Cheryl Terio, Esq.
Page 4

concepts. Furthermore, it will eliminate the uncertainty which now exists over whether or not the copyright on plans includes the right to prevent or recover for an unauthorized construction of the building depicted in those plans.

I hope that this letter adequately explains my views about the importance of the AIA's proposed amendment to section 113 of the Copyright Act and about the need for such an explicit recognition of an architect's right to control the use of his copyrighted plans. Please do not hesitate to call me if I can be of further assistance.

Sincerely

David Shipler

David E. Shipley
Professor of Law

Recognizing the need for a "minimalist approach" in the amendment of U.S.
copyright law in order to comply with the Berne Convention, The American
Institute of Architects would like to offer an amendment with regard to
architecture which would apply only to 17 U.S.C. $113.

The exclusive right of the owner of a

copyright in an architectural drawing, plan,
print, sketch, diagram or model relating to a
building or structure under $106 (1) and (2)
includes the right to prevent an unauthorized
construction of the building or structure depicted.

This language accomplishes three purposes. It enables the United States to say
that architecture is expressly addressed in our law. It also gives

architectural drawings a more complete and pragmatic protection, consistent with
the Berne philosophy. And it avoids the "can of worms" involved in having the
copyright apply to the structure itself.

Architects do have concerns about the implications of a copyright in the
structure itself--not only as potential plaintiffs but as potential defendants
as well. In searching for a minimalist approach, therefore, we would support
the omission of copyright protection for buildings and structures from the
impending legislation while retaining language protecting drawings. it would
seem prudent to include some express mention of architecture given the Berne
definition that twice affirms its inclusion. This amendment confirms that
inclusion in U.S. law.

Our testimony before the House Judiciary Subcommittee on Courts, Civil Liberties
and the Administration of Justice was premised on the need to include
architectural works for Berne compliance, as indicated by The Ad Hoc Working
Group on U.S. Adherence to the Berne Convention and others. The comments of our
witness, David Lawson, FAIA, therefore, only addressed the provisions in the

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proposed laws that affect architectural works. We were pleased that our concerns about these provisions seemed to be understood. Subsequent testimony before your Subcommittee as well as your own testimony before the Subcommittee on Patents, Trademarks and Copyrights of the Senate Committee on the Judiciary, however, has suggested that the current protection of architectural drawings found in the case law may meet Berne standards sufficiently. Because of the lack of consensus on this issue, we recommend stepping back from the full copyright protection in H.R. 1623, but not abandoning architecture entirely in these amendments.

Robert Gorman, Professor of Law at the University of Pennsylvania and Jon Baumgarten of Proskaur Rose Goetz and Mendelsohn have been very helpful in formulating this "minimalist approach." They have very kindly offered to talk with you or your staff about it. They do not, of course, in any way represent the American Institute of Architects.

As the national professional organization representing America's architects, we appreciate your interest in architect's copyright protection--an issue of increasing interest to the profession. I hope this suggestion will be useful to you and your subcommittee as you are pondering the complexities of this issue. We will be happy to discuss this proposal with you or your staff.

Cordially,

Cheryl Terio

B. Cheryl Terio, Esq.

Director, Government Affairs

March 28, 1988

Lewis I. Flacks

Policy Planning Advisor

U.S. Copyright Office

James Madison Building
Room 403

Washington, D.C. 20559

Dear Lewis:

As a result of the concerns expressed at our meeting Friday afternoon, I would like to suggest the following revision in the proposed addition to 113.

The exclusive right of the owner of a copyright in architectural
plans relating to a building or structure includes the right to
prevent an unauthorized construction from those plans of the
building or structure depicted.

We do not view this as a major change in existing Congressional policy. We are not asking to protect the structure itself, but rather for a more pragmatic protection of the copyright in the drawing. This provision prevents the use or reuse of the architect's original creation without the architect's permission. Because the protection does not extend beyond construction to the structure itself, this is not a moral rights provision.

In an effort to simplify and avoid any concerns about three-dimensional models, we have referred only to "architectural plans" as Representative Kastenmeier has done in his amendment in the nature of a substitute to H.R. 1623. (Although the term "architectural plans" may mean something different to architects, it is the terminology used by courts.)

To the extent that the reuse of copyrighted drawings without the copyright owner's permission may have been seen by some as an acceptable practice in the construction industry, we would not ask for retroactive enforcement of this amendment.

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This amendment does not prevent a "reverse engineering" type of reproduction.

I am not sure how to respond to your problem about the simple square with dimensions. It is possible that such a drawing is not an architectural drawing in that it is not sufficient information from which to build. I will continue to think that one through. There may be some case law on the sufficiency of I will call you

drawings. I wanted to get the above to you today, however. Wednesday afternoon.