BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



           ----------------------------------------------------------------- 
          |SENATE RULES COMMITTEE            |                        AB 630|
          |Office of Senate Floor Analyses   |                              |
          |1020 N Street, Suite 524          |                              |
          |(916) 651-1520         Fax: (916) |                              |
          |327-4478                          |                              |
           ----------------------------------------------------------------- 
           
                                           
                                    THIRD READING


          Bill No:  AB 630
          Author:   Holden (D)
          Amended:  6/3/13 in Senate
          Vote:     21

           
           SENATE BUSINESS, PROF. & ECON. DEV. COMMITTEE  :  10-0, 6/17/13
          AYES:  Lieu, Emmerson, Block, Corbett, Galgiani, Hernandez,  
            Hill, Padilla, Wyland, Yee
           
          ASSEMBLY FLOOR  :  74-0, 5/2/13 - See last page for vote


           SUBJECT  :    Architects

           SOURCE  :     American Institute of Architects, California Council


           DIGEST  :    This bill specifies that no person may use an  
          architects instruments of service, as specified, without written  
          consent, contract, or agreement specifically authorizing that  
          use, and declares that this bill is a clarification of existing  
          law and does not take away any right otherwise granted by law.

           ANALYSIS  :    

          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).  

          2. Mandates that protection of the public shall be the highest  
                                                                CONTINUED





                                                                     AB 630
                                                                     Page  
          2

             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.  

          3. Defines the practice of architecture and provides that an  
             architect's professional services may include (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.

          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. 

          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 this bill is a clarification of existing law  
             and does not take away any right otherwise granted by law.

           Background
           
          Services provided by architects, otherwise known as 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,  

                                                                CONTINUED





                                                                     AB 630
                                                                     Page  
          3

          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 service allows the architect to protect  
          himself/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 architect.

           Written contracts and copyrights  .  Existing 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  

                                                                CONTINUED





                                                                     AB 630
                                                                     Page  
          4

          rights of an architectural work, this bill will prohibit the use  
          of an architect's work without permission, even if that was not  
          the intent.  Generally, this poses no problem, since anyone  
          other than the original client should seek permission from the  
          architect to use his/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.

           Comments
           
          According to the author's office, this bill 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.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No   Local:  
           No

           SUPPORT  :   (Verified  6/19/13)

          American Institute of Architects, California Council (source)
          California Architects Board

           ARGUMENTS IN SUPPORT  :    The bill's sponsor, the American  
          Institute of Architects, California Council (AIACC), writes, "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  

                                                                CONTINUED





                                                                     AB 630
                                                                     Page  
          5

          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 California Architects Board, "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."


           ASSEMBLY FLOOR  :  74-0, 5/2/13
          AYES:  Achadjian, Alejo, Allen, Ammiano, Bigelow, Bloom,  
            Blumenfield, Bocanegra, Bonilla, Bonta, Bradford, Brown, Ian  
            Calderon, Campos, Chávez, Chesbro, Conway, Cooley, Dahle,  
            Daly, Dickinson, Donnelly, Eggman, Fong, Fox, Frazier, Beth  
            Gaines, Garcia, Gatto, Gomez, Gordon, Gorell, Gray, Grove,  
            Hagman, Hall, Harkey, Roger Hernández, Holden, Jones-Sawyer,  
            Levine, Linder, Logue, Lowenthal, Maienschein, Mansoor,  
            Medina, Melendez, Mitchell, Morrell, Mullin, Muratsuchi,  
            Nazarian, Nestande, Olsen, Pan, Patterson, Perea, V. Manuel  
            Pérez, Quirk, Quirk-Silva, Rendon, Salas, Skinner, Stone,  
            Ting, Torres, Wagner, Waldron, Weber, Wieckowski, Wilk,  
            Yamada, John A. Pérez
          NO VOTE RECORDED:  Atkins, Buchanan, Chau, Jones, Williams,  
            Vacancy


          MW:k  6/19/13   Senate Floor Analyses 

                           SUPPORT/OPPOSITION:  SEE ABOVE

                                   ****  END  ****


                                                                CONTINUED





                                                                     AB 630
                                                                     Page  
          6














































                                                                CONTINUED