Plagarized specifications

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Author Message David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 306 Registered: 03-2002 Posted on Monday, July 26, 2004 - 03:05 pm:    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? Ralph Liebing Senior Member Username: rliebing Post Number: 91 Registered: 02-2003 Posted on Monday, July 26, 2004 - 03:41 pm:    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. John Regener, AIA, CCS, CCCA, CSI, SCIP Senior Member Username: john_regener Post Number: 169 Registered: 04-2002 Posted on Monday, July 26, 2004 - 03:54 pm:    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. David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 307 Registered: 03-2002 Posted on Monday, July 26, 2004 - 03:54 pm:    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! David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 308 Registered: 03-2002 Posted on Monday, July 26, 2004 - 03:57 pm:    Coincidence? You decide. John McGrann Senior Member Username: jmcgrann Post Number: 23 Registered: 03-2002 Posted on Monday, July 26, 2004 - 05:00 pm:    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 one’s self or someone in your employ, are both sure-fire ways to draw some unwanted attention from the state board. Doug Brinley Senior Member Username: dbrinley Post Number: 21 Registered: 12-2002 Posted on Monday, July 26, 2004 - 05:03 pm:    David, Why not just call the guy? David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 309 Registered: 03-2002 Posted on Monday, July 26, 2004 - 05:27 pm:    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. Robin (Unregistered Guest) Unregistered guest Posted From: 68.99.196.88 Posted on Monday, July 26, 2004 - 05:25 pm:    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 Frank FCSI CCS Senior Member Username: doug_frank_ccs Post Number: 77 Registered: 06-2002 Posted on Tuesday, July 27, 2004 - 08:44 am:    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? Helaine K. Robinson CCS Senior Member Username: hollyrob Post Number: 60 Registered: 07-2003 Posted on Tuesday, July 27, 2004 - 12:58 pm:    A Clueless Cluprit? Lynn Javoroski Senior Member Username: lynn_javoroski Post Number: 124 Registered: 07-2002 Posted on Tuesday, July 27, 2004 - 04:14 pm:    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. Marc C Chavez Senior Member Username: mchavez Post Number: 38 Registered: 07-2002 Posted on Tuesday, July 27, 2004 - 07:13 pm:    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.) 3. Send the frim a bill per section for the work. Even if they don't pay it the point will have been made Phil Kabza Senior Member Username: phil_kabza Post Number: 55 Registered: 12-2002 Posted on Wednesday, July 28, 2004 - 06:22 am:    When you send them the invoice, include a copy of the AIA Code of Ethics in the envelope. Ralph Liebing Senior Member Username: rliebing Post Number: 92 Registered: 02-2003 Posted on Wednesday, July 28, 2004 - 07:04 am:    There is a good piece on copyright and the design professional at www.aepronet.org/ge/no8.html Hope it helps! Ralph Liebing Senior Member Username: rliebing Post Number: 93 Registered: 02-2003 Posted on Wednesday, July 28, 2004 - 07:55 am:    Sorry, I missed this one which gives an overview of the entire copyright act-- www.aepronet.org/pn/vol5-no2.html Lynn Javoroski Senior Member Username: lynn_javoroski Post Number: 125 Registered: 07-2002 Posted on Wednesday, July 28, 2004 - 10:59 am:    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) Anonymous   Posted From: 63.70.138.181 Posted on Wednesday, July 28, 2004 - 11:05 am:    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? Anne Whitacre, CCS CSI Senior Member Username: awhitacre Post Number: 105 Registered: 07-2002 Posted on Wednesday, July 28, 2004 - 12:37 pm:    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. Gerard Sanchis (Unregistered Guest) Unregistered guest Posted on Saturday, July 31, 2004 - 09:49 am:    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 manufacturer’s 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. Joe Back, AIA, CSI, CCS (Unregistered Guest) Unregistered guest Posted on Sunday, August 01, 2004 - 05:14 pm:    It is quite possible that specifications used by firm #2 that appear to be identical, or very similar, to those prepared by firm #1 may have been transmitted to firm #2 by a client common to both firm #1 and firm #2. Many, if not most, prime contracts between design firms and public owner clients (some private clients as well) make it very clear that when firm #1 prepares specifications for the client's project, the client has the absolute right to use those specifications again and again and again, any way they want, and with any other design professional or consultant that they choose. The result is that many times, firm #2 (and #3, #4, etc.) will be handed a specification by the client. The specification may, or may not, contain information identifying it as the work of a specific previous design professional/consultant. Even if it is clearly identified as the work of another entity, the client can show that they have complete rights to reuse the work, including using it with a new design professional/consultant. How have we come to this? Maybe we can tackle that in another discussion. In the meantime, public clients, in particular, feel perfectly free to obtain the work of one design professional/consultant, for which a one-time fee is paid, and use it, essentially, as the owner's "master" specification. This, of course, begs the question that if the owner was so pleased with the first design professional/consultant's work, why was that design professional/consultant not retained for the subsequent project(s)? Well, we all know the answer to that lies partly, but not completely, in public procurement laws (another good subject for a future