Legalese: The problem with BIM
Copyright and liability must be tackled before BIM can reach its full potential, writes Mark Klimt
Unsurprisingly, Building Information Modelling (BIM) throws up a number of legal problems. A BIM model (or series of interrelating models) provides a digital representation of a building’s physical and functional characteristics and facilitates the construction and subsequent operation of a project.
At its simplest, it has been described as ‘CAD on steroids’, but it has much wider possibilities and represents an opportunity for sophisticated sharing of information, such as for the ongoing management of a building, by predicting energy use, performance and maintenance costs.
As an interactive, co-ordinated model that can be interpreted directly by computer applications, it provides an early opportunity to identify design clashes that might otherwise not become apparent until the project gets on site. Properly maintained, it has the potential to be an invaluable aid to the owner or operator throughout a building’s life.
However, a number of issues arise with BIM. Many are a symptom of operating a system that depends on full and open collaboration in an industry that is still characterised by a blame culture and separateness between construction team members.
There appears to be no consensus on how to address these issues, with some commentators arguing in favour of detailed contractual and organisational structures to establish clear and rigid guidelines when people are working in such close proximity. Others say that such comprehensive prescription is not possible and that it is inappropriate to tell professionals how to operate in such detail.
An immediate, practical issue about BIM concerns the copyright and ownership of contributed designs. Where various different design elements produced by separate consultants are fed into a composite model, and then adapted, authorship will become blurred. Depending on how easy it is to ‘tag’ each contribution, copyright of the corresponding area of work would need to be reserved to the designer in the usual way.
However, a key element of the BIM process is that the design will have been produced and adapted collectively making individual attribution complicated. Standard appointments do not provide for this. One solution for this might be an agreement drawn up in advance between all team members that reflects each designer’s copyright of basic design elements, the owner’s need to ‘own’ the BIM at the end of the project, and some acceptance that the BIM cannot be used elsewhere without the agreement of all participants.
Confidentiality is another issue, since information fed into the model will contain detailed specifications, over which the provider will lose control. Consultants will have to buck the trend in construction for comprehensive confidentiality agreements, accept a degree of loss of control, and comfort themselves with the knowledge that the freer exchange of information does at least operate both ways.
Another practical issue is the risk of electronically transmitted information becoming corrupted or altered. Of course, such concerns are not exclusive to BIM projects but because of their nature any such corruption or alteration will be compounded and could therefore have an enormous impact on the success of the project.
The elephant in the room among all these considerations is the question of increased liability. Where designs evolve collectively it will be more difficult for individual consultants to show where their involvement ended, and more difficult to devise a method of advance protection.
There will be no contract between individual consultants but where they work closely together it is likely that courts will hold that there is a ‘special relationship’ sufficient to establish liability for pure economic losses which would otherwise be excluded in tort. Because the project team have the technology and the system to identify problems in advance, it has also been suggested that such a collaborative technological design increases the required standard of a building’s performance. It will also not be possible to issue the usual disclaimer to a recipient about relying on the accuracy of electronic material, because that would render the designer’s input virtually worthless.
It is said that the potential for BIMs has not yet been fully realised; perhaps that is best until these problems are resolved. There have been regular attempts within the industry over the last 20 years for a more co-operative and trusting approach between members of a project team, such as partnering, and encouraging whole teams to move from project to project together. Since BIM accentuates the need for greater trust between members, perhaps they will provide a further push towards bringing separate construction disciplines closer together and a more enlightened approach to identifying and solving problems. If so, that might be its most impressive achievement of all.
Mark Klimt is a partner at Fishburns and specialises in professional indemnity insurance. He is legal adviser to the RIBA and operates the RIBA Legal Helpline