Ambiguity over the ownership rights of different elements of Australian building works has come to light because of the country’s increased use of BIM, with Beth Cubitt of law firm Clyde and Co suggesting that there can be “difficulties in determining the true author of a part of work, an output or an end result.”
In an article for Lexology, Cubitt poses the question “Who owns what in BIM?”, and argues that the switch from print to digital in regards to design work has brought about many legal changes.
“Traditionally, design documents are paper-based and a party would have copyright in those documents. BIM offers a virtual design platform which will be subject to intellectual property rights, arguably encompassing either or both copyright and design.”
Cubitt goes onto suggest that confidential details of a project may be inadvertently distributed through the 3D model as it is passed around from stakeholder to stakeholder. Those who wish to keep information private should, she says, “consider restricting access to different areas of [the] BIM.”
But BIM doesn’t just add layers to the legal process; it can help it, too. “When it all goes wrong, proving who did what to whom, and when, becomes significant,” writes Cubitt. “Parties may wish to employ systems to trace work carried out in BIM to assist in proving what occurred and establishing causation in the event a dispute arises.”
Litigation is a risk in every building project, in Australia and in the rest of the world, and so Cubitt’s advice is for firms to properly scrutinise the legal issues they’re likely to encounter on each project.