BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 630|
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THIRD READING
Bill No: AB 630
Author: Holden (D)
Amended: 8/27/13 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 the
consent of the architect in a written contract, agreement, or
license 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.
Senate Floor Amendments of 8/27/13 (1) clarify that an architect
may give consent through a written contract, written agreement
or written license; (2) prohibit an architect from unreasonably
withholding consent from the architect's client to use those
instruments of service; and (3) specify that an architect may
reasonably withhold consent if full payment has not been made,
or if the conditions of the written contract have not been
fulfilled.
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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
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 the consent of the
architect in a written contract, agreement, or license
specifically authorizing that use.
2. Prohibits an architect from unreasonably withholding consent
to use his/her instruments of service from a person for whom
the architect provided the services. Specifies that an
architect may reasonably withhold consent to use the
instruments of service for cause, including, but not limited
to, lack of full payment for services provided or failure to
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fulfill the conditions of a written contract.
3. 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,
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.
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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
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 8/28/13)
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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
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
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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 8/28/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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