Who Owns Your Building Plans? JR Consulting v Cummings and the Copyright Trap for Developers

When a building project is complete, who owns the plans? The answer — which surprises many developers and builders — is almost always the draftsperson or architect who created them, not the client who paid for them. The Full Federal Court's decision in JR Consulting & Drafting Pty Limited v Cummings [2016] FCAFC 20 is the leading Australian authority on this question, and its lessons are directly relevant to anyone who commissions architectural or drafting work.

Background

JR Consulting & Drafting Pty Limited was a specialist drafting firm that created architectural and technical plans for building projects. It had provided those plans to Cummings and related parties for use in specific developments. The dispute arose when Cummings (and associated respondents) used those plans — or works derived from them — in circumstances that JR Consulting alleged exceeded any licence it had granted.

The case raised two foundational questions that recur constantly in the building and construction industry:

1. Who owns the copyright in plans created by an independent contractor?

2. What can a client lawfully do with plans they have commissioned and paid for?

The Full Federal Court's answers have shaped Australian practice in this area ever since.

Copyright Ownership: The Contractor Rule

Under section 35 of the Copyright Act 1968 (Cth), the author of a work is its first copyright owner — subject to one important exception: where the work is made by an employee in the course of their employment, copyright vests in the employer.

This exception does not apply to independent contractors. When a drafting firm, architect, or consultant creates plans as an independent contractor — rather than as an employee — copyright remains with the contractor. The client who commissioned and paid for the plans does not acquire copyright merely by paying the invoice.

This is a point of genuine surprise for many in the industry. A developer who pays $20,000 for a set of architectural plans may assume that they own those plans outright. Under Australian law, unless the contract expressly assigns copyright to the client, they do not. They have a licence — the scope of which depends on the circumstances — but ownership remains with the creator.

The Implied Licence: Narrow and Purposive

If a client does not own the copyright in commissioned plans, what can they do with them? The answer lies in the doctrine of implied licence.

Where a client commissions and pays for plans, the law will imply a licence to use those plans for the purpose for which they were commissioned. But the Full Federal Court confirmed in JR Consulting v Cummings that this implied licence is narrow and purposive. Paying for a set of plans for a specific development does not entitle the client to:

• Use those plans as the basis for other, separate developments;

• Reproduce the plans and provide them to third parties;

• Modify the plans and use the modified versions for new projects;

• On-sell the plans to another developer; or

• Continue using the plans after the purpose for which they were created has been served.

Each of these activities potentially constitutes copyright infringement unless expressly authorised by the copyright owner.

The "Substantial Part" Question

Even where a client does not reproduce plans verbatim but creates derivative works, infringement can still arise. The test is whether a substantial part — assessed qualitatively — of the original plans is reproduced in the derivative work. If the core layout, distinctive dimensions, or identifying design features of the original are preserved in the new plans, infringement is likely.

Why This Decision Matters in Practice

The JR Consulting v Cummings decision has been cited in numerous subsequent building plan copyright cases and has become a standard reference point for the industry. Its significance lies in the clarity it brings to two perennially contested issues.

For Drafting Firms and Architects

Contractors and consultants have strong default copyright protection under Australian law. However, they must be aware that:

• A client may argue that an oral agreement or course of dealing has extended the implied licence beyond its ordinary scope.

• Maintaining clear, written agreements that expressly reserve copyright and define the scope of the client's licence is essential to avoiding disputes.

• Evidence of the purpose for which plans were commissioned will be central to any dispute about the scope of the implied licence.

For Developers and Builders

Clients who commission plans must understand that paying for them does not mean owning them. To use plans for purposes beyond the original scope, an express written licence — or an assignment of copyright — is required. Without this, using plans for multiple builds, on-selling them, or providing them to a different builder risks infringement claims.

Strategic Takeaways

• Drafting firms and architects: use written contracts. Your contract should clearly state that copyright in all plans vests in you (or, if you agree to assign it, specify the terms of assignment). Do not rely on default law when the commercial stakes are high.

• Builders and developers: get an express licence. Before commissioning plans, negotiate and document a licence that covers all your intended uses — including future builds, variations, and on-sales if relevant.

• Both parties: get legal advice when the relationship ends. When a contractor relationship ends on bad terms, the scope of any surviving licence becomes immediately contested. Establish the position clearly before problems arise.

• Do not assume implied licences are broad. Courts read implied licences narrowly. If you intend to use plans beyond their original purpose, get express written authorisation.

• Copyright ownership can be assigned — but only in writing. An assignment of copyright requires a written instrument signed by the copyright owner (s 196 Copyright Act). Oral agreements to assign are ineffective.

Conclusion

The Full Federal Court's decision in JR Consulting & Drafting v Cummings is a landmark in Australian building industry copyright law. It stands as a clear warning to clients who assume that paying for plans means owning them — and as a reminder to drafting professionals to protect their intellectual property with proper written agreements. In the building industry, copyright can be as valuable as the bricks and mortar it designs.

Stellar IP Law acts for both creators and users of architectural and technical plans. Whether you need to protect your plan library or understand your rights as a client, contact our team for specialist advice.