Copyright And Engineering Design

There are endless questions that arise in practice as the real world is full of complexity.  In addition, the amount of questions that arise are also a directly due to the fact that professional practice is often deeper than that of a "right or wrong" answer.  

One must utilize tools such as Ethical Theories or the tools that our Associations have further refined such as the Code of Ethics or the Code of Misconduct (PEO).  

Let's dig into a question that was proposed to APEGA a few years back - the question is paraphrased at bit for clarity.  This is great preparation for your PPE Exam as well.  

QUESTION

I work for a equipment manufacturer that quotes, designs and manufactures oilsand processing equipment.  Often we are asked to break down the individual items of our quotation such that the client can see pricing of each.  

We have been told not to break out the Engineering Design portion of our quotation.  The fear is that a client can potentially claim the copyright of the design and thus we would not be able to use it elsewhere.  We therefore tuck the cost of engineering design inside of the price of the equipment to avoid this claim.  

The stodgy legally correct answer to this question is to consult with a copyright lawyer as this is a complex legal question.  I'm sure there are various legal considerations that must be accounted for.  However, as professionals we must be familiar with laws surrounding our practice.  Thus let's dig a little deeper into this question.  

Firstly, we must realize that unless you have contracted differently, you own the copyright of the design.  In the case of an employee, the employer owns the copyright and has very likely included the fact in the employment contract.  

Unless of course you have contracted differently with the employer.  You, or your company are free to utilize that design with other clients.  The client has paid for the design service and the equipment itself and therefore owns the equipment and the drawing.  

Similarly, the consulting engineer owns the design that is part of the design drawing.  However, the client owns the design drawing and is free to utilize it for construction.  The client would not be allowed to utilize the drawing for any other purpose that which it was designed for.  

Again, this applies unless the consulting engineer has contracted differently of course.  If the consulting engineer contracts away the copyright, he or she cannot utilize that design further and therefore better be seeking fair compensation.  

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Can the client make a claim for the copyright or the ownership of the design if separated out and paid for ?

ANSWER

To me the question is most easily understood once we understand what a design completely involves.  A professional design is rarely simply a drawing that can be utilized anywhere and in anyway.  

There exists significant application considerations that affect an engineering design.  An engineer or geoscientist often has put in significant professional consideration into where the design is to be utilized and that often includes: temperature, wind conditions, humidity, ground stability, etc.  This is typically outlined in a scoping document.  

There also exists a certain professional liability component to the professional design.  As a part of the design the professional must consider safety of the public and the environment.  With this comes a risk of litigation and it is very foolish for a professional not to receive compensation for such a risk.  

This point most often arises when a consulting engineer is asked to provide a reduced fee for a very similar design.  The client makes an argument that the knowledge, qualifications and responsibility remain the same and have already been applied.  

This is true, however, the worth the consulting engineer provides is more than simply design time ..... even though the knowledge, qualification and responsibility remain the same.  

Your design is more than just a final drawing ..... recall your responsibility to protect the public and the environment.