You want to start construction on a new building. You don’t know if an investment project is needed or if you already have one, but the designer who created the project has refused. Can someone else do the Author's supervision then?
The design contract is not detailed in the legal framework, despite its wide practical application. This is a contract under which the investor assign the development of an investment project to a designer.
Parties to the contract are the client and the designer. The assignor can be a natural or legal person-owner of a property or a person who has been granted the right to build or has the right to build on someone else's property by power of law. A designer can be a natural or legal person, possessing the necessary designer's legal ability, entered in the relevant register.
All parts of the investment project are checked for compliance with the requirements for issuing a building permit. This is required for all constructions from the first to the fifth category inclusive, as well as for some of the constructions of the sixth category specified in Art. 147 of theSpatial Planning Act.).
The coordination of the investment project consists in checking the device and building standards. If a request for a building permit is not submitted within one year of the approval of the investment project, the project loses its legal effect and cannot be used.
The investment project can be made by:
You have the right to a fair remuneration, calculated in accordance with the Methodology for determining the amount of remuneration for the provision of design services in structural planning and investment design.
You have a full volume of property and non-property copyrights on the work created by you (investment project), object of the copyright in the sense of the Copyright and related rights act. Unless otherwise agreed in the design contract, the investor can use the investment project by building the object without affecting your copyright.
You have the right to exercise copyright supervision under Art. 162, para. 2 of the Spatial Planning Act for the exact implementation of the investment project made by you during the construction of the object. In practice, it is accepted that no other third party has the right to exercise copyright supervision, unless you have waived your right to copyright supervision or there is no other express agreement.
The author's supervision is the supervision of compliance of the construction and repair activities with the approved project. This is an activity through which the architect/engineer monitors the exact implementation of the investment project during the construction of the object, i.e. that the site will be built as provided for in the approved investment project. The author's supervision of all parts is mandatory for all constructions from the first to the fifth category inclusive and is carried out until obtaining a permit for the use of the site/certificate for commissioning.
If the investor wants a third party to perform copyright supervision, this should be explicitly agreed upon.
First, I need to be a legally qualified architect or engineer. It is not necessary that the project, the exact implementation of which I will monitor, was made by me. It is possible to carry out author supervision for the implementation of an investment project, the work of another designer. For this purpose, as we explained above, it is necessary to have an express statement of will on the part of the designer in this direction. It can be in the contract with the contracting authority.
Second, I have to conclude a copyright supervision contract with the investor. With it, we will agree on the specific activities that I will perform, what remuneration I will receive, deadlines, penalties, etc.
It is possible that during the construction there will be a need to make changes to the investment project. Spatial Planning Act gives the opportunity to make only non-essential ones. No matter how insignificant the changes are according to the Spatial Planning Act, however, it is possible that according to the Copyright and related rights act the changes constitute a reworking of a work subject to copyright. The right of reproduction is a property copyright and in order to be exercised by a person other than the author of the work, it must be assigned. This is done with a separate contract, with which the designer, author of the investment project cedes his right to rework to the person who will exercise author supervision.
The present exposition does not claim to be exhaustive and does not constitute legal advice. The KGK team can assist you in case you need consultation and/or drafting of any of the mentioned contracts.