By KATIE LISZKA
Building information modelling (BIM) is being used increasingly across the construction industry as a tool to reduce costs and encourage good communication and coordination between project participants. It has been used in the US for several years and its use is now spreading across the globe. For example, it has been used by GHD architects on the Palm Jebel Ali project in Dubai, UAE. BIM is the electronic representation of a building and its lifecycle information. It enables the different participants in the project to input information into the model. For example, the architectural, mechanical and electrical, and structural designs are all inputted. Typically, it generates 3D images and allows for conflicts in the information to be recognised. This conflict detection is one of the perceived strengths of BIM, as it provides for swift resolution of potential problems and incompatible designs. BIM allows the impact of a change in one part of the design on another part to be seen quickly.
This will be of benefit in the initial design stages and in respect of variations in the future. BIM is a tool that, along with early appointment and integration of the supply chain, can increase collaboration and prevent redesign and re-engineering at a later date.
Legal approach Two questions arise from the model being created from inputting information from different sources: who owns the copyright on the images generated using BIM; and who is responsible for the designs? This article does not go into the detail of copyright law and how it applies in different jurisdictions or the law relating to negligence and contract, but only considers general commercial principles from an English law perspective.
Copyright ownership Copyright gives protection to an author over the expression of an idea. Subject to meeting the relevant criteria to qualify for copyright protection, designs are likely to be protected by copyright. In an employment context, the copyright in any works created by an employee would usually be owned by the employer. If a non-employee (such as a contract worker or consultant) creates the designs, the commissioning party will need to be careful to ensure that the terms of that individual’s engagement adequately transfer all relevant intellectual property rights.
Where several parties contribute to a work (for example, multiple designers or a team of employees and non-employees), joint ownership of the copyright may arise if the contributions to the end product are not distinct. Any party wanting to copy or use a work of joint ownership would require the consent of each joint owner. In a BIM-generated 3D model, the mechanical design (for example) is distinct from the architectural design, even if they are ultimately shown in a composite image. On this basis, there should be no change to how copyright in each individual part of the design is traditionally dealt with; the relevant designer would still own the copyright on its design. As such, designers should not necessarily be concerned that the use of BIM puts them in a weaker position in respect of copyright.
Their permission will still be required to use their parts of the model. What is perhaps less clear is the position in relation to the final composite image, which may in itself comprise a copyright work of joint ownership (consisting of the input of different designers). Any copying or use of the composite image may, therefore, require the consent of all the joint owners. If it is intended that the composite image should be reused, it would be advisable to set out the parties’ intentions clearly by way of an express contractual acknowledgement, for example, in the appointments or the terms of access to any software package. Each party would presumably retain ownership of its own designs but it may also be appropriate for a single party, such as the lead designer, to be assigned the rights in the composite image.
Liability As for responsibility and liability for design, each designer will be responsible for his own design. For there to be a change in how contractual liability arises, the nature of the contractual obligations would need to change, for example, by having multiparty contracts with joint obligations rather than individual appointments.
For a designer to be negligent, it has to fail to meet the appropriate standard of care, which results in damage. The approach should not change simply because BIM is used. Exposure to negligence claims will only change if what the designer is doing changes. The concern with BIM seems to stem from its creating a larger flow of information between the team. This is, of course, one of BIM’s strengths. Seeing more and seeing it earlier though should not in general terms change the legal position as regards what duty of care a designer or constructor has in respect of that information. No doubt designers will continue to exclude expressly from their appointments responsibility for checking others’ designs unless the responsibility to integrate and coordinate designs is specifically to be part of a consultant’s scope of work. The process of inputting into the model needs to be carefully considered.
BIM enables there to be a very clear audit trail of who inputs into the model. Thought needs to be given to who can do what and a protocol should be developed setting this out. Some standard forms of contract in the US now include provisions to deal with this on projects using BIM. There is probably an additional consultancy cost for projects using BIM, as someone will need to manage the process but, if the use of BIM offers the cost savings it promises, these costs will surely be outweighed by the efficiencies and savings.
New way of working? If the liability of the parties inputting into the BIM process is the same as in the traditional design process, does this generate the full benefit of collaborative working on a project, as the parties are still working in an adversarial environment because they are individually liable and will be seeking to manage and reduce that liability? One answer to this is obviously that BIM could be used to facilitate a less adversarial way of working, where all parties are working in the interests of the project and not themselves. The adversarial component could be removed by the parties, including the client, by waiving liability against one another. This type of approach is an alternative provided for in the ConsensusDOCS standard forms used in the US. The waiver of claims is also supported by industry bodies in other jurisdictions, such as the Strategic Forum for Construction in the UK. The theory behind waiving claims is that it prevents parties from acting defensively and encourages open discussion.
Whilst the logic of this is clear, it should be considered as part of an overall look at the economics of managing risk and also what motivates the different parties. There is an argument that by removing responsibility for defects in what the consultant has created, you are removing the consequences of the consultant getting it wrong and therefore may remove their incentive to get it right. The commercial risk the consultant is taking should be reflected in its fee. A consultant capping its liability should reduce the cost of its services compared to what it would charge if its liability was uncapped. This, of course, does not take into account any other factors affecting the commercial bargaining position of the parties, such as viable alternative consultants. Reduced liability for defects in design should reduce the professional fees. But what about the overall cost to the project? If there is a problem with the design and the risk sits with the client, will it cost more in the long run to rectify than if this risk sat with the original designer? It may be that insurance can provide a solution to managing the risk of defective design where there is a waiver of claims.
One view that is often heard, particularly in public sector procurement, is that risk should lie with the party best placed to manage it. The idea behind this is that the party to whom the risk is allocated is the one best placed to deal with it in terms of original management and any solutions in the event of the risk occurring. In theory, at least, this should provide the best overall value for money for the project. The use of BIM alone does not necessarily change the protection afforded by copyright or a consultant’s liability for its design. To change liability for design, more is required than just using BIM. Removing liability for design may be one way of moving towards a more collaborative way of working but the cost of rectifying defective design does not go away. The risk just moves somewhere else.
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