In the architectural environment, the wording of the law, adopted by the deputies in the first reading, was received ambiguously. Anna Kyriy, deputy head of the Architectural Chamber of Ukraine, believes that draft law No. 5655 actually destroys the profession of an architect. And on October 13, the National Agency for the Prevention of Corruption published a summary of the anti-corruption examination of the project, in which it identified corruption-inducing factors that determine the need for its revision.
Since the discussion of the shortcomings and advantages of the project is very lively, literally non-stop, PRAGMATIKA.MEDIA provides its "territory" for the discussion of interested parties. In this volume, we publish an interview with architect Anna Kyriy and People's Deputy Olena Shulyak, co-author of the controversial draft law, and we are already continuing to collect opinions for publication in the next issues of the magazine.
Anna Kyriy, architect, deputy head of the Architectural Chamber of the National Union of Architects of Ukraine, founder of Anna Kyriy Architectural Design Group LLC
PRAGMATIKA.MEDIA: If we have understood correctly, the main claim against the developers of the draft law from the side of the architects is that the architects are deprived of their copyright. Please explain in more detail how and at what stage this might happen, and how the law would then be consistent with the entire existing copyright framework?
Anna Kyrii: Yes, the main claim of architects is precisely that we are deprived of copyright, but this is far from the only claim. I will explain about copyright. The draft law directly states that an essential condition of the contract on the development of project documentation, which is developed with budgetary and equivalent funds, is the full acquisition by the customer of intellectual property rights to such documentation. Copyrights are divided into property and non-property. Non-property rights are inalienable and belong to the author. Non-property rights are about recognizing one's authorship, indicating the author's name in publications, etc. But property rights are about the exclusive right to use the work. And when property rights belong to the customer, he can change both the project and the architect at any time.
We are offered to be satisfied with non-property rights, but who is interested in recognizing the authorship of a project that has been changed beyond recognition? The objects built with budget funds all over the world are the best, the most prominent, the grandest, and they always have a name. Obviously, the creation of good architecture is not part of the plans of the legislators. They want to see nameless architecture made of cheap materials in Ukraine and to appropriate the authorship of the architectural objects created by us. If this happens, no world architect will agree to design for us. Because copyright is sacred in the world, but for some reason it is not here.
Anna Kyriy: In this draft law, even the definition and concept of "architect" is removed
It is a mistake to think that the deprivation of architects' copyright in draft law No. 5655 applies only to objects that are built with budget funds. It's just that in this case everything is described in direct text, and in the case of commercial objects - the same, but more veiled. I will explain. It is noted that each contract for the development of project documentation must necessarily be an author's contract and determine the owner of intellectual property rights to the project documentation. It is a well-known established practice that when the customer conducts a tender for project development, the offer with the lowest price wins.
The architect sends the contract to the customer and the customer's lawyers enter a text where all intellectual property rights are transferred to the customer. My colleague, the owner of a large architectural company, recently said that customers began to write in the contract that the rights are transferred immediately after the payment of 17% of the advance. Not after the development of the "Project" stage, not after the working documentation, but stupidly immediately after the first funds in the account of the project company. Thus, it turns out that the architect gives away his copyright immediately and for free.
Photo: Max Bovkun/Unsplash
PM: In your opinion, what is the motivation behind such a proposal and who is the interested party in this case?
A.K.: Developers more than once at all meetings and discussions of the draft law
No. 5655 stated that they wanted to make changes to the project whenever they wanted, not to depend on the architect, to fire him at any time or to change him to another, so that no one would prevent them from carrying out their intentions. This is the concept written in 5655.
In this draft law, even the definition and concept of "architect" is removed, the provisions on the architect's rights are deleted. In it, we are all called "developer of project documentation". And it can be developed by both an architect and any engineer. A model is legalized, when works of architecture can be developed without an architect at all. According to this draft law, it will not be the architect who will make project decisions, but the owner of the property rights of intellectual property — that is, the developer. He will decide who will carry out the author's supervision and can change such an artist at least every day. I, for one, cannot understand how the author's supervision can be called author's, if it is NOT carried out by the author?! As you can see, these provisions not only defy good architecture, but also plain common sense.
PM: What consequences can the adoption of the draft law in this form lead to?
