Architectural works is one of the protected works under Law No. 28 of 2014 on Copyright (“Indonesian Copyright Law”). In the real estate development, real estate developers will often use architects’ service for designing their building, such as shopping malls, offices, apartments, etc. The architectural works include physical forms of building, building layouts, building drawing plans, building technical drawings, and building mockups or models. The addition of physical forms of building as architectural works is still new, since it was not included before under the old copyright law. It means that the current Indonesian Copyright Law has expanded the meaning of architectural works.
Under the Indonesian Copyright Law, copyright is an exclusive right that consists of economic right and moral rights. The economic right is transferable and can be owned by the author or copyright holder. The economic rights related to architectural works are (a) publication of works, (b) duplication of works in any kind of form, (c) translation of works, (d) adaptation, arrangement, or transformation of works, (e) distribution of works or their copies, (f) performance of works, (g) announcement of works; (h) communication of works, and (i) rental of works. The real estate developers must know the person that holds the economic rights of architectural works, whether they still belong to the author as the owner of copyright, or other person that validly obtains that copyright from the author.
In practice, the developers usually obtain the economic rights of architectural works through a written agreement. However, the developers need to also understand whether the agreement covers the transfer of whole of economic rights or just some parts of economic rights. Although the rights to announce and duplicate are not transferred to the real estate developers, nevertheless the developers as the copyright holder have the rights to announce the architectural works in a public exhibition or duplicate the architectural works in a catalog that is specially produced for a public exhibition, without prior obtaining author’s approval. Further, the real estate developers may also duplicate the architectural works in one copy for their personal interest provided that the duplication is not made in the form of another building or construction.
The moral rights can only be owned by the author, and those rights are not transferable. Therefore, although the economic rights of architectural works have been transferred to the developers, but the author still holds the moral rights. Under the Indonesian Copyright Law, the moral rights are the author’s rights to:
- put or does not put his name on the copy with regards to the use of his work in public;
- use his alias or pseudonym;
- change his works according to the appropriateness in the society;
- change title and sub title of his works; and
- preserve his rights, in the event of distortion, mutilation, modification of his work or things that are detrimental to his honor or reputation.
Since the moral rights are not transferable, the developers have to be aware when developing their projects. For example, the modification of shopping mall buildings is often occurred during the construction and post-construction. In the post construction, the developers modify the outdated physical form of shopping mall buildings in order to attract more visitors. If the modification is made without the author’s approval and detrimental to the author’s honor or reputation, then the modification by the real estate developers may be subject to copyright infringement.
Nevertheless, the modification of architectural works can also be done without obtaining author’s consent if it is made due to the technical considerations such as (a) the alteration of land area that makes the land area is not sufficient, (b) the position of location is not symmetrical, (c) the material composition is different, and (c) the change of architectural forms due to natural factors.