BILL ANALYSIS Ó
AB 630
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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
AB 630
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None on file.
Analysis Prepared by : Joanna Gin / B.,P. & C.P. / (916)
319-3301