEK protection with the status of a work of science and literature while still at the project stage.
By virtue of that status the owner of the project may likewise prevent changes made to the design; it may bring actions for the removal of the infringement, for the prevention of the infringement and for damages against the party carrying out the intervention. Once the project stage is complete and the building is erected, the architectural work that emerges is regarded as a work of fine art and is protected within the regime described throughout this note.
Independent Legal Assessment
The greater part of disputes concerning architectural works stems from a failure to determine the legal character of the design at the outset and from the failure of the contract between the parties to regulate the powers arising from authorship. Since the criterion of aesthetic value varies according to the circumstances of the individual case, the basis of the claim to protection must be established with technical evidence at the very start of the proceedings.
The headings we recommend that parties in the position of architect, employer or owner of the immovable keep in view throughout the process are the following:
- Regulating expressly in the architectural contract the transfer of economic rights and the scope of the moral rights
- Archiving, with dates, the projects, drawings and images that establish the originality and aesthetic value of the design
- Documenting, including from the standpoint of zoning legislation, whether the planned alteration satisfies the criterion of necessity
- Submitting the request in writing so that the power to have the name indicated may be exercised
- Observing, in buildings in places open to the public, the distinction between capturing the exterior façade and the interior
- Assessing the protection arising at the project stage together with the regime applying once construction is complete
Independent Legal provides advisory services and conducts litigation across the whole of the process in disputes arising from intellectual property law, from the structuring of the contract to the conduct of actions for the removal of infringement and for damages.