Since the early 2000s, Building Information Modelling (BIM) has become an increasingly popular workflow process in the architecture, engineering, and construction industry (AEC industry). In particular, digital 3D modelling BIM software enables a high degree of collaboration between participants in a building project. BIM software allows architects, engineers, and contractors on a building project to add information and components to a single digital 3D building model. As new components are added to a BIM model, the entire model will update to reflect the new information.
While the rise of BIM software has allowed greater efficiency and collaboration in the AEC industry, it has also given rise to questions regarding copyright ownership: Who owns the copyright in a BIM model? What rights do collaborators have to use and modify the information in a design made using a BIM model?
In Canada, the Copyright Act sets out a legal framework for copyright ownership, that can be modified by contract. Automatic copyright protections exist for many original artistic and literary works, subject to exceptions such as designs for certain mass produced articles. Artistic works cover many AEC work products, such as drawings, plans, photographs, models, and architectural works. There can also be multijurisdictional issues for international projects, but this article will focus on Canada.
Copyright owners have the sole right to reproduce a protected work. The first owner of the copyright in a work is the author, subject to certain exceptions. One such exception is where a work is created in the course of employment, the employer may be the first owner of copyright. In the case of works produced by two or more authors, ‘joint authorship’ may exist if the contributions of one author are not distinct from the contributions of others. Generally, in the AEC industry, the architect, engineer, or contractor who created a drawing or model retains ownership of the copyright. If created in the course of employment, the employer—typically an architecture or engineering firm—owns the copyright in the drawing or model. Currently, most employers address copyright and IP ownership in employment contracts. Copyright ownership is also often addressed in contracts between architects and clients, or engineers and clients. These contracts typically specify that the architect or engineer retains copyright in project drawings and documents, and grant clients a license to use the project drawings for the given project.
The use of BIM modelling further complicates issues of copyright ownership in the AEC industry. BIM modelling can involve many different contributors (ie. potential authors for purposes of copyright) working on the same model. Architects, engineers, and contractors, may all add information and components to the same model over the course of a building project. To work effectively, each contributor must be able to use the work of other contributors. Accordingly, BIM projects typically rely heavily on contracts to manage the rights and responsibilities of each party involved, including copyright ownership and limited permissions to use the copyrighted work.
The Institute of BIM in Canda (IBC) has created protocols and standard form documents to address copyright ownership issues, among other issues. For example, the IBC 100-2014 Contract Appendix was created to be appended to standard form construction contracts, and provide information regarding industry best practices for the management and implementation of BIM modelling. The Contract Appendix aligns with the typical intellectual property provisions in design services agreements which were developed prior to the advent of BIM. For example, the RAIC Document Six client-architect contract stipulates that the architect retains copyright for the design, drawings, and work products and the client is granted a non-exclusive license to use these documents solely for the specific project, so long as the architect has been fully paid. More recently developed standard form contracts, such as the CCDC 31 (2020) contract between owner and consultant, continue to provide that the consultant reserves the copyright to their instruments of service, while the client will have a non-exclusive license to use such instruments solely for the purpose of constructing, using, maintaining, altering and adding to the project if the consultant has been paid.
Many of the standard form contracts used in the AEC industry specify that if the BIM is used, and the IBC Contract Appendix is appended, copyright for the model and model elements shall be as set out in the Contract Appendix. These contracts include the RAIC (Royal Architectural Institute of Canada) Document 6 used by Canadian architects and their clients, and several of the CCDC (Canadian Construction Documents Committee) contracts used by owners, contractors, consultants and other project parties.
The Contract Appendix states that copyright in each ‘Model Element’ (component part of the model) remains with the author who developed and contributed it to a model. Each author grants a non-exclusive license to each of the project participants to use the model for design and construction purposes for the project. The license includes the right to alter content of a copy of the model. Further, the Contract Appendix specifies that each model element author grants the Owner (typically the party commissioning the project) license to use or alter the models for the sole purposes of maintaining, repairing, altering and adding to the project for the life of the project. Once construction of a project is completed, the Owner still has its license to use the model for operations and maintenance, but cannot repurpose others’ copyrighted material on another project without permission from the model element authors.
Use of an author’s model element in the event of non-payment is typically addressed by agreements such as the Contract Appendix, in that access to that model element can be revoked if fees have not been paid to the specific consultant. This issue was dealt with in the UK decision of Trant Engineering Limited v Mott MacDonald Limited, where a dispute had arisen between the design builder and the engineer over scope of services and payment. Mott MacDonald denied Trant access to the servers hosting the BIM. Trant applied for an interim injunction arguing that without access to the BIM, the project could not be progressed and serious additional costs and delays would be incurred. The court ordered Mott MacDonald to make available the BIM but also required Trant to pay a disputed amount into court pending resolution of the dispute.
This issue of use has not made its way to the Canadian courts yet, however with the rise of prompt payment legislation and statutory adjudication across the country, any disputes over payment and access to BIM will likely be resolved efficiently.
It is important to keep in mind that parties are free to amend or modify the Contract Appendix, and can enter into additional contracts to protect their rights.
The issues that accompany use of BIM software, highlight the types of copyright ownership issues that can arise when working on collaborative building projects. As the use of collaborative software in the AEC industry increases, it is important for participants in collaborative building projects to identify their ownership rights, and ensure their copyright is protected.
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