Data-sharing is one of the 4 essentials for BIM.
The National Infrastructure Commission report Data for the public good 2018 states
Data can improve how our infrastructure is built, managed, and eventually decommissioned, and real-time data can inform how our infrastructure is operated on a second-to-second basis
Construction projects have always required project partners to share information with each other.
BIM creates new methods of sharing and storing that information to ‘form a reliable basis for decisions‘ (ISO 19650-1 definition of BIM).
As we move towards digital construction, the use of paper as a method for sharing information becomes less attractive and may result in paper-based projects becoming unmarketable as owners/occupiers realise the benefits of digital information.
But we cannot manage informaton better without clarity. Clarity of functions, responsibility, authority and the scope of any task are essential aspects of effective information management. Functions should be embedded into appointments, either through a specific schedule of services or by referring to more general obligations [ISO 19650-1 paragraph 7.1].
Rights in Information
Information attracts certain rights (copyright, design rights and database rights). The Copyright Designs and Patents Act 1988 protects the author’s rights in its information, so project partners and stakeholders need a licence to use, copy or adapt any designs or data provided by a project partner.
Copyright clauses in existing construction contracts tend to cover:
- ownership of the original representation of the idea or information
- non-exclusive irrevocable and royalty-free licences (access) for specific uses to specific parties
- limits on liability of designers to purposes for which that data was provided (protections against misuse).
Similarly, for BIM-enabled projects, we need to consider data ownership, data access and data misuse. Some of the additional considerations for a BIM-enabled project include:
- ownership of the model(s) into which data is inserted
- ownership of data extracted from model(s) during construction, operation and demolition
- data compatibility, security and archiving
- the legal status of the federated model(s).
All of these must be made clear for the smooth running of a construction project. In a 2017 case, once the consultant’s involvement for early design services ended, the consultant revoked access to its data in a password-protected public database, equivalent to a common data environment. The contractor was awarded an injunction allowing it to continue to use the public folders containing the consultant’s design data, provided the consultant’s fees were paid.
What should you do?
Your project contracts need to set out best practice on how to create, collect and share data for the lifecycle of a project, by reference to standards such as PAS 1192 or ISO 19650 and protocols. Contracts also need to clarify how:
- clashes, inaccuracies and inconsistencies in data are resolved (collaboratively or by the contract administrator?)
- project partners are warned (in advance) or notified (after the event) of data changes
- the time/cost/quality consequences of data changes are allocated between the project partners.
To ensure there are no issues with data rights, your project contracts need to agree ownership and licence aspects before you share data (as there is no settled good practice to fall back on) and to consider who should control access to common data if a dispute occurs, payment is late or a project contract has to be terminated.
See Trant Engineering Ltd v Mott MacDonald Ltd  EWHC 2061. Full judgment available from Keating Chambers.