MDA Law
Intellectual Property on Building Information Modelling (BIM)
Last year I wrote an article, titled “What is Building Information Modelling or else known as BIM?”. With this article I continue dealing about BIM and more in particular want to briefly deal with the issue around intellectual property on BIM.
Who owns the design(s), and who is the lawful owner of the intellectual property of the particular BIM information, which is used in collaboration between the relevant project players on a particular project?
As stated in my previous article mentioned above, I defined the term “Information Providers”, which was defined to be “the people or organisations who contribute to the Information Model and are identified in the Information Model Requirements”.
Reading the above, it is evident that in some (if not in most) circumstances where BIM is used, you will have various people on a project, who will have access (preferably someone authorised in terms of the contract) to the BIM model, to either add into the design or take away or otherwise. These individuals can inter alia include the engineer, the employer’s agent or representative, the contractors (civil, electrical, piping, landscaping, the list goes on) and or the architects etc.
So, to what extent can anyone claim ownership of the intellectual property?
The authors, Peter Barnes and Nigel Davies who authored “BIM in Principle and in Practice”, explains that “Because the client will ordinarily have access to the model as it is being developed, care must be taken to ensure that the intellectual property rights are not lost because of the open and collaborative nature of model development”.
It gets a tricky when you work on a model that might contain confidential or trade secret information, where a model will disclose what a company is planning to build and the processes it will use. The risk is that this information will be broadly circulated in a collaborative team.
Barnes and Davies state that, “Many of the intellectual property issues are similar to those that existed before BIM.” But it is stated further that the intellectual property issues “are amplified by the amount of information contained in BIM, the access to this information by others and its ease of transfer”.
Considering the above, the authors are of the view that where the BIM model is a collaborative work, a single party cannot claim ownership.
Complexed ownership issues and or risks, should be determined and be fully dealt by the contract. This will avoid possible confusion or misunderstanding by the relevant parties. Further, confidentiality agreements should be considered and will be important in circumstances where the information is confidential and where the party who provides such information, wishes to limit the distribution thereof.
In conclusion, when deciding on who owns the model, who owns information in the model, and who has access to the model, Barnes and Davies states that all these relevant questions should be considered when BIM procedures are developed and when intellectual property rights are considered.
Author: Barry Herholdt, Senior Associate
