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How to Protect Design and Copyright for Building Information Modeling (BIM)?

posted 1 year ago

Over the past decade, the architecture, engineering, construction and Operations (AECO) industry has undergone several developments, particularly in the area of information technology. Building Information Modelling (BIM) is now globally considered a better solution to enormous building problems, which made a huge effect on the building and construction industry. The industry is facing a practical challenge in protecting design when conflict arises between owner’s and architect’s proprietary rights.

“We shape our buildings; thereafter they shape us.” – Winston Churchill

There was a time when pencil, paper and complex drawing were the base of construction planning, creating a tiring process with lots of loopholes. However, things have changed. It is now all about Building Information Modelling (BIM), which has been part of the construction industry for some time now. It connects the AECO professionals to design, build and operate infrastructure more efficiently. It is more than just 2D or 3D modelling. It is the process of designing a building collaboratively using one cohort system of computer models rather than as a separate set of drawings.

So, what does make BIM so exciting ?

It provides insights into design constructability, reduces errors, and improves the efficiency and effectiveness of the construction phase. It can help owners in predictive maintenance, asset tracking and facilities management for future changes and renovation work. It does not solely refer to buildings, but to all sectors that have to do with construction, including roads, railways, utilities, bridges, tunnels, structures, architecture, topography, etc. BIM can be classified into different levels.

Where does intellectual property come into this conversation ?

Let’s take a situation – an architect draws a design plan for the construction of a cafeteria. The contractor executes the work as per the plan. However, the owner decides to reuse the design with some small changes for a second cafeteria. In such a case, apart from monetary consideration for services of design, does the architect have any other rights? Can he stop the owner from making changes to the design suggested by him? The answer to all such questions lies in Copyright and Design Law.

BIM models created in the tendering process before the award of the contract will not usually be registered. Therefore, BIM models cannot be protected by Design Law. Article 10 of Directive 98/71/EC, provides that the protection of designs is subject to their registration. However, unregistered designs can be covered by copyright under the concept of artistic work although EU Member States differ in how national copyright law protects unregistered designs. For instance, the French Intellectual Property Code (Code de la propriété intellectuelle) article L112-2.7, and the Danish Consolidated Act on Copyright 2014, Consolidated Act No 1144 of 23 October 2014 (Bekendtgørelse af lov om ophavsret (LBK nr 1144 of 23/10/2014)) in section 1.1, all list works of architecture under copyright law.

Determining the ownership of IP rights over the BIM model and its elements is necessary to determine the lawful exercise of ownership. Generally, an owner of a model is granted exclusive right regarding the use of Intellectual Property, and consequently to copy and disclose it as it wishes. In BIM Level 3, however, the authors of the model are regularly indistinguishable. However, if the contracting authorities are to be granted ownership of a BIM model jointly with a tenderer or winner, exercising their right by disclosing it to a third party would be contrary to the interest of the other joint owner. Therefore, the French, German and Danish legislatures grant joint ownership of jointly developed BIM models and regulate in their copyright laws the right of the owners in exercising ownership rights.

In this regard, the French Intellectual Property Code Article L.113-3 provides:

‘The collaborative work is the common property of the co-authors. The co-authors must exercise their rights by an agreement. In the event of disagreement, it is for the civil jurisdiction to rule.’

The developers of a BIM model in a tendering process will be the joint owners of the model and the exercise of their rights is governed by the copyright law of the relevant EU Member State. Since the exercise of its ownership rights by each owner can potentially conflict with the interests of another owner, such exercise would generally only be permitted with the consent of the other owner(s). Therefore, the contracting authorities would not have the right to disclose the BIM model to third parties without the prior consent of the tenderer with whom they developed the BIM model.

The possibilities of BIM are endless, the trend in the construction industry is, and when there is something new, people immediately want to assign more risk to it. Thus, companies/individuals have started getting the intellectual property right registered during the initial stage of a project.

Science and technology are developing faster than intellectual property legislation. As a result, previously unknown products of intellectual activity are regulated by general rules. While working and exchanging digital data on a collaborative platform can cause problems related to intellectual property such as if a copyright violation of models and intellectual property enters the court process, it poses a great financial risk and can cause project delays that will result in its loss. Before a project is implemented, there needs to be a clear understanding not only of who owns the model but also of who is responsible for the model. Then, we must consider which actors have the potential to retain the collaborative product for its sustainability. Therefore, it is necessary to conduct a review and synthesis of the related studies to identify the model ownership and intellectual property rights.

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