The well-publicised trademark dispute which erupted last week between Marks and Spencer and Aldi over their respective caterpillar cakes is a reminder of the importance of intellectual property rights and the risks posed if these rights are infringed.
While the caterpillar cake dispute centres around trademark rights, in the context of a construction project the most common intellectual property rights fall under copyright law under the 'Copyright, Designs and Patents Act 1988'. The materials involved in a development which are protected by copyright include the architectural drawings, the plans and the building itself. However, there are less obvious protected materials such as project databases and source code. The increased use of BIM in developments means that there is more material to consider than ever before.
When embarking on a development or acquiring an interest in one, it is crucial that you obtain the necessary rights, usually through a copyright licence, to avoid being the subject of an infringement claim which could have undesirable consequences including delays or increased costs. Copyright licences are normally dealt with in the underlying contracts (building contract, professional appointments, collateral warranties etc.) but it is important that these are drafted appropriately to avoid the common pitfalls.