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