IP – it is not all yours, get used to it

When discussing BIM with those yet to take it up the topic of Intellectual Property invariably comes up. It is so important to them it comes across as a major reason they are not using BIM (although I suspect it is more of an excuse).

For some reason BIM authors (architects, engineers, etc) think that because they create the initial BIM information they have the right to full control and to charge for the BIM model throughout the life of the building.

Then on the other hand we have contractors and owners who believe, because they are paying the authors, that they have absolute rights over all BIM created to do as they please with it.

IP and BIM PROCESS

One of the tenets of BIM is that all information is contained in one place; the BIM model (which may be an amalgam of several BIM models). And that all parties have access to this information so everyone is working on the same, up to date, information.

One of the effects of this is that there can be no duplicates of the same information.
The architect schedules doors, the hardware supplier adds to that schedule, they don’t create their own. The architect doesn’t model ductwork, they use the mechanical engineer’s model.

So for BIM to work at all project participants must not only have unrestrained access to each other’s BIM, they are not allowed to create their own version of some-one else’s.
If any party tries to restrict access the whole process starts to collapse.

However access doesn’t necessarily mean unfettered control. This is still a place for IP rights.

IP CONCERNS

One of the problems discussing IP is that often people are talking about different things. They have different reasons for, or place more emphasis on, particular concerns.
But even then I don’t see much mileage in these concerns, certainly not enough to withhold information.

THEFT OF EFFORT

The old “why should I give away my work for free” argument. It has the appearance of taking the moral high ground but has a number of flaws.

Money is only one form of compensation. Barter is another. In the BIM context if everyone shares everyone benefits. For example allowing the quantity surveyor to directly measure from your BIM model means more timely estimates reducing the risk of you doing unpaid abortive work when the estimate blows the budget.

We work in a market economy, just because you place a dollar value on what you have produced doesn’t mean others will. There is little point with-holding something from others that has no actual value, or a lessor value, to them. All you do is damage your reputation, and possibly the chances of future work.

And lastly the reality of the industry. If information is withheld that is required contracts will be changed to ensure that information is made available. The danger here is contracts invariably overreach, they are more onerous than they need to be. We are already seeing this with contracts that take all IP rights away whether justified or not.

THEFT OF IDEAS

BIM doesn’t make any difference to IP rights over original ideas which are already covered by copyright law.
Does the possession of a BIM model make it easier for some-one to copy your design, to break the law? In a sense, because BIM contains more information that is structured more efficiently than traditional product like CAD files, spreadsheets and drawings. But the theft itself is no easier. In fact it could be argued it would be more straightforward to identify a stolen BIM model due to the uniqueness of how data is arranged, as to compared to a drawing consisting just of lines and text.

There is also a belief among some that every idea they come up with is unique and universally cherished.
That parametric door that can represent nearly every possible type of door is just as valuable to the contractor who just wants to know what each door is. The clever equipment schedule that you believe gives you a competitive advantage so will be copied by everyone who sees it because it is so brilliant.
Your innovative work practices are important to you but are rarely suited to anyone else.
Experienced BIM authors know that components sourced from elsewhere are never exactly what is needed to fit their own work practices. Many a time I have spent more effort trying to rework some-one else’s component than it would have taken to recreate it from scratch.

LOSS OF CONTROL

Some have concerns that if they provide their work in an editable format (whether BIM or CAD) some-one will make changes to their work without their knowledge and/or permission.
To make changes to work attributed to some-one else is fraud and clearly illegal. To withhold your work is overkill and the equivalent of never getting out of bed to avoid anything bad happening.

Some believe if  they maintain control they are in the best position to ensure their intellectual effort, their design, will be carried through in a way that they will be happy with. That if they are not in full control others will make poor decisions compromising their brilliant ideas.
This argument is hard to convince owners and contractors as they expect the documents you provide as part of your service to contain enough information for your design to be fully realised. If you argue otherwise they just see it as evidence your documents, and your design, is deficient and you intend to ‘fix it up’ later at their expense.

