BILL ANALYSIS Ó
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|Hearing Date:June 17, 2013 |Bill No:AB |
| |630 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Ted W. Lieu, Chair
Bill No: AB 630Author:Holden
As Amended:June 3, 2013 Fiscal:No
SUBJECT: Architects.
SUMMARY: Specifies that no person may use an architect's instruments
of service, as specified, without written consent, contract or
agreement specifically authorizing that use, and declares that the
bill is a clarification of existing law and does not take away any
right otherwise granted by law.
Existing law:
1)Licenses and regulates the practice of architecture under the
Architects Practice Act by the California Architects Board (CAB)
within the Department of Consumer Affairs (DCA). (Business and
Professions Code (BPC) § 5500 et seq.)
2)Mandates that protection of the public shall be the highest priority
for the CAB, and that whenever the protection of the public is
inconsistent with other interests sought to be promoted, the
protection of the public shall be paramount. (BPC § 5510.15)
3)Defines the practice of architecture and provides that an architect's
professional services may include the following: (BPC § 5500.1 (b))
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;
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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.
4)Requires an architect to use a written contract when providing
professional services to a client, and requires the contract to
include a description of the procedure to be used by either party to
terminate the contract. (BPC § 5536.22)
5)Provides copyright protection under the Federal Copyright Act for
original works of authorship, including "architectural work" created
in any tangible medium of expression. (Title 17 United States Code
(USC) § 102)
6)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)
This bill:
1)Specifies that no person may use an architect's instruments of
service, as specified, without written consent, contract or
agreement specifically authorizing that use.
2)Declares that the bill is a clarification of existing law and does
not take away any right otherwise granted by law.
FISCAL EFFECT: This bill has been keyed "non-fiscal" by Legislative
Counsel.
COMMENTS:
1.Purpose. This bill is sponsored by the American Institute of
Architects, California Council (AIACC) to clarify in plain English
that the services provided by an architect, otherwise known as an
Instrument of Service, cannot be used without written consent,
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contract or agreement of the architect.
According to the Author, 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 Services
prepared by an architect.
2.Background. Like other professionals, architects provide a service
to their clients. Those Instruments of Service, which include
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 property to the client.
While the law prohibits unauthorized use of architects' 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.
An example of this scenario is when an architect prepares the plans
for the client, the plans are reviewed and approved by the local
building department and a building permit is issued. The client
sells the property before it is developed, saying the approved
architectural plans are a part of the transaction. The new owner of
the property believes he/she owns the plans (the Instruments of
Service) and can use them to develop the property as he/she sees
fit. However, unless the contract allows the client to transfer the
license to use the Instruments of Service to another person, or the
new property owner enters into an agreement with the architect, the
new owner is not allowed to use the architect's Instruments of
Service.
The requirement that a user have a license to use an architect's
Instrument of Services allows the architect to protect him/herself
and the public, e.g., performing construction administration
services to ensure the project is constructed according to the
plans. The new property owner described above would not have to
honor the construction administration services portion of the
contract between the architect and original owner as the new
property owner does not have a contractual agreement with the
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architect.
3.Instruments of Service. The term "Instruments of Service" is
commonly used in relation to architectural service and practices and
is defined as the "representations, in any medium of expression now
known or later developed, of the tangible creative work performed by
the architect and the architect's consultants under their respective
professional services agreements. Instruments of Service may
include, without limitation, studies, surveys, models, sketches,
drawings, specifications, and other similar materials." The latest
amendments narrow the bill's focus to those Instruments of Service
involving "planning, schematic and preliminary studies, designs,
working drawings and specifications."
4.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.
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.
5.CAB Concerns. Although the CAB supports the bill, in its support
letter CAB raises two concerns. First, the CAB points out, "?these
proposed provisions may be more appropriate in the Civil Code or the
general provisions of the Business and Professions Code, rather than
the Architects Practice Act. This is because the CAB has no
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regulatory authority over consumers/clients . . ."
Second, the CAB is 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
Instruments of Service."
Staff notes that the ability for an architect to abuse the contracting
process by terminating the contract and leaving the client in the
position of having to again negotiate with the architect already
appears to be a possibility under current law. It is unclear how
this bill would change those dynamics.
6.Arguments in Support. The American Institute of Architects
California Council (AIACC) writes in support of the bill: "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."
AIACC further states, "While the federal Copyright Act does prohibit
the unauthorized use of architects' 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
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services, and potentially without the services and construction
documents being complete and compliant with codes and standards."
7.Policy Consideration : Should these provisions be in the Architects
Practice Act? The CAB has questioned whether the provisions
contained in this bill should be placed within the Act or even
within the Business and Professions Code. The CAB has pointed out
that the law mandates that the protection of the public shall be the
highest priority of the CAB (BPC § BPC § 5510.15), and that this
bill is aimed at benefiting licensees rather than the public. More
importantly, CAB states that the Board cannot enforce the provisions
of the bill, since the CAB has jurisdiction over licensees and this
bill is aimed at clients, who are not accountable to the CAB. CAB
suggests the amendments should be better placed in the Civil Code
rather than in the Act.
In response, the Sponsor points out that there are other provisions in
the Act that are not enforced by the CAB. BPC § 5536.25 provides
that if after the architect has signed and stamped plans and the
plans are subsequently changed, then the architect shall not be held
liable for those changes. BPC § 5536.27 grants an architect
immunity for services provided without compensation in response to a
declared emergency. The Sponsor indicates that although each of
these provisions is within the Architects Practice Act, they are not
administered or enforced by the CAB.
SUPPORT AND OPPOSITION:
Support:
American Institute of Architects, California Council (Sponsor)
California Architects Board
Opposition:
None on file as of June 12, 2013.
Consultant:G. V. Ayers