Already frequently used in the USA and now compulsory on public projects in Denmark and Finland, Building Information Modelling (BIM) looks set to explode upon the UK domestic construction industry over the next few years. This development will be spearheaded by some major infrastructure projects and the government’s initiative to make it compulsory on public projects by 2016 (BIM Working Party Strategy Paper 2011).
This is the first in a series of articles, which deal with some of the legal issues that BIM presents.
How is BIM used at the moment?
BIM provides a package of tools, with the opportunity to take an integrated and collaborative approach to construction. It currently manifests itself at different levels – with some using it as advanced CAD, others as a series of models for distinct elements of a project.
For those at the cutting edge, a single integrated model is the goal. However utilised, users hope that BIM can achieve cost savings and ultimately include integrated cost modelling, construction sequencing and facilities management capabilities.
Effect of maturing use of BIM
As BIM matures, it is clear that the current division of responsibly and liability founded in those contracts common to the industry today will become increasingly inappropriate. Contracts will have to be amended to allocate risks rationally; based on the benefits a party will receive from BIM, the ability of the party to control risks, and the ability to absorb risk through insurance or other means. Contracts will have to incorporate provisions that deal with issues specifically relevant to BIM, such as data access, BIM deliverables and model responsibility. One key issue that will need to be addressed is ownership of information.
Existing contracts: architect as design lead
In existing contracts, the architect usually takes the design lead and retains responsibility and ownership for the overall design of the project. With the increased integration and collaboration that BIM enables, layers of intellectual property, provided by different design participants, will be incorporated into the final model. This gives rise to both practical and legal problems.
The heightened risks due, for example, to uncertainty as to who owns what, the chance of inadvertent sharing of trade secrets or patented processes, and the risk that designers will withhold design elements in order to protect their intellectual property, all need to be addressed. Exactly who will own and take responsibly for the model? Who will own the data rights? Can the model data be used in future projects? These are all fundamental issues.
Building owner to own the model?
Of course, in most projects, ownership of the BIM model is likely to be retained by the building owner and the owner is likely to want the architect to retain overall design responsibility. However, the architect is more likely to have concerns about accepting responsibility for a BIM model to which others have contributed.
The data contained within the BIM model is likely to be wide-ranging, and contributions will come from a variety of different participants. For example, there is likely to be design data, cost data, design processes, tables, databases and graphical information. Different statutory provisions will govern each of these rights and the contract will have to deal with them specifically if confusion is to be avoided.
Different approaches to IP
One approach could be to adopt joint ownership of the intellectual property. Another approach may be for each contributing participant to permit use of the information provided for the purpose of the project alone. However, even this does not provide a complete solution since, by its very nature, BIM is likely to generate a live model for facilities management and data capture, post completion.
Some form of licensing agreement for ongoing use of the model on the project after construction will need to be reached. However, this would have significant implications, as none of the joint owners would be able to use or license a third party to use the work in question without the consent of the others. It would also be difficult to assign or sell the rights in a design without agreement of all of the joint owners.
Current forms of contract may strain to address BIM
Current forms of agreement may not be adequate to deal with all of these issues. For example, the current JCT Standard Design and Build contract (2011 edition) only refers to copyright and does not cover the ownership and licensing of other intellectual property rights such as database and design rights. Future uses for BIM models would also not be covered.
Issues concerning the ownership of information, along with others, will need to be negotiated and dealt with in the contractual documents for BIM-based construction projects, including the terms of appointment for all members of the professional team. There is currently no standard approach and, given the infancy of these projects and the new challenges they present, it is going to take some time before a standard approach and standard terms and conditions emerge. For the time being, employers, contractors, and professionals entering into contractual arrangements for projects incorporating BIMs will need to give careful thought to ownership rights.
Kim Walker and Mark Stephens assisted Martin in preparing this article.