Legal issues with BIM and collaborative design

 

As Building Information Modeling is progressively becoming standard practice in design offices of all around the world, it is increasingly evident that the collaborative approach to building projects also brings a considerable share of new challenges. Whereas technical and IT issues associated with interdisciplinary model sharing are often seen by design teams as BIM’s main problem, a potentially bigger concern is arising: BIM collaboration is blurring legal boundaries with regard to the scope of practice of all professionals involved in the conception phase of the project.

Indeed, unlike during the pre-BIM era, the apparition of so-called “collaborative” models imply that the individual contribution of each stakeholder is not clearly defined by discipline-specific project deliverable (such as separate plans for architectural and structural design). Because BIM models are complex arrangements of parametric objects constantly being updated with various information coming from different parties, all contributors now have joint legal responsibilities regarding the content added to the digital BIM file(s):

  • Sharing of risk management → What happens if something goes wrong? Who is responsible and to what extent?
  • Respect of intellectual propertyProtection of patents rights, creative property, confidentiality of information and records
  • Attribution of ownership and authorship of the model Who owns the copyrights of the global collective file?
  • Model Management Who is responsible for the maintenance and update of the virtual model once the building is operational?

As a matter of a fact, if it is true that BIM models and collaborative work induce additional legal considerations, the key to a successful and peaceful BIM cooperation within all professionals is based on two principles:

  1. Collective effort to end the blame culture traditionally prevailing in the construction industry.

Putting less emphasis on the individual interests of each stakeholder and focusing on the collaborative success of the group will not only increase the overall quality of the buildings that we conceive but also boost the efficiency of design teams and is very likely to reduce the costs of each project.

  1. Implementation of contractual documents that are adapted to the BIM reality.

Prior to the beginning of the project, sensitive topics and legal responsibilities must be clarified through a comprehensive confidentiality agreement, which has to be further be approved by each participant.

Potential solutions could be for instance:

  • State distinctive intellectual property licenses for global and specific sections/items in the model that were developed by individual participants;
  • Adopt shared ownership for design copyrights of components that were developed jointly by many stakeholders;
  • Specify the rights of access, correction, and removal of copyrighted elements in the model over a defined time span (i.e. limited to the project lifetime);
  • Restricting the use of all project data for internal purpose only or insert a clause stipulating that any external use shall be subject to the prior agreement of all stakeholders
  • Etc.

In conclusion, one must not neglect the importance of taking all necessary precaution to protect the intellectual property and data ownership of the material developed by the members of the design team. The solution to legal concerns brought by BIM’s new collaborative environment of work mainly lies in the willingness of the stakeholders to perform a shift in their business mentality toward a more flexible and collective approach regarding copyright and intellectual property. Moreover, adopting a ‘no blame’ culture and expanding the boundaries of protectionism to all professionals involved in the conceptual phase, regardless of their discipline in which they are specialized, will not only increase the respect for the work achieved by other members of the team but also improve the overall effectiveness and transparency between all participants, creating a climate of trust from which everyone will benefit.

 

BIM and its legal issues will be also a topic of during a Breakout Session at BIM World MUNICH 2017. The session “BIM & Recht”* will take place on the 29th of November and is accessible for all attendees of the event.

*The conference language will be German.

 

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