Construction Law: Legal Challenges

BIM Copyright & Intellectual Property Right Issues

by Danielle Maya, Cotney Construction Law

(Editor’s Note:  Danielle Maya is a partner at Cotney Construction Law and has over 20 years of experience as an attorney.  Cotney Construction Law is an advocate for the roofing industry and General Counsel of Western States Roofing Contractors Association.  Maya can be reached at (866) 303-5868.)

Building Information Modeling (BIM) is one of the most promising developments in the construction industry, but it has also created new legal challenges that were not previously present in the paper-based design and construction process.  BIM simulates the construction project in a virtual environment and some of the benefits of using it include decreased project cost, increased productivity, and reduced project delivery time.  However, with the vast potential of using BIM, there are legal issues and risks that you should consider.

         BIM is not easily defined, but one definition is an intelligent simulation of architecture in which the information is digital, spatial, measurable, comprehensive, accessible, and durable.  These qualities allow BIM to be used in a variety of ways, including design visualization and comprehension, structural analysis, preparation of design drawings, system coordination, constructability reviews, communication, integration of models of various players, and cost estimating.  One of the most important variables in using BIM is the degree of its integration into the entire project-delivery process.  Architects can use BIM to visualize the project and achieve greater dimensional precision in the design.  In the process, the architect can identify system conflicts with other parties and issues that would otherwise remain undiscovered until the project is constructed.  They can then address those issues far more efficiently and inexpensively when they are discovered prior to starting construction.

         A risk in using BIM is a possibility of altering the traditional allocation of responsibility and liability exposure among the parties.  Architects are worried about the improper use, reuse, or alteration of their designs and the risk of liability for changes made to the models after the models leave their control.  In response to these concerns, designers and other creators of electronic information have come to rely on disclaimers, releases, and indemnification provisions, intended either to accompany or precede any transfer of their electronic data, which can help reduce liability exposure.

         The other major risk that parties run into when using BIM is the lack of determination of ownership rights of the BIM data when the digital models are shared between the parties.  The general legal principle applicable to the ownership of building information models is deceptively simple.  Absent contract language to the contrary, the party that creates the model owns it.

         However, it is considerably more complex because nearly every model includes, or is derived from, information contributed by numerous parties.  The American Institute of Architects (AIA) contract generally states that the architect shall be deemed the author and owner of their respective instruments of service, including the drawing and specifications.  But, the AIA contracts grant the owner a nonexclusive license to use the architect’s instruments of service exclusively for purposes of construing, using, maintaining, altering, and adding to the project.  An owner cannot transfer this license to another party without the prior written agreement of the architect and any unauthorized use of the instruments of services shall be at the owner’s sole risk without any liability to the architect.

         One of the most effective ways to prevent disagreement over copyright and intellectual property right issues is to specify the ownership rights and responsibilities in the contract.  During the initial planning phase of the project, the owner and the key modeling parties should make decisions about the use of BIM on the project.  Next, these decisions need to be fully integrated into the contract.  Additionally, the agreed-upon processes and deliverables should be incorporated into the entire set of the project agreements.  It is critical that the contract addresses the copyright data submitted by each party to the BIM as well as the copyright to the model itself.  Each party contributing data to the BIM should represent and warrant that it owns the copyright or has a valid license to the data it contributes to the model.  AIA also has standard forms that are used to document the agreed-upon protocols and procedures that will govern the development, transmission, use, and exchange of building information models on a project.

         BIM has the potential of fundamentally changing how the industry designs and constructs buildings.  That is why it is crucial that BIM-related issues be dealt with early in the construction process by including disclaimers and contract terms that limit liability and reserve ownership rights in the BIM data.  Because the BIM process is a complex relationship between many different parties, an architect should consult an attorney before negotiating BIM terms or entering into a contract where the project is planning on using BIM.

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