A.K.: The adoption of the draft law in this form will lead to the appearance of low-quality nameless architecture, where decisions will be dictated only by economic expediency for the developer. You can also forget about the safety of objects, because there is no collective responsibility. Collective can only be irresponsible. It is impossible for the twenty-fifth architect on the construction site to follow all the decisions made to him. I even think that it will simply block the industry, because no one will want to enter the facility and process for someone, and then bear responsibility, including criminal, for decisions that you did not make. In addition, such reworking after the previous architect is contrary to professional ethics and standards that every member of the Chamber of Architecture or NSAU must adhere to. In this way, the draft law makes the honest professional activity of an architect impossible. It is unfortunate to state, but an even more terrible and dangerous space of our cities awaits us, if the deputies do not come to their senses and accept it in this form.
When property rights belong to the customer, he can change both the project and the architect at any time. We are offered to settle for non-property rights only
PM: What other pain points of the draft law have you noticed?
A.K.: There are many other pain points and absurdities in the bill. For example, the creation of the Urban Planning Chamber under the Ministry of Regions. The body, which should solve absolutely all issues — from the deprivation of certificates of responsible performers to confrontations with every scandalous construction and every complaint. The decisions of this chamber are equated with court decisions, so it has the right to impose fines, deprive the organization of self-regulation status, and much more. We have a situation where the ministry focuses on itself all functions at all stages of the construction process and also creates a corrupt body that will make all decisions and will not bear any responsibility for them. Put it to work and corruption in the DABA will seem like cute flowers compared to corruption in the Ministry of Regions.
The ministry should formulate policy, not engage in complaints and disputes. This is at least shameful and does not correspond to the status of the ministry. But no, people for some reason think that they will sit on the streams and make money from the bribes of those who want to "pareshat". Only they for some reason forget that they will not always be in power and will very quickly join the queue of those who will be forced to go and "decide" in the corrupt body they created. The draft law lays down a model where the Ministry of Regions becomes a single window for all those who want to solve bribery issues. In its conclusion, NAZK expressed very clearly about the creation of the Urban Planning Chamber. By the way, NAZK recognized this draft law as creating corruption-inducing factors. Because that's how it is.
Photo: Vladimir Yelizarov / Unsplash
Another pain point is private urban planning control and the general concept of control and supervision. You see, the main initiators of building code violations are always developers and general contractors, but certainly not architects or other responsible executors. So, according to draft law No. 5655, developers and general contractors receive control, which they will buy on the market from private companies. And all others — the chief architects of cities, local self-government bodies, responsible executors and architects, experts, self-regulated organizations — receive supervision, which will be carried out by the already mentioned City Planning Chamber and the Ministry of Regions.
This completely unbalances the whole system, when the developer is given unlimited rights (including copyright) and responsibility, which they will buy with money. And everyone who creates an intellectual product is given the constant supervision of "Big Brother" - the Ministry of the Region, which can fine you and deprive you of the right to a profession. Fancy invented?
In general, there are so many absurdities and pain points in this draft law that the volume of the text of such a description would stretch to a novel.
Everyone who creates an intellectual product is under the constant supervision of "Big Brother" - the Ministry of Regions, which can fine you and deprive you of the right to a profession
PM: At what stage are the negotiations and consultations with the authors of the draft law, and do you see a desire on their part to move towards you? Has any compromise been reached?
A.K.: And not on any. No one is negotiating with us, and it seems that they are not going to. Thanks to our action under the Committee on Sadova, we got access to the meetings of the subcommittee, where 2778 amendments are considered. In commissioned articles, they actively write against us that this is "corrective spam". But this is an outright lie. Each amendment is very systematic, I know because I studied them all and wrote about two hundred myself. It's just that the draft law is so imperfect, to put it mildly, that such a number of amendments is a signal and even a diagnosis, not spam. It looks like it will not be possible to correct this legislative chaos with amendments. But lobbyists don't want to hear expert opinions from industry professionals. They are so sure of themselves and their rightness that it is difficult to explain it with anything other than specific engagement.
Representatives of the Chamber of Architecture attend every meeting of the subcommittee, and we express our opinion at each meeting. But the members of the subcommittee make decisions by majority vote. And all these decisions are mostly not in our favor. The most important amendments on copyright, the City Planning Chamber and private control have not yet been reached. They are postponed until the last moment, obviously. Maybe they expect us to get tired. But we will definitely not tire and will do everything to defend our rights and the rights of people to a safe, comfortable and aesthetic space in Ukrainian cities.
