BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 630
                                                                  Page  1

          Date of Hearing:   April 23, 2013

              ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER  
                                     PROTECTION
                              Richard S. Gordon, Chair
                 AB 630 (Holden) - As Introduced:  February 20, 2013
           
          SUBJECT  :   Architects.

           SUMMARY  :   Prohibits a person from using an architect's  
          instruments of service without a written contract or written  
          assignment authorizing that use.   

           EXISTING LAW  : 

          1)Establishes the California Architects Board (CAB) under the  
            Department of Consumer Affairs, to license and regulate  
            architects and administer the provisions of the Architects  
            Practice Act (Act). (Business and Professions Code [BPC]  
            Section 5500 et al.) 

          2)Provides that an architect's professional services may include  
            the following: 

             a)   Investigation, evaluation, consultation, and advice; 

             b)   Planning, schematic, and preliminary studies, designs,  
               work drawings, and specifications; 

             c)   Coordination of the work of technical and special  
               consultants; 

             d)   Compliance with generally applicable codes and  
               regulations, and assistance in the governmental review  
               process; 

             e)   Technical assistance in the preparation of bid documents  
               and agreements between clients and contractors; 

             f)   Contract administration, and, 

             g)   Construction observation. (BPC 5500.1 (b)) 

          3)Requires an architect to use a written contract when providing  
            professional services to a client, and requires the contract  








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            to include a description of the procedure to be used by either  
            party to terminate the contract.  (BPC 5536.22) 

          4)Provides that an original design of a building created in any  
            tangible medium of expression, including a constructed  
            building or architectural plans, models, or drawings, is  
            subject to copyright protection as an "architectural work"  
            under the federal Copyright Act. (Title 17 of the United  
            States Code [USC], Section 102) 

          5)Defines "architectural work" to mean the design of a building  
            as embodied in any tangible medium of expression, including a  
            building, architectural plans, or drawings.  The work includes  
            the overall form as well as the arrangement and composition of  
            spaces and elements in the design, but does not include  
            individual standard features. (17 USC 101) 

           FISCAL EFFECT  :   None.  This bill is keyed non-fiscal by the  
          Legislative Counsel. 

           COMMENTS  :   

           1)Purpose of this bill  .  This bill is intended to add an  
            additional layer of protection to an architect's work by  
            explicitly prohibiting its' use without a written contract.   
            This bill is sponsored by the American Institute of  
            Architects, California Council (AIACC).

           2)Author's statement  .  According to the author's office, "AB 630  
            attempts to clarify that a person or entity must have  
            contractual authorization to use the work, or instruments of  
            service prepared by an architect.  By clarifying existing law  
            in plain English, the objective is to establish a clear law  
            that can be used to avoid timely and costly arguments when an  
            unauthorized user attempts to use the instruments of service  
            prepared by an architect. 

            "Like other professionals, architects provide a service to  
            their clients.  Those instruments of service - planning,  
            schematic and preliminary studies, designs, working drawings,  
            specifications - are used to develop buildings and structures?  
             Importantly, architects provide a service and not a product.   
            The service cannot be bought and sold except by the architect,  
            with the consent of the architect, or by the client if the  
            architect has transferred ownership of the intellectual  








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            property to the client."

           3)Written contracts and copyrights  .  Current law already  
            provides protections for an architectural work under federal  
            Copyright law and state contract law.  If a person improperly  
            uses or transfers architectural work, an architect can pursue  
            legal action in a federal court and seek injunctive relief or  
            compensation ranging from $200 to $150,000 for each  
            infringement.  In addition, if a contract prohibits the  
            transfer of architectural work, then an architect can sue for  
            a breach of contract in state civil court.    

            If an architect's written contract does not state whether the  
            right of the original client to use the architectural work can  
            be transferred to another person, it is implied that the only  
            person who is authorized to use the architectural work is the  
            client who signs the contract.  The sponsor believes this bill  
            will remove any ambiguity as to who is authorized to use an  
            architectural work.  However, given that tort law provides a  
            means for architects to be compensated for damages, it is  
            unclear why this bill is necessary.

            In addition, if a written contract is silent on the transfer  
            rights of an architectural work, this bill would prohibit the  
            use of an architect's work without permission, even if that  
            was not the intent.  Generally, this would pose no problem,  
            since anyone other than the original client should seek  
            permission from the architect to use his or her work.   
            However, since copyright protection for a work can last  
            anywhere from 70 years following the life of the author to 120  
            years after the date of publication, a situation may arise in  
            which the architect will not be available to grant permission,  
            even if it is sought.

           4)CAB concerns  .  While the CAB supports this measure, the CAB  
            wrote a letter "to point out, however, that these proposed  
            provisions may be more appropriate in the Civil Code or the  
            general provisions of the BPC rather than the Act.  This is  
            because CAB has no regulatory authority over  
            consumers/clients?  The CAB is also concerned that these  
            well-intended provisions could be abused by an architect  
            simply terminating a contract even though the payment for  
            services is current.  This would leave the consumer/client in  
            the untenable position of having to negotiate with the  
            architect to continue the project and ultimately use the  








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            instruments of service." 

           5)Arguments in support  .  According to the sponsor, the AIACC,  
            "AB 630 seeks to add to state law language that clarifies in  
            plain and simple English that a person must have permission to  
            use the work, or Instruments of Service, prepared by an  
            architect.  [AIACC's] hope is AB 630 will give architects a  
            tool to educate a person who is trying to illegally use the  
            Instruments of Services prepared by the architect, and  
            hopefully avoid timely and costly arguments?  Importantly,  
            architects provide a service and not a product.  The service  
            cannot be bought and sold except by the architect or, if by  
            third parties, with the consent of the architect.  

            "While the federal Copyright Act does prohibit the  
            unauthorized use of [an] architect's Instruments of Service,  
            architects find themselves in situations where a person  
            believes he/she bought the plans, owns them, and has the right  
            to use them.  A survey the AIACC conducted early last year of  
            architectural firms in California showed that a sizeable  
            percentage (nearly 50%) of the firms that responded have  
            encountered a person attempting to use their Instruments of  
            Service without permission."

            According to the CAB, "AB 630 solves the problem of  
            architects' instruments of service being used without their  
            consent in the event a party other than the original client  
            takes over a project.  In some cases, the architect has not  
            been paid for their professional services, the original client  
            enters bankruptcy, and a bank subsequently takes over the  
            project believing they own the instruments of service.  In  
            this situation, the architect's instruments of service are  
            subsequently used to construct the project without the  
            architect being compensated for the professional services, and  
            potentially without the services and construction documents  
            being complete and compliant with codes and standards."

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          American Institute of Architects, California Council (sponsor) 
          California Architects Board 

           Opposition 








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          None on file. 

           
          Analysis Prepared by  :    Joanna Gin / B.,P. & C.P. / (916)  
          319-3301