Keeping BIM on the right side of the law

The adoption of multi-party BIM models will need careful legal underpinning. CM asked law firms Brodies and Fenwick Elliott for their views

Does sharing data mean sharing liability?

BIM carries on where three-dimensional CAD leaves off, adding fourth and fifth dimensions (commonly viewed as cost and time) and the prospect of further dimensions in the future.

Due to a lack of computing power and the software currently available, full implementation of BIM, including the integration of architectural, engineering, services and contractor information into one mutually accessible model is still several years away for most of us.

But on the grounds that it’s never too soon to be prepared, it’s worth flagging up two sets of legal issues that contractors and consultants need to think through: intellectual property rights and professional indemnity issues.

At present, the treatment of design models created separately by architectural and engineering teams is no different to that of the less complicated 2D models and plans. Each of the common suites of appointment documentation from the RIAS or RIBA, the ACE or the NEC contracts, provide for a licence for the employer to use the information under the contract, with the consultant retaining ultimate ownership.

Collaboration conundrum

But things will become more complicated when the different designers’, consultants’ and contractors’ input goes to create one single model. In a collaborative work, UK intellectual property law generally holds that separate copyrights will exist if the work contributed by each person or parties is distinct.

The advent of BIM and the storage of all project information in a single, continuously updated model, means that an individual collaborator’s intellectual property is far more accessible to other collaborators. It could even result in all of the collaborators holding joint copyright in the model, making further exploitation difficult because each holder of the joint copyright would have to agree to any proposed licence or assignation.

Confidentiality may also be compromised. For example, BIM could lead to the misuse or reuse of a collaborator’s contribution without proper compensation, or inadvertent sharing of proprietary information, manufacturing process data or patented processes.

At present, the industry’s standard appointment forms do not deal with such situations, so collaborators will have to document the intellectual property arrangements on a case-by-case basis. Questions will include:

l Should all parties each own the copyright in their individual contributions?

l Do mutual obligations of confidentiality need to be augmented?

l Should one party own the copyright to the BIM? If so, do other parties need to be granted rights to work on the BIM, and should these rights be limited to the specific project only?

If these kinds of issues are dealt with in a co-ordinated suite of contracts for a project, BIM can be harnessed to ensure all contributions to a collaborative work are distinct and protected from the contributions of the other parties.

Whose fault is it anyway?

At present, if there is a mistake in an architectural detail then the employer looks to the architect. If a structural element is undersized or defective, the employer looks to the engineer. If, however, there is a defect in a model which is a collaborative work, is it the design team as a whole or one member of it who would be responsible?

Arguably the designer responsible for the defect should probably bear most, if not all liability. Nevertheless, there is a possibility of joint and several liability for all unless this is carefully excluded by the terms of the collaborators’ appointments.

While professional indemnity insurers will normally assist, it is not unheard of for consultancies to cease trading without run-off insurance cover. Some might have significant excesses on their policies or allow their insurance position to slip.

At present, it appears that BIM does not give rise to any legal issues not already seen with 2D or 3D CAD. However, when main contractors, sub-contractors and consultants contribute to one model, clients and everyone in the supply chain will have to look again at contracts and appointment documents, clarifying intellectual property rights and liability. 

Alisdair Matheson is a construction lawyer and John McGonagle a technology lawyer at Brodies.

Will confidentiality mean encoding BIM data?

BIM is the construction industry’s buzzword. If you want to secure that next project or market your company as a leader in innovative, efficient design, you would be well advised to include the acronym at the front of your marketing strategy or bid submission.

Clients are increasingly requesting evidence of BIM from contractors and consultants, and the government’s chief construction adviser, Paul Morrell, has said that it may become mandatory on publicly procured projects.

The first step in tackling any legal issue is to understand how the project is going to use which aspects of BIM. This needs to occur right from the outset, so that any appointment documents and/or building contracts can take BIM into account. Indeed, matters such as insurance cannot be addressed unless this is known and co-ordinated from the start.

Many of the legal issues associated with BIM are concerned with intellectual property (IP) rights and copyright. BIM is often not simply one 3D model which many consultants and subcontractors contribute to — it’s more likely to comprise several models, each created by different consultants. All models are then referenced and co-ordinated to create the whole picture.