discussion). David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 316 Registered: 03-2002 Posted on Monday, August 02, 2004 - 12:24 pm:    Gerald - Please send me a complete copy of all your spec masters. Thanks! Ralph Liebing Senior Member Username: rliebing Post Number: 96 Registered: 02-2003 Posted on Wednesday, August 04, 2004 - 03:10 pm:    Some new insight, not all to the SPECIFIC COPYRIGHT issue of this string, but... See page 24, of the August, 2004 THE CONSTRUCTION SPECIFIER. Richard A. Baxter New member Username: rbaxter Post Number: 1 Registered: 12-2004 Posted on Friday, December 03, 2004 - 11:18 am:    I know this conversation is 4 months old, but there is another twist to this issue that I wanted to address. I was doing a web search on Google one day and was shocked to come across one of my own specification sections listed amongst the search results. Apparently the owner, a university, is in the habit of creating a pdf of the project manuals we give them and posting them on their website for the convenience of the contractor (and anyone else in the entire world that wants to use my specs.) My work for several buildings is now available to anyone on earth with access to a computer and a modem. Like all internet accessible text, any hope for copywrite protection is virtually impossible to attain. Is there anything in the AIA documents protecting us from having our work posted on the internet like a buffet for plagiarists? Should I be including text prohibiting the posting of spec information on the internet? Do I even have a say as to what an Owner can do with the project manual? George A. Everding, AIA, CCS, CSI Junior Member Username: geverding Post Number: 2 Registered: 11-2004 Posted on Friday, December 03, 2004 - 12:12 pm:    Richard- Your concerns about easy internet access to your documents will be compounded by increasing use of “electronic plan rooms” sponsored by reprographics vendors. The essence of the idea is that your documents are made available for download over the internet to bidders, consultants, subcontractors – in short to anyone who is interested in the project. The seductive upside of the electronic plan room sales pitch is that communication will be enhanced. For example, that last minute addendum we all try to avoid will be immediately available to everyone upon publication. The reprographics company can notify planholders by email, track distribution, and oh by the way, make a little extra in sales. I have had very limited experience with this technology so far, but apparently there are levels of security available to limit access. Still, the idea of having everything hanging out on the internet is a bit disconcerting, although I guess if someone wanted to plagiarize drawings or specs in the good old days, they could do it from hard copies of the documents. Has anyone else had experience, positive or negative, with electronic plan rooms and the plagiarism issue? Leon Ruch, RA, CSI, CCS (Unregistered Guest) Unregistered guest Posted on Friday, December 03, 2004 - 04:10 pm:    When one of our local reprographics vendors started their electronic plan room, they posted one of our projects without our knowledge or permission. We quickly put a stop to that! We now allow them to use this approach if we approve it in advance, and users must log in to their site so there is a record of plan holders. I'm not sure we are completely comfortable with this, but it seems to be a decent compromise to ease the logistics of distributing large sets of documents to a large number of bidders. We do not use it on smaller projects. Another concern with the electronic plan rooms is that it does not guarantee that a plan holder receives a complete set of documents. When distributing hard copies, we issue only complete sets, no partial sets or individual drawing sheets, to ensure that bidders have access to all of the cross-referenced sections, Division 01, and the drawings of related trades. Anonymous   Posted on Friday, December 03, 2004 - 04:28 pm:    It seems a very sad day we we blame the tools of our trade for errors in judgement of human nature. It is not electronic distribution of documents that encourages plagiarism. For it is just as easy to retype a hardcopy. Helaine K. Robinson CCS Senior Member Username: hollyrob Post Number: 102 Registered: 07-2003 Posted on Monday, December 06, 2004 - 10:29 am:    I remember back in the late 1970s and early 1980s when our local Dodge Plan Room had problems with people stealing the documents on file there. Some local architects would also copy and use sections from Project Manuals by other architects. Ron Beard CCS Senior Member Username: rm_beard_ccs Post Number: 42 Registered: 10-2002 Posted on Tuesday, December 07, 2004 - 07:28 pm:    Going back to Richard’s comment about finding his spec section on a website, I remember back in the early 1970's when I discovered that the State of Maryland had adopted my entire Division 1. I had just completed a project manual for a State Police barracks a few months before. Back in those days, Division 1 was generally not very well developed so the text was, for the most part, original. First I was really PO’d, then I was flattered that they selected my work. But overall I felt I was ‘ripped off.’ Had I written the spex for CSI and given it to them to promote is one thing, but to have it just taken in bulk was another. Federal-state agencies claim that contract documents prepared for them are their property and they say they have a right to use them anyway they see fit. Anyway, that is water under the bridge a long time ago. As a result, however, I have ever since placed a copyright symbol on every page I produce except for Federal/State/local agencies that just won’t permit it. I have never once [in over 30 years] had a client object [only a few selected owners have ever objected]. The copyright symbol doesn’t really protect you; only puts a potential user on notice. Ron