There is a situation where architects are the only ones who generally represent human rights in this process. Communities and people are completely discriminated against by this draft law, but this is a separate story for another dozen pages. Today, many powerful institutions have already called the draft law unsuccessful and corrupt. The main scientific and expert department of the Verkhovna Rada, the Architectural Chamber of NSAU, the Ministry of Culture, NAZK, NGO "Together Against Corruption" and others. Instead, this reform is called good only by specific personalities - lobbyists of the draft law.
Deputies must have the courage to admit that you have written a bad bill. Or call it imperfect, if that makes it easier for you. Admit that you didn't dig deep, you didn't involve the right experts, you didn't identify all the stakeholders of the construction industry system, you didn't consult with them and you didn't take their opinion into account. Admitting mistakes is strength. Defending mistakes is weakness. Therefore, it is necessary to recognize the mistake, and then write a new reform and involve not only representatives of the construction market, but also all participants in the field of urban planning and architecture in its creation. And the main thing is to involve local communities, those people for whom you should write laws.
Olena Shulyak, People's Deputy, Deputy Chairman of the Committee of the Verkhovna Rada of Ukraine on the Organization of State Power, Local Self-Government, Regional Development and Urban Planning. Co-author of draft law No. 5655 "On Amendments to Some Legislative Acts of Ukraine on Reforming the Sphere of Urban Development"
PRAGMATIKA.MEDIA: Who, in your opinion, is currently the weak link in the development process and who is responsible for low-quality and problematic new buildings both in the capital and in the regions?
Olena Shulyak: Currently, the legislation in the field of urban development is morally outdated and contains a number of gaps and contradictions, which both corrupt officials and unscrupulous developers have long learned to use. On the one hand, this area is too regulated: for the construction of an object, a huge number of documents must be collected, starting with the process of registration of rights to a land plot and continuing until the commissioning of the finished object.
At the same time, in practice, such regulation is absolutely not a guarantee of the formation of a quality living environment, examples can be seen both in Kyiv and in other settlements. However, the opportunities for illegal enrichment of individual officials are huge here, because in some cases their discretion in making decisions is almost unlimited. That is why artificial obstacles are created, including for foreign investors, while new socially resonant construction objects continue to appear constantly. Therefore, in this case, it is better to talk not about a "weak link in the development process", but in general about the need to systematically reform legislation in order to finally establish clear and transparent rules of the game for all market participants.
Here it is important to understand that one bill cannot fix the situation. Therefore, we try to solve problems in stages. Yes, we have already passed the law on improvement of regulation in construction, which will allow the introduction of modern architectural solutions and new technologies in construction. Until now, Ukraine has used only one method of rationing in construction — regulatory. It has been around since the time of the USSR. At the same time, the world uses more modern methods — targeted and parametric. Therefore, we gave our designers and architects the opportunity to use more modern approaches.
Olena Shulyak:
It will be impossible to hand over an object that was not built according to the project
The parametric method involves setting the parameters that determine the safety, functionality and quality of the standardization object. At the same time, the same law significantly expanded the range of basic organizations involved in the development of state construction standards (such organizations can now also include representatives of higher accreditation institutes, the Academy of Sciences of Ukraine, and specialized organizations). By the way, updating DBNs is also an integral part of restarting the construction market. Last year, we managed to allocate about 50 million for this (initially, the budget for this purpose was many times less).
We also took a big step in the direction of reforming approaches to the development of urban planning documentation by adopting the law "On Amendments to Some Legislative Acts of Ukraine Regarding Land Use Planning." From now on, all urban planning documentation at the local level (complex plans for the spatial development of territories of territorial communities, general plans of settlements and detailed plans of the territory) will be combined with land management documentation, that is, they will necessarily contain a land management component.
In practice, this means that urban planning conditions and restrictions established by such documentation (maximum permissible building height, minimum setbacks from cultural heritage objects, etc.) will be entered into the State Land Cadastre, and therefore it will be technically impossible to change them manually. Information about such restrictions will also be displayed on the Public Cadastral Map, accordingly, everyone will be able to see them: both ordinary citizens and representatives of controlling and law enforcement agencies.
Photo: Rad Pozniakov / Unsplash
We also predicted that during the development of a detailed plan of the territories, the formation of land plots intended for the placement of social infrastructure facilities (education, health care, etc.) will be carried out. Information about such plots will be immediately entered into the already mentioned State Land Cadastre with the corresponding purpose, which will significantly complicate the implementation of schemes when a multi-story building is built instead of the planned school.
