06 August 2025
6 min read
#Construction, Infrastructure & Projects, #Intellectual Property
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In the fast-paced and complex world of construction, the importance of intellectual property (IP) is often overlooked, yet it plays a critical role in many aspects of a project, from architectural plans and design tools to branding. Poor IP management can result in legal disputes, delays, and reputational damage. Following our recent webinar, we dive deeper into the relevance of IP in the construction sector and highlight common issues that can arise when IP rights are not clearly understood or properly managed.
IP refers to legal rights that protect creations of the mind. These rights cover intangible assets such as inventions, designs, artistic works, trade marks, and more. Some types of IP, such as patents, registered designs and trade marks, must be formally registered to be enforceable. Others, like copyright and moral rights, arise automatically when a qualifying work is created, provided it meets the relevant legal thresholds.
Importantly, IP laws do not protect ideas themselves. Legal protection applies to the tangible expression of an idea, such as a written plan, drawing, product design, or software code (depending on the type of IP right in question).
Generally, IP is initially owned by the individual or organisation that created it unless it is assigned or transferred by agreement or by operation of law. In collaborative industries like construction, where many parties contribute to a project, it is critical to identify who owns which IP and under what terms it may be used, reused, licensed, or commercialised. Clear contractual arrangements help prevent misunderstandings and disputes over IP ownership and usage.
IP is present at nearly every phase of a construction project:
One of the most important distinctions in managing IP is between licensing and assignment. An assignment is the complete transfer of ownership from one party to another. Once IP has been assigned, the original owner no longer retains rights to use or control it unless specifically agreed otherwise in writing.
Alternatively, a licence gives another party permission to use the IP under specified terms while ownership remains with the licensor. Licences can vary widely – they may be exclusive or non-exclusive, perpetual or time-limited, revocable or irrevocable, and may apply globally or within a defined geographic scope.
In construction, where materials and designs may be reused across multiple projects, clearly documenting the terms of any licence or assignment is essential. Failing to do so can lead to disputes over who can use the IP and under what circumstances, particularly after project completion.
In most construction projects, multiple parties contribute existing knowledge or tools. This is referred to as ‘background IP’ – intellectual property that existed before the project began. Examples include a consultant’s proprietary software or a contractor’s standard design templates. Background IP usually remains the property of the party that brought it into the project.
‘Foreground IP’ on the other hand, refers to new IP created during the project itself. This could include custom architectural designs, project-specific engineering solutions, or jointly developed digital models. Ownership of foreground IP can vary and should be clearly defined in the project contract to prevent later disagreements.
IP issues are frequently encountered in the construction industry and can lead to significant legal and commercial consequences if not properly managed.
One common issue involves the reuse of architectural plans or drawings. Clients often assume that because they have paid for the creation of these materials, they automatically own the associated intellectual property rights. However, under copyright law, the original creator – typically the architect or designer – retains copyright unless it has been expressly assigned in writing. Without such an assignment, any reuse, adaptation, or reproduction of the plans without permission may amount to copyright infringement.
Another important area is moral rights, which exist independently of copyright and cannot be assigned. Moral rights include the right of attribution (to be credited as the author of the work), the right against false attribution (to prevent others from being incorrectly identified as the author), and the right of integrity (to object to derogatory treatment of the work that could harm the creator’s reputation). These rights are especially relevant for architects and design professionals. Moral rights continue to apply even if copyright has been transferred, and they are not automatically waived in standard contracts. A valid waiver must be made in writing, with full knowledge and consent of the creator.
Branding and trade marks also present risks in construction projects. If a company uses a business name or logo that is already registered by another party for similar goods and services, this could amount to trade mark infringement. Failing to register a trade mark leaves a company vulnerable to competitors using similar branding, potentially causing confusion and diminishing brand value. In collaborative arrangements, it is important to clearly agree upfront who will own any branding or trade marks developed for the project, and how those assets can be used during and after the project’s completion.
To effectively manage IP in construction projects, it is essential to clarify ownership at the beginning. Contracts should clearly outline which IP is being brought into the project by each party (background IP), what will be created during the project (foreground IP), and who will own it. Where IP is to be licensed rather than assigned, the terms should be spelled out with precision to avoid future misunderstandings.
Parties should also be careful not to assume that payment for work equates to ownership of IP. This is a common misconception that can lead to significant legal exposure. Branding should be protected through trade mark registration, and all new names or logos should be checked for potential conflicts before being used publicly. Finally, moral rights should be respected, and waivers should only be sought with full disclosure and informed consent.
IP in an essential yet often overlooked aspect of the construction industry. Understanding the different types of IP, recognising the distinction between licensing and assignment, and clarifying the ownership of background and foreground IP can help avoid costly disputes. By proactively addressing IP considerations in contracts and seeking legal advice where necessary, construction professionals can better protect their valuable IP assets.
If you would like to discuss your IP rights or have any questions, please get in touch with our authors or a member of our team below.
Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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