Building information modelling (BIM): the devil is not in the legal detail

BIM is the construction industry’s buzzword at the moment.1 If you want to secure that next project or market your company as the leader in innovative and efficient design, you would be well advised to include the acronym “BIM” at the forefront of any tender submission. Indeed, employers often request evidence of BIM from contractors and consultants on tender returns and even the government may soon be requiring the use of BIM on all of its projects.2 Even so, as Stacy Sinclair discusses, a recent survey carried out by NBS3 revealed that almost half of the UK construction industry had not even heard of BIM. Only 13% of those surveyed were actually aware of and had adopted BIM. Do you know what BIM is?

What is BIM?

BIM is essentially the process of creating and managing information, typically in a three-dimensional computer model, which embeds data relating to construction and utilises parametric design. If employed to its full extent, it is a tool used as part of the design process and from construction through to maintenance of the completed project. NBS defines BIM as:

“a rich information model, consisting of potentially multiple data sources, elements of which can be shared across all stakeholders and be maintained across the life of a building from inception to recycling (cradle to cradle). The information model can include contract and specification properties, personnel, programming, quantities, cost, spaces and geometry.”4

Some may view BIM simply as a glorified 3D model. The aim of BIM is to do away with the two-dimensional plans, sections and elevations traditionally used in construction. However, the intention and its capacity go well beyond this. Although the ability of BIM is arguably limitless, it is often not used to its full extent and therefore the degree to which it is used varies greatly. The BIM Industry Working Group, a group invited by BIS and the Efficiency Reform Group from the Cabinet Office to look at the benefits of BIM, recently identified four “Maturity Levels” to ensure clear articulation of the expectation and extent to which BIM would be used on a project.5 These levels ranged from Level 0, which is the unmanaged use of CAD probably in a 2D format, to Level 3 which is a fully open and integrated process with a collaborative 3D model with common data and potentially employing concurrent engineering processes. With such a diversity of options, it is imperative for everyone involved to define right from the outset of the project the extent to which BIM will be employed.

The good and the bad

On a positive note, 72% of those surveyed6 agreed that BIM was the future of project information. This is not surprising as some of the advantages cited of BIM include:

(i) the detection of clashes between the various structural and service elements prior to commencement on site;

(ii) the use of the 3D model by the supply chain;

(iii) greater cost certainty;

(iv) increased productivity; and

(v) greater collaboration throughout the design, procurement and construction process.

However, it is also frequently claimed that various legal, contractual and insurance issues arise with the implementation of BIM which ultimately pose a barrier to its development or success. Common issues include copyright, intellectual property rights, ownership of the model and sharing of data, insurance and liability, and integration within the existing standard form appointments and building contracts. This was recognised by the BIM Industry Working Group and one work stream was dedicated to reviewing these issues.

Intellectual property rights

Of all the possible legal issues associated with BIM, intellectual property rights and copyright issues appear to cause the most concern. This is likely to be because when using BIM to its full extent, it is often not simply one 3D model that many consultants and subcontractors contribute to. BIM is more likely to be made of several models, each created by different consultants each with their own embedded data. All models are then referenced and coordinated to create the whole picture by an “information model manager”. If this is the case, then who owns the model and the intellectual property rights contained within? In short, ownership may well rest with more than one party.

In the traditional method of construction with the use of 2D paper drawings, the usual position, unless otherwise agreed, is that the designer retains the intellectual property rights of its own design and the employer has licence to use that design for the construction and other related uses. With BIM, the position is no different. Unless otherwise agreed, each designer or manufacturer owns the intellectual property rights in its own 3D model. So, in some respects, provided that any issues are addressed right from the outset and are appropriately incorporated into the appointment documents where necessary, intellectual property rights should not be a major stumbling block to the use of BIM, this follows the traditional approach. Where they become somewhat more complex is because of the inherent collaboration required in the use of BIM.

The BIM Industry Working Group did not consider that intellectual property rights would be a barrier to BIM adoption. However, it did identify that where BIM is used at Maturity Level 3, it is unclear where ownership of the copyright of the whole model will reside. Ownership of the copyright of the individual contributions from the consultants or subcontractors will not be affected; however, where the model manager uses sufficient skill in the software to produce the model, he or she may then have the copyright ownership of the model. The BIM Industry Working Group advises employers to be aware of this issue and to obtain an adequate licence or assignment where required.

Confidentiality

Confidential information, however, may prove to be a more sensitive issue for some consultants or suppliers. Trade secrets and confidential details necessary for the manufacture of certain components may need to be incorporated into the suppliers’ BIM models. Some may feel uncomfortable with the release of this information for use in other consultants’ models, particularly as the ease of data transfer offered by today’s technology increases the likelihood of third-party access. Confidentiality clauses can be incorporated into appointments or a project-wide confidentiality agreement can be signed by all parties. However, on a more practical and tangible level, parties must first consider how and to what extent each consultant is going to use the other’s model. Is it essential that all manufacturing and material information be embedded in the model provided to the architect? Depending on the extent to which BIM is used, could symbols or labels be used on the model accessed by the design team until the time for fabrication arrives at which time the confidential manufacturing information can then be inserted?

Conclusion

The first step in tackling any legal issue related to BIM is to understand how the project is going to use which aspects of BIM. This needs to be done at the outset so that any contract document can take BIM into account and include a schedule of BIM deliverables and BIM protocol. Given the close collaboration envisaged by BIM and the likely use of a shared model, it must be made clear who is responsible for which elements of the design. The key to BIM is not in the legal details. Its success depends on close collaboration at the outset by all designers, contractors and suppliers. Whilst, this ultimately may be a fundamentally different way of procuring a project, if the advantages and efficiencies of BIM are to be maximised, then this shift in methodology must be adopted by all.

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• 1. The comments of Paul Morrell, the government’s chief construction advisor at a NBS round table event in May 2011.
• 2. The Final Report of the Low Carbon Construction Innovation & Growth Team, Autumn 2010, recommended that all central government projects over £50 million should be required to use BIM.
• 3. NBS BIM Report, March 2011, NBS, www.thenbs.com/bim.
• 4. Ibid, page 10.
• 5. BIM Strategy Paper, A report for the Government Construction Client Group, BIM Working Party, March 2011.
• 6. NBS BIM Report, March 2011, p 11.