In the Age of Digital Design Collaboration…Who’s protecting your copyrights?

T-squares and triangles are gathering dust as architects, structural engineers, contractors, and other construction professionals increasingly utilize Building Information Modeling (BIM). BIM is an integrated digital design process that allows increased efficiency, fluid design, and collaboration on construction projects. Traditional roles in construction are being blurred and many parties may be performing design work in BIM even though they are not licensed design professionals. While BIM provides many advantages for construction professionals, it may also create problems, especially involving intellectual property rights. With multiple parties contributing to the project design model, sharing information and adding to the design; the question of who owns the model may arise.

The most desirable practice is to clearly set forth copyright ownership rights and responsibilities in the original contract documents. Focusing on the legal issues associated with BIM requires users to contemplate and address these issues prior to commencement of a project. Without such contract provisions; designers, engineers and others may find themselves between a rock and a hard place when trying to protect their copyrights. They also then face the potential risk that their work product will be used on subsequent projects without compensation or approval.

The design of a building, set out in architectural plans, technical drawings, automated databases, or other instruments of professional service, is subject to copyright protection under various federal statutes. Under present copyright statutes, the copyright contributed to a "collective work" is distinct from the copyright in the collective work as a whole. As a result, there are unique intellectual property right issues that will need to be addressed in the contract documents for projects utilizing BIM.

One goal of the contract provisions is to protect the individual copyrights of the architect and the individual contributors to the BIM. Pursuant to provisions of the American Institute of Architect (AIA) and the Engineers Joint Contract Documents Committee (EJCDC) standard contracts, it is presumed that the design professional retains ownership to all intellectual property, presumably including any work within a computer model.

For example, AIA Document E202-2008, Building Information Modeling Protocol Exhibit, extends copyright protection for the architect and other contributors to a building information model, stating that a "Model Element Author does not convey any ownership right in the content provided" to the model. Additionally, under the Consensus Docs 301, BIM Addendum, Section 6.1, each party owns all copyrights in all of that party's contributions to the model unless they specifically transfer the copyright in writing. Under such provisions, contributions to the model do not deprive a contributor of its copyright.

Another goal to be addressed in contract documents is the protection of an architect's copyright to all or portions of the BIM, while ensuring that collaborators and the owner can use the BIM for project purposes. A license is a common method of providing limited use to another party while maintaining copyright protection and ultimate control. For example, under the AIA owner-architect agreements, an architect grants the owner a nonexclusive, limited license to the instruments of professional service. Similar provisions may be included to allow use of the instruments of service for the specified project purposes only. The license does not convey the architect's inherent ownership of the copyrights. Rather, the architect allows the owner to use the documents for limited purposes associated with the specific project.

However, consider the situation where a structural engineer wants to use his/her work, which has been integrated into the BIM, on a subsequent project. Would the structural engineer be able to unbundle the design to isolate its structural elements and concepts? The likely answer is no. Therefore, a BIM project collaborator is well advised to either address these issues in the contact documents or maintain a means by which to identify or isolate its contribution to the process.

At present, there is little guidance from the courts regarding copyright ownership of all or portions of a BIM. As BIM digital design processes are increasingly used by architects and collaborators, the legal landscape regarding copyright protection will expand and develop. Stay tuned for updates regarding those developments.

BIM is a useful tool. However, such a collaborative design process creates unique legal implications for the protection of intellectual property. As a result, construction professionals are wise to consider carefully such implications and ensure that appropriate language is included in the contract documents. The legal copyright issues concerning BIM are complex and constantly developing. Consult with an attorney to protect your interests prior to beginning a project utilizing BIM.

Parker is a member of Smith Haughey Rice and Roegge's construction and real estate team. rparker@shrr.com or 231-486-4504.

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