[Originally published 1st quarter 2006 in arcCA 06.1, “Imbedded Knowledge”]
Author Steven Sharafian, Esq., is a partner in the law firm of Long & Levit LLP, San Francisco. He holds a B.A. in Architecture from the University of California, Berkeley, where he teaches a graduate professional practice course entitled Law and the Design Professional.
Building Information Modeling (BIM) can significantly change the way projects are designed and delivered. As this technology is used and matures, construction industry conventions, protocols and practices will develop. BIM’s legal ramifications will depend in part upon these protocols and the relationships, both working and contractual, that develop among owner/developers, professionals, builders, manufactures, and users. The following is a brief investigation of how BIM might affect a professional’s standard of care and ownership and use of project documents.
Standard of Care
California law judges an architect’s performance against a professional standard of care. When making this evaluation, the law asks what would a “reasonable” architect have done on a similar project under similar circumstances. California law does not obligate architects to guarantee perfection. Errors and omissions are negligent and give rise to liability only if an architect’s services fall below the standard of care. Describing an architect’s documents as instruments of service is intended to clarify an architect’s standard of care; the architect’s documents are not a product being purchased by the architect’s client.
In my opinion, BIM should not change this fundamental, professional standard of care. What constitutes a failure to perform in accordance with the industry standard of care relative to BIM is unknown at this time. Although the professional standard of care is entrenched in our legal system, those bringing claims against professionals will likely view BIM as an opportunity to change the appropriate standard of care. Potentially complicating the application of standard of care to BIM are the numerous contributions to the model by both professionals and non-professionals. Should the law judge each participant’s contribution by a different standard of care? Those making claims against an architect may argue that courts should view the BIM model as a “product“ (such as a car or power tool) rather than an instrument of service. Generally, there is no standard of care issue when evaluating a manufacturer’s actions when it produces a product that causes damage. Manufacturers are strictly liable (i.e., responsible regardless of fault) for the damages caused by their defective products.
Ownership of Documents & Copyrights
Existing intellectual property, licensing, and applicable statutes provide rules to evaluate who can own and use a BIM model and its various contributions. However, construction industry participants can modify many of the rights by written agreement. California case law and federal copyright law generally provide that architects own their instruments of service, and, as the authors of their drawings and designs, own the applicable copyrights. However, architects’ clients often want ownership of the project documents and copyrights for various reasons. It is not unusual for these clients to use contracts to extract these rights.
The type of information contained in a BIM model is potentially more complex and valuable than the information contained in a reproduced set of working drawings. Professional service and construction contracts will generally need to address who owns the overall model, the various contributions to the model and its data, and how the model’s data can and cannot be used. Contract provisions will need to address the model’s administration and maintenance; ownership and use of the design(s) embodied in the model and in the model’s components; software licenses; and rights of modification and reuse. Disputes will arise that raise other questions—what happens if a party is not paid and it suspends its services and the right to use its contributions to the BIM model?
BIM has the potential of fundamentally changing how professionals think about creating and developing designs, producing construction documents, and constructing buildings. BIM encourages and facilitates the flow of diverse information between and among parties. The model encourages, facilitates, and responds to the flow of information. How contributions affect the legal liability of all the project participants is an issue that will be defined first in contracts and ultimately in statutes and case law as disputes are litigated. Unanticipated issues will no doubt arise and present themselves as the technology is used and develops. Many are hopeful that BIM’s technology will reduce errors and omissions and promote greater collaboration in our construction industry.