A product representative recently informed me that another firm in town was using our specifications. How they got a hold of them, I have no idea. I am having the rep send me a copy of the spec to verify.
If this firm did plagarize our specs, what can we do?
I’d look first to the federal copyright law, to see if and how specifications are covered. Now drawings are another matter, in that there can be a lot of unique and creative design aspects on them. Specs, though, often contain a lot of very similar if not the very same provisions.
If, however, you can identify some very specific items that your firm created for a specific design instance, you may have a case-- but as a non-attorney, I think even then you may have a tough time proving your case. Bottom line is they can claim they never saw your specs and the wording is the same by mere circumstance, or coincidence-- I think you would have to prove otherwise.
At the AIA Convention in Chicago last month, I attended an education session on copyright. The focus, of course, was on copyright protection of drawings. The two attorneys doing the presentation maintained that specs could not be copyrighted.
See http://www.copyright.gov/circs/circ41.pdf regarding copyright protection of architectural works.
The two attorneys at the AIA education program said that specifications are not architectural works. However, from my brief investigation of the copyright office website, it seems that specifications could be considered to be “compilations” under the heading of literary works that are protected by copyright. That’s just my opinion and it would take an attorney tl to make a legal determination.
The problem for specifications is that there are few construction specifications that are pure, creative works of the author. They are assembled from information obtained from many sources, including manufacturers’ published product data that may or may not be copyrighted. It seems to get very messy because there are no official attributions for sources of information used in specifications, including the use of copyrighted material from building product manufacturers and publishers of construction industry standards. There is also the matter of copyright protection of guide specifications such as ARCOM, CSRF and BSD, which should be used under license agreement. If the plagiarized spec is substantially based on something like Masterspec and there is no license allowing such use, then perhaps there are grounds to pursue copyright violation but it would have to be by the copyright holder and not the licensee, I think.
I think what you have, David, is plagiarization that may not be illegal but is unethical. Don’t look to the AIA for help on this. I sat through their ethics programs twice now and the matter must be very egregious and involve “architectural work” (design) and not mere technical documents that hardly anyone at AIA understands or appreciates.
The rep just sent me a copy of the spec. Right away I can tell that it is one of our specs. Against CSI principles, we include rep’s name, phone, fax, e-mail etc. under 2.1 Manufacturer’s. The phone number is the same incorrect number that we used to have in our specs!
Coincidence? You decide.
I don’t know the particulars of the professional licensing act in your neck of the woods, but in my state using the work of another professional without their permission, or sealing work prepared by someone other than ones self or someone in your employ, are both sure-fire ways to draw some unwanted attention from the state board.
David, Why not just call the guy?
It is my understanding, through previous discussions with lawyers, that specifications can be considered copyrighted documents. The gray area lies with the amount of re-use. For example, if I have a spec master, and a product rep brings me a paragraph from someone elses spec that contains valuable verbage - it would not be considered copyright infringement. It is also gray because the information in specs is considered factual documentation. However, if the whole spec is re-used, it would be considered infringement.
I know of a spec writer that came across this years ago. He sent a polite, but firm, letter to the cluprit, along with an invoice. He was paid.
Doug,
I don’t even know what person to call. My guess is that the firm does not have a specifier and just copied our specs. I guess that we should be flattered that they copied our specs.
if you use “MasterSpec”, which is itself a copywrited document, as many of us do to create our own in-house master,
Can you then copywrite your document as if it’s your own work?
A Clueless Cluprit?
Places where I’ve worked have copyrighted the entire Project Manual, not the individual spec sections. And I think there is a difference there - the whole can be copyrighted as it is unique for the project; individual pieces are not unique.
Per Robin Above. I’ve spoken to David and I suggest that he find out:
1 How many sections were used
2. If possible where they came from
(e.g. I was given a Division 1 for a university job BY THE UNIVERSITY and later my architect got a nasty note from another architect about …using my spec… In fact the Owner was the culprit.)
When you send them the invoice, include a copy of the AIA Code of Ethics in the envelope.
There is a good piece on copyright and the design professional at www.aepronet.org/ge/no8.html
Hope it helps!
Sorry, I missed this one which gives an overview of the entire copyright act–
www.aepronet.org/pn/vol5-no2.html
We place a copyright notice on every project manual which covers that manual in whole or in part. We did have an instance several years ago where it was discovered that someone was using our specifications. We identified the portions that were identifiable. In that case a whole section or sections were used without revision and it was easy to show it was our master. It is important that we defend our copyrights. I take issue with the AIA, or the attorneys presenting at the AIA convention, who said that specifications are not copyright protected but drawings are. I think they forget that many drawing details are now provided by third party sources and also by manufacturers so the same arguments can be made about many if not most details. The uniqueness of the plans, elevations etc., that define a specific project would be clear but not the details. What author does not do research for their writing? I think that argument does not carry much weight. We should not be using manufacturer’s spec as is anyway. They are usually so poorly written as to be embarrassing to publish them from a professional perspective. In the day when collaboration is more common it can be difficult to determine what to defend. It can be a two edged sword because you may have simiilarly benefited from someone else’s Intellectual Property. But if it is clear someone is using your information unaltered without permission or compensation, I say get 'em. Let them know you are aware and an appropriate and professional warning can often be sufficient. We always try to remember that others may be competition today and collaboration partners tommorrow.
Patrick Thibaudeau, CSI, CCS, LEED AP
Associate Vice President
Director of Specifications and Allied Disciplines
(Patrick tried to post this himself, but was unsuccessful and asked me to post it in his stead)
All of this reminds of an instance, when working as an independent specifier, one day a PM called with a project spec question. Come to discover that we never wrote that specific project spec, but the architect (client) apparently “used” a previous spec (for which we DID write the project spec) for a subsequent spec. Rhetorically, was it the architect’s right to “reuse” the specifier’s “instruments of service”…without “add’l compensation” or specifier’s knowledge?
Your specification was an “instrument of service” for one project only unless you were writing an office master…
My old line of thought was that any document that is “out on the street” is in the public domain and for the cost of a hard copy, anyone with access to a plan center can get a spec. For that reason, I reminded my clients that while they were getting a pile of paper from me, what they were really paying for was my professional judgment and coordination. (some bought that idea, some didn’t). I found in my ten years of consulting that my specs came back to me many times: custom sections I wrote were given back to me three years later by the Owner’s construction manager and I was directed to use them for another project – these were passed off as being written by the CM and I was able to demonstrate that they were my own work. (I didn’t receive compensation for the multiple times those sections were used by others, but I did get client recommendations from it). Ultimately the firm using the plagarized specs will have to administer them on the job site, and if the specs aren’t project specific, they will end up paying in construction administration costs (and bad coordination) nearly the same price as they would have if they had hired a consultant. It is harder to argue that a spec manual is project specific as a set of drawings (showing a specific site) is, but I think a gentle, written reminder (in the form of a bill) for services from the offending party would at least put them on notice.
Am I the only one flattered when someone I don’t know (or someone I know for that matter) uses one or more of our sections in their project manual? After all, plagiarism is the sincerest form of flattery.
Our guide specs are a compilation of 27 years of old specs (we didn’t start from scratch), new text, rewriting old text, a lot of manufacturers input, some help from other specifiers and MasterSpec, and brilliant ideas that someone in the office had during these 27 years.
I don’t know how anyone can copyright all of the above and I am certain that an average lawyer could drive the proverbial truck thru the argument that specifications are proprietary, except if they are used verbatim.
I agree with Anne that all a client is buying is a snapshot in time a project manual written for a specific project. That is not to say that certain sections specifying the same material and installation method can not be used for other projects; we all do it.