BIM Model and IP : the need of Digital Proofs

Who owns the digital model?

One should ask about who owns the digital model built by everyone in a collaborative mode, and the BIM protocol rarely addresses the legal problems of the Intellectual Property in that process. Anne-Marie Bellenger and Amélie Blandin ask in their book “le BIM sous l’angle du droit” (“BIM from a legal point of view”) for the BIM protocol to be clear and precise (…) in the distribution of tasks between the different actors in order to secure the identification of each other’s respective obligations and related responsibilities.”

  • Do we know exactly what is transmitted (which files and which formats?) From to who? What is the impact of a post-transmission format conversion (Native to IFC and vice versa)?
  • Do we really know the original authors (embedded object libraries, BET calculation notes)?
  • By default the Client owns the copyright of this composite work : is this an explicit transfer of rights ? 
  • Finally, is there really any way for the authors to assert their rights?

Transmitting data from multiple authors to a single shared document (the digital model) is legally complex, as it challenges conventional contractual commitments between disciplines. Transmitting the right to use the digital model is no less problematic.

The report “Droit du numérique & bâtiment” (Digital Rights & Building) as part of the French Digital Transition Plan in the Building (PTNB) is explicit on that topic.”The digital model mixes a large number of intellectual property rights: know-how, copyrights, patents, designs and models, trademark rights, database rights but also contributors and therefore contributions from these last.”

3 types of systems 

And this report describes precisely “three types of regimes when several actors contributes“:

1.      “The composite work is a new work in which is incorporated a pre-existing work without the collaboration of the author of the latter. The author of the first work is thus not the author of the composite work.””The last contributor of the model only will have the ownership rights on the digital model.“It is the result of a collaborative work of BIM level 2 where each contributor, author of his model, participates in the composition of a federated global model whose project management is the final author.

2.      “The collective work is a work created on the initiative of a person who edit it, publishes it and discloses it under his direction and in his name.””The collective work would then be the property of the natural or legal person under whose name it is disclosed, that person would be invested with copyrights.“It comes from a collaborative work between the BIM level 1 and level 2 where a person (the BIM manager for example) is the author of the digital model by modeling on behalf of other stakeholders.

3.      “The collaborative work is a work on which several authors have worked. The authors worked together to develop the work in such a way that it is impossible to accurately determine the contributions of the various authors. “”In the case of a collaborative work, each of the authors, if he furnishes proof of his collaboration, is invested with copyright in the work in co-ownership.””In our opinion, this collaboration scheme is very difficult to manage because of the many authors of the digital model, which could thus block the exploitation of the model in its entirety, especially in a later phase where data from the model would be used.“It comes from a collaborative work of BIM level 3 where each actor contributes simultaneously on a shared central digital model.

The need to go through a contracting process is therefore stronger, to avoid having one of the authors blocking the exploitation of the model. “ What Olivier Celnik confirms in the preface to the book “BIM from a legal point of view“: “Following the conclusions of the Pican report, we admit that BIM has a contractual essence , not a legal  follow the law but the onctract   is called to be essentially contractual, and not legal: it is not the law that will set a unique and rigid framework but, on the opposite, the contract that must take into account the specificities of each project, with its context and its actors.”

The blockchain as “identification of the author” and “proof of his collaboration”

This new traceability technology brings a relationship of trust between the multiple actors of construction by proving their interventions on the digital model. For each document exchanged, the blockchain is able to create an identifier, a unique digital signature, and to anchor its personal contribution timestamped in the chain of interventions that allow to model together the digital model. It is therefore possible to completely trace the chain of participations (data and documents) and thus ensure and protect all contributions of stakeholders in the digital model by prior art. Tomorrow, with, everyone will leverage the Blockchain capacity to protect his rights easily and in full  transparency. The contract of co-ownership of the digital model is clear and can be used with confidence during the entire life cycle of the building.

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