There is also a belief that with a copy of an original work contractors or owners are free to get others to take over the job. Again most jurisdictions have laws that already cover this, and in any case possession of your IP is unlikely to be the deciding factor in your client making this decision.
It ignores the fact that BIM output is the result of expert knowledge and professional responsibility. It is not like a set of Ikea instructions anyone can use. Only very cavalier professionals would take on the responsibility of some-one else’s work without spending a significant amount of time checking it.

BIM IP APPLIES TO

IP applies to many things but this post is about BIM. The ‘products’ of BIM that IP may impact include:

  • Whole BIM model (federated or integrated)
  • BIM Model contribution (as separate model or co-author)
  • BIM model components (e.g. equipment, doors, etc)
  • Editable drawings from the BIM model (e.g. CAD files).
  • Editable schedules from the BIM model (e.g. Excel files).

Note that the last two items existed before BIM. Generally BIM has not created new IP issues, just extended existing ones.

RIGHTS

There is often a misconception that obtaining IP protection means complete ownership, giving full control to the ‘owner’. This is not correct, IP is a safeguard, not a title to ownership.
IP applying to a ‘product’ is managed by assigning ‘Rights’ to it, who has the right to do what with it. Often IP discussions are really about Rights, not the application of IP per se.

Rights are something authors should be concerned about. It is where the risks and rewards lie.
What are the types of Rights people are concerned about when it comes to BIM?

The right to:

be identified as author.

Sometimes called ‘Moral Rights’. This is covered by IP law in many countries and does not change with BIM.

decide what uses are permitted.

An author should be able to stipulate what their model is suitable for, or more realistically stipulate what it has been created for and let others make the call if it is suitable or not (authors don’t necessarily know what other professionals require so how could they be definitive about what their BIM is suitable for?).
But this shouldn’t extend to complete denial of access for uses not permitted. Firstly, not all possible uses can be predicted, and secondly even a model unsuitable for a particular use may still be of some use as long as its limitations are known and acknowledged.

The best way to deal with this Right is for authors to stipulate what their BIM model has been created for (i.e. their particular uses), and an affirmation that it contains all information they, as authors, are engaged to produce.
For example an architect would say their model “contains sufficient information to describe the materials and location of those materials”. What they shouldn’t say is their model is “suitable for estimating uses” as it infers they have modelled every material in accurate quantities.

decide who can use it. 

Some believe their ‘ownership’ of their BIM contribution gives them the right to withhold it from whomever they choose. Whilst an author may have a good reason to prevent certain parties from using their work their reasons may conflict with the needs of other project team members and the project as a whole. The outright power of veto doesn’t work in a BIM project.

However it is reasonable to insist you be notified if some-one else receives your work. There may be matters you need to inform other parties about the content and status of your work. An all too common occurrence is contractors providing design professional’s work to sub-contractors that is inappropriate, incomplete, or not reissued when superseded. I have personally experience a situation where the piling contractor was given our documents (architect’s) to put directly in their survey total station, when all our documents had were roughly placed piles for context. They should have been given the structural engineers drawings, but neither ourselves or the structural engineer knew they had been provided with our BIM model.

The usual way to deal with provision to inappropriate parties is to stipulate the work can only be provided to those directly involved in the particular project it was created for. The way to deal with inappropriate use is to define uses that are permitted.

demand payment for its use.

Traditionally only drawings and written material were provided to others, which they referred to but didn’t directly use to generate their work. But a BIM model can be integrated into other’s work, for example running an analysis or directly measuring quantities. Because of this some believe they should get a cut in the obvious windfall others are getting.
But there is no windfall. Everyone is relying on getting the information they require from everyone else, no-one has budgeted to pay extra.

That is not to say there are no situations where you can charge. Certainly if your work is to be used for a different project, or purpose not involving your particular project. But charging project participants is not normal practice. If you intend to do it within your project you need to make that clear at the very beginning of the project, when negotiating your engagement agreement. And good luck with that!

use it for other projects and purposes. 

