Who controls the model? Who owns the data? Professor Rudi Klein, Barrister Chief Executive, SEC Group President, NEC Users Group

Transcription

1 Who controls the model? Who owns the data? Professor Rudi Klein, Barrister Chief Executive, SEC Group President, NEC Users Group

2 WHY ARE ISSUES OF CONTROL AND OWNERSHIP IMPORTANT? BIM is an enabling tool for information sharing within the delivery process from design and planning to delivering the required asset performance and operating the asset. Data inputs and modification of data have to be managed and modelling interfaces have to be coordinated to avoid clashes and duplication.

3 WHY ARE ISSUES OF CONTROL AND OWNERSHIP IMPORTANT? (2) Access rights need to be controlled e.g. can the cladding contractor use data relating to the design of the steel structure? Extent of reliance on the model and data therein needs to be addressed. Defining ownership of the data is a pre-requisite to defining who has responsibility for the data and to ensuring that proprietary rights are protected.

4 Implementing BIM requires detailed planning and fundamental process modifications for the project team members to successfully achieve the value from the available model information. (Chap 1. BIM Project Execution Planning Guide, Pennsylvania State University.)

5 A BIM IMPLEMENTATION PLAN IS ESSENTIAL Identify users of the model(s) and which sections of the project are to be modelled. What models are to be created and by whom? Definition of content of each model and level of detail required at specific milestones.

6 Who has access rights and to what data? How is modelling process to be controlled and managed? Will electronic data transfer agreements be required to govern matters such as IP and access rights?

7 MANAGEMENT OF THE MODELLING PROCESS Who has responsibility for overseeing model development, controlling inputs and access, changes to the model and ensuring that parties are made aware of changes and updates? Larger projects may require the appointment of a BIM co-ordinator to carry out these tasks. One of the US BIM Protocols - ConsensusDocs 301 BIM Addendum refers to the appointment of an information manager.

8 The procurement method adopted may dictate who meets the cost of a model manager (e.g. Such cost may be met by the lead contractor under a design and construct arrangement). But responsibility for managing the model is likely to attract significant legal liability. Design data exchanges in relation to major engineering elements should be owned by designing consultant and designing specialist engineering contractor; both should put the data together from the outset so that it is fit for production.

9 OWNERSHIP OF THE DATA Governed by the Copyright Designs and Patents Act Copyright rests in the author of the work (i.e. the party who originates or creates it). Copyright is a property right...in...original literary, dramatic, musical or artistic works [s.1(1)(a)]

10 ARTISTIC WORKS...a graphic work...or work of architecture being a building or a model for a building.... [s.4(1)] Graphic work includes any painting, drawing, diagram, map, chart or plan. [s.4(2)]

11 COPYRIGHT ISSUES IN BIM Specifying the BIM uses(s) for the project will help identify copyright issues e.g. if model is to be used for managing the facility post-completion or for extending it, copyright owners will need to consider the grant of a license to use their design/data for this purpose. Copyright issues could become more complex where the modelling process is iterative involving a number of contributions becomes difficult to identify who originated what; digital signatures or watermarking should be a solution.

12 A US SOLUTION The author of a model element is the party responsible for developing the content of a specific Model Element to the [level of development] for a particular phase of the Project Model Element Authors are identified in the Model Element Table.... AIA Document E

13 WHAT IF THE MODELLING IS PRIMARILY GENERATED BY THE SOFTWARE? In the case of a literary...or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken. In this situation the IP would rest in the organisation owning the relevant software/hardware.

14 OWNERSHIP OF THE DATABASE Under the Copyright etc Act literary work includes a database that is defined in s.3a(1) as: A collection of independent works, data or other materials which (a) Are arranged in a systematic or methodical way, and (b) Are individually accessible by electronic or other means.

15 OWNERSHIP OF THE DATABASE (2) A literary work consisting of a database is original if by reason of the selection or arrangement of the contents of the database the database constitutes the author s own intellectual creation. [s.3a(2)] Therefore the database could be owned by the party who has assembled it and, in the process, significantly re-configured the information. This right is additional to the IP rights already existing in the material within the database.

16 SUMMARY Issues of control and ownership of the IP in the model are critical in managing the data build-up, coordinating inputs and interfaces, protecting IP rights and defining responsibilities in respect of the integrity of the data. In this context a BIM implementation plan agreed by all key participants including the supply chain is absolutely necessary. Because of the nature of the modelling process there could be problems in establishing the authorship of the data but this can be addressed in the BIM implementation plan.

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18 Who controls the model? Who owns the data? Professor Rudi Klein, Barrister Chief Executive, SEC Group President, NEC Users Group