Copyright and confidentiality issues have mainly focused on the employer or end user having the right to use hard copy documents produced by contractors’ and consultants’ teams throughout the project itself and for future maintenance and possible extension. These will continue to apply to projects which adopt BIM, but there are new issues as well.
At BIM Level 2, each contributing party produces its individual inputs using various software platforms. These “inputs” vary, but can include design data, cost data, design processes, tables, databases and graphical information. Using BIM software specifically designed to interface between the contributors’ various software platforms, the inputs are coordinated to create a single federated but cohesive model.
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From a copyright perspective this is largely business as usual. However, one of the key benefits of BIM is the potential to assist and streamline the provision of facilities management services during the life of a building. Copyright licences from contributing parties need to be sufficiently wide in scope to include use of the works for the future lifespan of the building. Some existing drafting may need amending to clearly cover this.
It is also possible that copyright will exist in the federated models as well as the inputs from contributors. A BIM information manager, for example, might use sufficient skill in adapting the software used for the project and collating the inputs of each contributor to become the owner of the copyright in the model itself.
As project information is stored in federated models throughout a project, each contributing party’s intellectual property is more accessible to other contributors and end users of the model (such as the developer, tenant, purchaser). As the model shows the results of patented processes and designs as well as “knowing” the building codes, algorithms and applicable engineering principles, confidential information is more open than before.
Mutual confidentiality and non-disclosure clauses should be used to deal with and compensate for possible misuse or re-use of a contributor’s input, or the inadvertent sharing of proprietary information, manufacturing process data or patented processes.
The Construction Industry Council has recently published a suggested form of BIM protocol which provides for a copyright licence but is narrow in scope and does not address the issue of copyright subsisting in the BIM model itself, nor the issue of confidentiality, both of which remain to be dealt with.
By Assad Maqbool, a partner in the projects and construction team at Trowers & Hamlins