It is perfectly reasonable for authors to expect their work will not be used for projects and purposes they are not a party to. This is what standard IP covers, and is what is lost when all IP is signed away.
There is no reason for IP to be completely signed away for BIM to work, as long as all parties agree to provide their work to other members of the project team. It is when there is a belief that there will be resistance to this that owners and contractors try and take everyone’s IP via contract clauses.

The best way to fend off attempts to take complete control of your IP is to be accommodating. Show that you will make your work available to all those that will require it for the project.

BE CAREFUL WHAT YOU WISH FOR

But with Rights come responsibility.

  • If you claim authorship you are forever associated with the project.
  • If you dictate what your BIM model can be used for you accept responsibility that it is suitable for that use.
  • If you refuse to provide your BIM to some-one you will be expected to provide good reasons and prove it does not impinge on your obligations to the project.
  • If you insist on the Right to charge for use of your BIM model you take on the responsibility of your BIM model being suitable for the purpose you are charging for.
    In most legal jurisdictions the act of accepting money infers you have provided a useful product, no matter what any written agreement says. You can’t charge a Quantity Surveyor for using your model for measurement and not accept responsibility for it’s accuracy and completeness.

You might consider forgoing Rights you may be entitled to avoid responsibility.
For example forgo the right to dictate what your BIM can be used for and instead provide it on an ‘as is’ basis.

WHAT CAN YOU DO

Always keep in mind that BIM processes require information to be not only shared, but shared in particular formats. That means you have to provide your computer files to others, there is no way around this.
But that doesn’t mean you have to forgo all IP protection. The best approach is to assess whether the rights you want impede the flow of information within the project or not. If they don’t, insist on them, if they do, work out a way to achieve your aim another way or accept it is not going to happen.

Specific advice on IP in contracts and agreements is beyond my expertise so I leave that to others. Some resources:
Designing Buildings Wiki (UK)
National BIM standard – US
BIM / IPD [AUS]

Generally you should expect that each participant retain IP rights over their contribution, and that the rights of others only extend to their requirements for the particular project.

You may have limited control over agreements with others but what you can do is manipulate the data you provide to others. For example sheets and annotation (text and dimensions) are not required in the BIM model you provide when you are also providing drawings and written schedules.

Methods include:

Make recipients aware of limitations:

Have standard written “conditions of use” that can be included in agreements with others and included with all document issues.

Use non-editable file format:

Provide IFC, Navisworks, DWF, PDF etc instead of your authoring software.
(These formats, to varying degrees, allow access to BIM data.)

Remove temptation:

Strip BIM models of all but essential elements and data.

Identify your work:

Embed ownership data within BIM objects.

EXAMPLE REVIT SPECIFIC METHODS

There may be others, but I have used these in the past:

Embed “Conditions Of Use”:
Create a Starting View and put your Conditions Of Use on it.
(Revit always displays this view when opening the file so it is hard for someone to argue they didn’t see it).

Only export the model, excluding all annotation and sheets:
Create 3D view, hide what you don’t want to include, place this view on a sheet. In the Project Browser right click over the sheet and pick Save to New File. Open the new Revit file and add a Starting View with Conditions Of Use.

Delete specific views and sheets:
Create a schedule of views, manually delete views. Do the same with a Sheet List.
Or use an add-in to delete views, sheets, etc.

Make your work identifiable:
Add parameters to all your families that contain copyright information (place as a formula so it can’t be easily edited).
Prefix all your shared parameters with your organization’s acronym.

 

CONCLUSION

Get used to the fact that no-one is using BIM as a pretext for stealing your IP. Others don’t want to own your BIM, they just want to be able to use it.

They want the right to use the model to check if a hole can be drilled without hitting any pipes or wires. Everyone understands use of BIM doesn’t give them the right to construct an identical building somewhere else.

IP is an issue of concern, as it always has been, but not sufficient to block or hobble the use of BIM.
Let’s stop chasing windmills and get on with the real game, making IP in BIM fair to everyone.

The post IP – it is not all yours, get used to it appeared first on ConvertBIM.

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