25 JUL 2018
"The increasing popularity of BIM raises a legal issue over the ownership of BIM data", says Joseph Chung, Partner at Deacons, Hong Kong. "This came to a head last year when, in one of the first UK judgments over BIM, the Technology and Construction Court forced Mott Macdonald (MottMac) to give Trant Engineering access to design data.
Britain’s Ministry of Defence hired Trant to construct a power station in the Falkland Islands. During the tender process, Trant subcontracted preliminary design work to MottMac, for which it used engineering project software ProjectWise so the design teams could share BIM data.
MottMac sent a contract with the terms of payment, licensing Trant to use the designs once it received payment. But Trant didn’t respond to this, and didn’t sign the contract.
The two companies then had a dispute about payment and the scope of the works. MottMac claimed there was no contract. Since its remaining invoices were unpaid, it suspended all work, and invoked its rights over the design data. The company revoked Trant’s access to ProjectWise.
Trant then terminated MottMac’s participation, saying it had repudiated the contract, and then sought access to the design data.
The court ruled that MottMac had to give Trant access to the designs so far. It concluded that there was effectively a contract, based on the documents sent to Trant, and how the two companies behaved.
The court decided that damages weren’t sufficient on such a large project, since they were capped at $1.4 million. So it ruled Trant was entitled to the design data in the public ProjectWise database. Even if there was no contract, MottMac had already accepted payment for the work it had carried out.
Denying access can bring a project to a standstill. But an employer might not have adequate technical resources to host the shared data so that it retains full control. One of the reasons companies are slow to use BIM is the potential time and cost, including training.
What if the project team hosts the shared data, but with regular back-ups by the employer? Singapore’s Building & Construction Authority specifies that each author’s information is intended to be shared with all users throughout the course of the project.
In the UK, the BIM Protocol specifies that the project team member that creates information has the rights, but grants a non-exclusive license to the employer.
The New Engineering Contract 4 (NEC4), which is becoming increasingly popular in Hong Kong, has a clause covering BIM that says the client owns the information model.
Whatever arrangement is used, it is essential that the contract contains clear terms regarding the use of intellectual property, and who should host and control its use. Data access should not become a bargaining chip in a dispute.
On 19 September 2018, RICS will hold the third annual BIM Conference 2018, in Kuala Lumpur, Malaysia.
The conference will take a closer look at Malaysia's Construction Industry Transformation Programme (CITP) 2016–2020 and discuss how the country's construction projects could benefit from the implementation of BIM.
Spaces are limited, but tickets are still available.