 If this is the case, then who owns the model and the IP rights contained within it? In short, where there is more than one model, ownership may rest with more than one party.

Traditionally, when constructing with 2D drawings on paper, the general position, unless otherwise agreed, is that the designer retains the IP rights of the design and the employer has license to use that design for the construction of the project. With BIM, the position is no different. Unless otherwise agreed, each designer or manufacturer owns the intellectual property rights in their own 3D model.

So, in some respects, provided that any issues are appropriately incorporated into the appointment documents, IP rights should not be a major stumbling block to using BIM. 

Sense and sensitivity 

Confidential information, however, may prove to be a more sensitive issue for some consultants or suppliers. Trade secrets and confidential details necessary for the manufacture of  certain components will need to be incorporated into the suppliers’ BIM models. Some may feel uncomfortable with the release of this information for use in other consultants’ models, particularly as the ease of data transfer offered by today’s technology increases the likelihood of third party access.

Confidentiality clauses can be incorporated into appointments and building contracts, or a project-wide confidentiality agreement can be signed by all parties. However, on a more practical level, parties must consider how and to what extent each consultant is going to use the other’s model. Is it essential that all manufacturing and material information is embedded in the model provided to the architect? Depending on the extent to which BIM is used, could symbols or labels be used on the model until the time for fabrication arrives, when the confidential manufacturing information can then be inserted?

Given the current software and technologies available, BIM is not yet a seamless process from design through to manufacture. A two-step process is still often implemented to translate or extract data necessary for the final manufacturing process, particularly when BIM has not been fully considered from the start of the project.

The key to BIM is not in the details of the legal issues, but in the close collaboration of all designers, engineers, contractors and suppliers, a a fundamentally new mindset for the industry. However, if the advantages and efficiencies of BIM are to be maximised, this shift is imperative.

Stacy Sinclair is a US-trained architect and a trainee solicitor at Fenwick Elliott. 

What’s on your iPhone?

Bernard Keogh MCIOB, managing director, Arque Construction

Quick Guide to Construction Claims by Madhav Nadarajan (ebook)

Available from Apple App Store, £2.39

If this had been a conventional book, I wouldn’t have read it! But with an iPhone, if you’ve got a spare few minutes waiting for a meeting, you might as well.

The book is really international rather than UK-focused, but it covers general principles applicable to all contracts, including JCT. In fact, I was surprised how relevant and informative it was.

There is an interesting section on ‘cause and effect’. When contractors are submitting claims and variations, they tend to roll everything up together. But the book makes the point that it is better to treat each issue separately, leading to a more robust claim.

I often go to legal seminars and would say that I know the basics. But in the heat of a situation, you can suffer from ‘selective memory syndrome’. Having the ebook puts the issues front of mind. It helps top up your knowledge and keep you plugged in.

John Eynon MCIOB, proposals manager, Wates Construction

Site Pad by Fresh Design Base

Available from www.sitepad.co.uk, £5.99

Although I’m not really a CAD monkey, I can see that this tool would be useful.

It gives you a library of CAD elements and basic design tools from which you can create drawings or diagrams.

As a site architect — a job I used to do — at the moment you might do a sketch of a problem on site, take a photo of it and email it back to the office. In my generation, I drew the problem on graph paper, then faxed it!

But with this app, you can do a sketch on your iPhone, share it with your colleagues, and discuss it in real time — you get the answer or resolve an issue straight away. 

It’s a challenge to sketch on an iPhone screen, it would work much better on an iPad. But I do think the idea’s got potential.

It costs £5.99, which is reasonable, but then I realised you have to set up an account to get access to the user guide. For £6, I would expect that to be included.

Zumtobel’s Map of Light

Available from the Apple App Store, free

This is the way things will go in the future, as a means of receiving information about products or suppliers then carrying it around with you. But it’s still in the early stages, and companies are on a learning curve.

The app is a version of an online database of 500 lighting installations worldwide, as well as information on the product range. There’s a function called “around me”, which  call up the nearest projects in the vicinity, or you can send pdf files straight from the app.

“The idea is good, but there isn’t enough hard information there — for instance on sustainability ratings or energy efficiency — to make it useful to someone making specification choices. Nice images aren’t enough to decide to use a fitting or not.

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