At the same time, we are now transferring the work of the market to a transparent public digital plane. With the launch of our Unified state electronic system in the field of construction, we are moving away from old principles and introducing new modern rules. We want all participants of the construction market to work, necessarily using an electronic system, through which it is impossible to check illegal schemes. Each participant in the process is personified (as a result, he is responsible for his actions) and everyone can see: who plans to build what, who sent or signed what.
Regarding the issue of responsibility for low-quality and problematic new buildings, this is a problem primarily of local self-government bodies and other bodies that exercise control. Because it is local governments that are empowered to approve urban planning documentation (according to which the issues of where it is possible to build and where it is prohibited at all or allowed with certain restrictions must be resolved), dispose of land resources, issue urban planning conditions and restrictions, carry out state architectural and construction control, etc.
In order to prevent the emergence of problematic new buildings in the future, we propose in draft law No. 5655 to further strengthen the role of local self-government bodies
From May 27 of next year, local self-government bodies will receive additional powers to control the arbitrary seizure of land plots and their use in accordance with the intended purpose. We provided for these changes in the recently adopted Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine on Improving the System of Management and Deregulation in the Field of Land Relations."
Also, in order to prevent the emergence of problematic new buildings in the future, we propose in draft law No. 5655 to further strengthen the role of local self-government bodies, bringing within their competence the issue of monitoring construction throughout the territory of the relevant territorial community and the demolition of self-constructed objects. At the same time, in order to minimize corruption-related factors that may appear during the implementation of such powers, the provisions of the draft law regulate in detail all procedural aspects related to the adoption of relevant decisions.
PM: Bill No. 5655 has been dubbed "developer" in many mass media. Does it really give any significant preferences to developers?
O. Sh.: Draft Law No. 5655 is designed to regulate the rights, duties and responsibilities of all the main participants in the construction process. One of the important problems in the legislative regulation of this area today is the legal uncertainty in the issue of responsibility, when "everyone is responsible for everything". In practice, this only encourages corruption in regulatory bodies. Therefore, we introduce the term "developer" and propose to clearly distinguish the issues that are his area of responsibility, and which are those of the contractor, architect, technical supervision engineer, etc.
Photo: Vitaly Mazur / Unsplash
For example, the developer does not necessarily have to be familiar with all construction regulations, standards and other regulatory documents of a technical nature, in accordance with which the construction of the object should be carried out. For this, there is an institute of professional performers of certain works, whose qualifications are checked during market access. These are architects, design engineers, technical supervision engineers, etc. It is they who must be responsible for compliance with standards during the execution of works (architects / designers during the development of the project, technical supervision during its implementation, etc.).
At the same time, in order to prevent pressure from the developer on the same architects, in draft law No. 5655, we clearly provided for their duty (not the right!) to refuse approval of the design task if it contains a violation of the requirements of the National Civil Code or other mandatory documents. That is, we are not talking about any preferences for developers and other participants in the construction process. It's just that the responsibility is distributed among different subjects, and the direct sanction is applied to the subject whose actions constitute an offense. The developer of the project will be responsible for the development of the project in violation of the Code of Conduct, for spontaneous construction or failure to provide copyright or technical supervision at the object, the customer will be responsible, for providing a positive opinion on the project documentation that does not comply with the Code of Conduct, the expert, etc.
PM: How can insurance companies be motivated to participate in the development process and guarantee repayment of risks?
O. Sh.: As I said earlier, the current legislative basis in the field of construction cannot ensure the establishment of transparent and fair rules of the game in the market. Accordingly, the construction process is associated with a number of corruption and other risks, which in itself inhibits the process of involving insurance companies in this field. In addition, I would not say that the market of insurance companies is well developed in our country. Often, these specialists themselves cannot understand how to properly insure in the complicated construction process. At least mention the mandatory insurance of subcontractors. The idea was not bad, but in reality it became a fiction.
We would not like to repeat this experience. Therefore, we expect that with the adoption of draft law No. 5655, the situation will gradually improve. With our draft law on urban planning reform, we propose to introduce professional liability insurance for experts, architects and other responsible performers in the field of architectural activity. That is, everyone who performs extra-responsible work is insured. I think this is a good motivation for insurance companies.
PM: Architects are concerned that, according to the wording in the draft law, they are effectively losing their copyright by handing it over to developers. This is true? Please explain in more detail how and at what stage this might happen, and how the law would then be consistent with the entire existing copyright framework?
