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Building Information Modelling and Intellectual Property

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Today’s buildings are changing. They are more heavily serviced than ever before and the way in which they are developed needs to reflect this.

New approaches to working and living, the desire to embrace low carbon technologies, complex IT and communication systems and new regulations all mean that the traditional design-bid-build process is being superseded by a more collaborative approach.

Until recently, building design largely revolved around the use of 2D technical drawings. Building Information Modelling (BIM), however, goes beyond even 3D and creates a virtual model of the entire project that reacts to change in the same way the real building would.

Turner & Townsend, the professional services company and acknowledged experts in BIM, describe the approach as ‘a digital representation of physical and functional characteristics of a facility, creating a shared knowledge resource and forming a reliable basis for decisions during its life cycle, from earliest conception to demolition.’

Building Information Modelling facilitates a greater understanding of the project by encapsulating all the elements of a building in one model. A building can be built, tested and marketed in the virtual environment, reducing the potential for costly mistakes or discrepancies and abortive ideas. Fire assessments, the flow of people through the building, safety and cost estimates through to delivery management, whole life asset management and facilities management, can all be tested without ground being broken.

Collaboration

The benefits of this new, more efficient and collaborative working are such that BIM is increasingly being demanded on large-scale projects and, in 2011, the Government announced its intention to require Building Information Modelling on its projects by 2016.

BIM combines technology with integrated working across the various disciplines involved in a project  – which is where its difference lies. Elements of the building are defined in relation to one another; if one element is amended then its relationships with other, related elements are also automatically changed. When implemented correctly, it can underpin improvements in quality and definition and delivery of outputs. Through Building Information Modelling, intelligent data can be captured and managed, adding value to the project. It allows quicker decision making and has the potential to reduce operational costs and risk.

Whole lifecycle

Today, buildings need to be efficient at every stage – capital costs, operational costs and carbon footprint – in their life-cycle; from design and construction through to end use and even demolition. BIM is central to all these objectives as it covers graphical information and data, as well as providing a built record for ongoing management and any adaptation work that may be required. The model is constantly updated and contains all the specifications, operation and maintenance manuals and warranty information so it can be handed over to the building owner. It can also be used to evaluate efficiency and monitor a building’s lifecycle costs and, therefore, help optimise efficiency.

Contractual considerations

The very nature of BIM does away with compartmentalised disciplines and, while beneficial to the development process, can raise issues around copyright and intellectual property (IP). Not only does the model incorporate contributions from numerous parties, but contributors need to impart much more information, and in greater detail, than they have done traditionally. Consequently, the BIM protocol should make it clear that all contributors own the rights over their contributions and provide an indemnity to others who may use their contributions.

As Matthew Hattersley, our partner and head of commercial explains: “Confidentiality, particularly where information shared during the BIM process is sensitive, for example competitive data containing trade secrets, should also be accounted for.”

“This can usually be planned for in a straight-forward confidentiality and non-disclosure clause in the protocol. Contributors are asked to identify confidential data as and when it is incorporated into the BIM so that restrictions on access, copying and transmission can be applied,” he added.

This sharing of intellectual property, combined with the number of contributors and people who can access the model  means that IP provisions need to be more comprehensive than for normal construction contracts.

Ownership of the final model, particularly in relation to how it is used in ongoing facilities management, and the liability of its creators should be made clear from the outset. Limitation of liability is needed in order to allow BIM to work – the liabilities of the various parties should be commensurate with their fees and insurable rights, but without affecting liability for inaccurate contributions.

Negotiating a bespoke set of warranty obligations linked to the long-term use of the model would be prudent, as would expressly excluding what would otherwise be considered implied terms. While the model itself is likely to be the property of the building owner, the data contained within the BIM is a separate issue and different laws will govern each of the different elements.

Being a relatively new approach and one which continues to evolve, there are a number of considerations and risks in using Building Information Modelling, but with proper planning these can be effectively managed.

If you have any questions for a member of our commercial team with regards BIM, contracts and confidentiality please complete our contact form and a member of the team will be in contact.  

Disclaimer: Anything posted on this blog is for general information only and is not intended to provide legal advice on any general or specific matter. Please refer to our terms and conditions for further information. Please contact the author of the blog if you would like to discuss the issues raised.