Bugnion Ballansat Ehrler

Bugnion Ballansat Ehrler

Copyright law: How far does the architect’s right to the integrity of his work extend?

Added on 3 June 2016 / Lorenz Ehrler

In a judgment dated 19 April 2016, the Swiss Federal Court dealt with the question to which extent the architect of a dwelling house can call upon the right of integrity in order to prevent the owner from modifying the building.

The dispute can be summarised as follows: an individual ordered from a well-known architect a dwelling house for him and his family. The architectural concept of the house, which is contemporaneous and which was presented in several publications in architectural magazines, had however some practical defects. In particular, its terrace was not protected against atmospheric exposure (rain, snow, sun) and against the noise from the nearby street.

In order to remedy these defects, the owner decided to close the terrace, by resorting to a third party architect. The first architect opposed that project before the civil courts and, as the last instance, the Swiss Federal Court had to decide the matter.

Two provisions of the Swiss Federal Copyright Act (“CA”) are relevant in this context, namely art. 11 (1) (a) CA on the right of integrity (which is part of the author’s personality rights) and art. 12 (3) on the owner’s right to modify a building. The first mentioned provision grants the author of a work the right to determine whether, when and to which extent his work may be modified, while the latter provides that the owner of a building does have the right to modify it – subject to the author’s right of integrity. Thus, art. 12 (3) CA restricts the right of integrity in the field of architectural works. Indeed, given that architectural works are objects of utility which must satisfy the users’ needs, the right of integrity extends less far in the field of architecture than in other fields such as literature or music.

The Federal Court thus had to decide how far the architect’s right of integrity extended in the specific case. In a first stage, the Court expressed itself in favour of the scholarly theory whereby the application of art. 11 (2) CA does not require any weighing of the architect’s interests against the owner’s, but that the only question that needs to be examined is whether the incriminated act violates the architect’s personality rights (of which the right of integrity is a part).

According to the court, several criteria must be examined in order to judge the matter:

  • The first thing to consider is the degree of individuality of the work at stake; the higher the degree of individuality, the Federal Court states, the narrower the relationship between the architect and his work, and the more likely a breach of the architect’s personality rights is given;
  • The nature and the utility purpose of the building are also important. Indeed, the owner of a utilitarian building (e.g. schools, shopping centers) will have more freedom in dealing with the building, than the owner of a church.
  • According to the Federal Court, another criterion is whether, how intensely and for how long the building was taken note of by the public or by specialized circles. The more that is the case, the lesser the risk that subsequent changes of the building may affect negatively the architect’s reputation;
  • The nature and extent of the changes must also be considered, in particular whether they affect the work temporarily or rather permanently;
  • The purpose of the planned modifications is equally important; a modification that is motivated exclusively by esthetic reasons and that does not pursue any functional purpose at all, will more easily be considered unlawful.

On the basis of an expert opinion that had been ordered by one of the precedent instances, the Federal Court considered that the litigious project implied a considerable modification of the building with likely negative effects, in such manner that the question of the integrity of the work was to be examined carefully. In order to determine whether the architect’s right to the integrity of the work was breached or not, the Federal Court examined the case on the basis of the afore-mentioned criteria:

First of all, the Court states that the building at stake being a dwelling house, its purpose was mainly functional. As far as the individuality of the work is concerned, the Court determined, on the basis of the aforementioned expert opinion, that the building did not feature any elements that were not taken from precedent buildings or from the history of architecture. Furthermore, given that the building had been the object of several publications and that, accordingly, there had been considerable exposure of the building, the court considered that the risk of negative consequences in case of executing the planned changes was minor. Furthermore, the Court took into account that the planned changes were meant to correct functional defects and that, in addition, they were reversible. Taking all these aspects, which by the way can be read as a weighing of interests, into account, the Federal Court reached the conclusion that not only was there no narrow relationship between the architect’s personality and the work, but also the planned changes were purely functional, so that there was no need to protect the architect. The Court therefore decided that the architect did not have a right, in this specific case, to prohibit the execution of the planned changes.

ATF 4A_675/2015