O. Sh.: The draft law does not provide for the deprivation of copyright of architects. We are talking about the fact that an essential condition of the contract on the development of project documentation should be the determination of the owner of intellectual property rights to such documentation. This provision is fully consistent with the provisions of the Civil Code and the Law of Ukraine "On Copyright and Related Rights", according to which, unlike personal non-property rights (for example, the right to demand recognition of one's authorship for any public use of a work), the author's property rights can to be alienated from other persons. Such alienation is carried out on the basis of a contract.
Provisions of the draft law
No. 5655 do not provide for the automatic transfer of copyright to the customer, but only emphasize the need to identify the owner of such rights
The provisions of draft law No. 5655 do not provide for the automatic transfer of such rights to the customer, but only emphasize the need to determine the person who owns such rights. If the property rights remain with the developer, the parties (customer and architect or design engineer) must immediately settle the issue of how, if necessary, to make changes to the project documentation and determine the persons authorized to carry out copyright supervision in the event of: death of the developer; liquidation of the developer — a legal entity; depriving the developer of a qualification certificate. It is clear that under such circumstances, the developer himself will not be able to approve changes in the project or appoint persons who will carry out the author's supervision. Therefore, the algorithm of actions in such cases should be regulated on a contractual basis.
Thus, all issues related to ownership of intellectual property rights will be decided solely at the discretion of the parties.
The only exception was proposed to be made for cases when project documentation is developed with budget funds. This initiative is aimed at promoting the development of the infrastructure of settlements and improving the living environment. For example, let's imagine: a school or a kindergarten is being built with budget funds. After some time (say, in 10 or even 20 years), in connection with the growth of the city's population, there is a need to increase the capacity of this institution, which requires, in particular, a significant increase in the number of classrooms. Such an increase can be achieved by renovating the building.
And here the question arises: according to the law, the implementation of the reconstruction project requires prior agreement with the architect who once developed the project documentation. The first difficulties that will arise in this matter will be of a purely organizational nature, because if a long time has passed since the project was developed, this architect will have to be found in an elementary way (not to mention the case if he died or lives outside of Ukraine).
Then it's even more difficult. Unlike an official who considers the issue of issuing a permit, an architect, as the owner of property rights, is not limited by any legislative prescriptions. He does not have an exhaustive list of reasons for refusal - it is enough to simply say "I do not want" and this will be enough to stop the implementation of the relevant project. And here a really controversial situation arises: on the one hand, the author's property rights, and on the other, the urgent need to provide residents with social infrastructure facilities. The issue is complex and a final decision has not been made regarding it, there are arguments "for" and "against", the issue is currently being discussed. However, I submitted an amendment that cancels the obligation of such a transfer of property rights to the customer when designing with budget funds.
PM: Who will ultimately be responsible for poor quality architecture or one that does not correspond to the original design?
O. Sh.: Let's be honest: our cities are disfigured by "architectural monsters". For decades, illegal buildings have been growing all over Ukraine with violations of the law, safety, aesthetics, and generally common sense. And who is responsible for this? No one. Think about it: during all this time, no one of the designers or architects was ever sued. Therefore, speaking about responsibility, you should, first of all, turn to the architects who designed a lot of unnecessary things for money. But this appeal is actually rhetorical. As a matter of fact, in our draft law No. 5655, we predicted that it would be impossible to hand over an object that was not built according to the project. The rest who build honestly will have the green light.
Perhaps this very moment arouses the desire to discuss among those who still wanted to design "monsters" or build not according to the project. As for liability, it is all prescribed in two draft laws: No. 5655 (liability of business entities) and No. 5877 (amendments to the Code of Ukraine on Administrative Offenses and the Criminal Code of Ukraine), which is the third in a series of draft laws on urban planning reform.
Yes, the responsibility for developing project documentation in violation of legal requirements will be borne by the person who developed it. In the event that the project documentation was examined - also the relevant expert organization and directly the experts who put their signatures under a positive conclusion on such documentation. If the project documentation is developed in compliance with the legislation, and the object being built does not correspond to the project, this is primarily the responsibility of the person supervising the construction of the object. And so with respect to each construction participant: non-fulfillment or improper fulfillment of the duties legally assigned to such an entity will entail liability, depending on the nature of the offense, from a fine to imprisonment.
Iryna Isachenko spoke
