Smart Cities and Data Interoperability: The Necessary Convergence of Public and Private Sector Standards
By Jean-Olivier D’ORIA
Avocat associé, SMITH D’ORIA
June 15 - 16 2016 saw Nice play host to the annual Innovative City Conference. The city of the future will be one that is innovative, intelligent and connected: it will be a Smart City.
At a time of intermunicipality and EPCIs (Établissements public de coopération intercommunale – French public bodies charged with encouraging intermunicipal co-operation), new technologies are available to both public and private sector bodies, as well end-users. Such technology offers an enhanced world – one that is more easily managed, more accessible and more efficient. The goal of realizing Smart Cities of this kind appears achievable. However, a number of issues have been highlighted that continue to inhibit the wider integration of these technologies in public and private sector administration. In addition to the question of development costs, there is the issue of a digital divide. To date, the solutions developed and presented by engineers – while enticing - appear to overlook two aspects that cannot be ignored if there is the hoped-for paradigm shift is to be successful: the need to integrate both the human and the contractual (or, more broadly speaking, the legal) into the creative processes involved in developing the modelling and into the digital tool itself.
Identifying client needs (whether public or private bodies) is certainly a challenge, since it is not a purely technical issue. Thus, while a private client may look to BIM (“Building Information Modelling”) seeking to develop their project from the planning stage, through to its design, realization, and, ultimately, exploitation, their public sector counterpart may still be satisfied with using technologically-inferior GIS software, into which BIM modelling is not easily integrated.
Format, User, Goals.
These are the fundamental questions to be addressed by all developers in close consultation with the client as well as those parties who will, in time, make use of the model, such as builders, project managers, building operators, and even day-to-day users of the building. For the private user the sole benefit may be the capacity to enjoy smartphone access to extensive data relating to the building or the creation of a highly accessible shared platform. Yet the question of possible benefits is somewhat more complex when one considers other stages of the project and life span of the building (will there, for instance, be a single, combined model or multiple detailed models?), such as its future management and operation. The exact nature of the data to be integrated and how it is to be used will need to be clarified. In this respect, we place our trust in Big Data for the necessary answers!
At the Nice conference, the question of data and operating system interoperability was a persistent feature of debates and presentations. CSTB (the “Scientific and Technical Centre for Building”) representatives have developed a multi-level form of BIM in response to the challenges posed by cities of the future, focusing in particular – in collaboration with Mediaconstruct – on standardization and the development of an interactive platform aimed at VSBs and SMEs, which, let it not be forgotten, constitute the backbone of the construction sector. Meanwhile city representatives mused over the possibility of integrating these models into their own GIS software.
What is more, as we anticipate the development of new digital models, it needs to be recognized that the present age is one in which the pace of scientific progress and development in digital modelling technology often far exceeds the pace at which it is possible to adapt at a human level. Above all, it is the human element that needs to be reintroduced into the thought process. In the present age, almost anything is possible thanks to technology. Yet, it must be asked: for what purpose is the technology being used and is there an improvement to daily life?
As such, determining the purpose of the digital blueprint cannot be done without considering the way in which the final model will be put to use, whether that is by a public or private body. That, perhaps, is the central and most fundamental question, unless it is decided to hand over management of the model to some future artificial intelligence - which is itself not beyond the realms of possibility.
Cost control; risk anticipation or mitigation; sustainable management of equipment and natural resources; integrating the project into the urban fabric: there are numerous factors that could lead to the development of a digital model to assist with the management of a public- or privately-owned asset. At the outset, decision-makers will, of course, see only the cost of their investment. Such costs must be counterbalanced by the ability to guarantees improvements in both management and risk anticipation, thereby demonstrating a return on their capital investment. It will be necessary, too, to assess staff training levels and digital budgets at each head of public spending, so as to enable services to be brought together towards the same model.
There is also the question of the Information Manager, whose responsibility it will be to ensure the model’s coherence and to facilitate the standardized and, if possible, straightforward use of the model by all users. The technology, let us remember, is not an end in itself, but a tool made available to assist human development. The aim is to simplify, rationalize, and render more secure both human activities and the data used to achieve this goal.
The lifespan of buildings largely exceeds that of humans. As such, the memory of a building is intended to be lasting. This is linked to the building’s integration into the urban landscape and the desire for sustainable development and resource management. The notion of the Smart City is seen as an extension of the ‘Agenda 21’ sustainable development action plan adopted by many communes and regions around the world. Where this is the case, the implementation of a Smart City Agenda would, therefore, clearly be justified.
The Digital Divide: A real risk
Without caricaturing BIM and GIS as simple fads, their development in an anarchic, uncoordinated fashion risks exacerbating the digital divide – already present and real – at both a regional and commercial level. This divide is not new in the working world. Yet it is striking to see that, as digital
modelling is applied more widely, in both the public and private sectors, the divide is at risk of extending the level of the individual to a more global level. In the public sector, while cities such Lyon or Nice are showing themselves to be pioneers in the development and implementation of new urban solutions, what can be done about the other regions and mid-sized cities that lag behind? Not to mention small cities? The principle of intermunicipal cooperation, reaffirmed by Law no.2015-991 of 7 August 2015 on Territorial Organisation of the Republic (the so-called ‘Loi NOTre’), sets out an initial – albeit weak – response to the increased risk of a technology gap. This divide, let us not forget, often goes hand-in-hand with budgetary issues and the consequent search for new sources of finance, which demands that there is a return on any investment. Meanwhile, the same divide can be seen in the private sector, from the architect through to the client. There are actors who have started, those who are just getting underway and then there are those actors who are lagging behind, imagining that current solutions are unlikely to be lasting, poorly-adapted to the specificities of the French system, or are simply too complex to implement. There is much to be discussed on that front… and it serves little purpose to compare the French situation with the progress that has been made in the Anglo-Saxon world.
What does the lawyer need to know?
And where does the lawyer fit into all this? Has technical progress outpaced thinking on the necessary legal framework? As with questions that have been raised at interprofessional meetings, it seems valid to consider in particular issues surrounding data ownership, the responsibilities of data providers and data usage, without forgetting the IT problems.
Generally, IT will be dealt with on a contractual basis and there will, of course, be a focus on using open, exportable solutions. Nevertheless, they will be the intellectual property of the creating party. This point must be addressed in the contract, which can be done through relatively standard, well-known methods (operating licenses, rights management, collaborative solutions, etc.).
Data ownership raises a number of legal issues, in particular with regard to the proprietorship of information on the finished product and the construction methods used, restrictions on disclosure of this information, and the creator’s rights over their architectural creations.
In respect of industrial products and construction methods, it will be for the manufacturers and/or industry bodies to develop norms that allow both the products and the methods to be digitalized. Without a catalogue setting out such norms, data interoperability and the open-sharing of data are never going to be achieved. Indeed, it is only by reference to such a library that it will be possible to realise a digital model that is a useful, accurate component.
This inventory stage completed– an important one for manufacturers – there will come the question of deciding what content is to be shared openly, along with the delivery of the product code. It is at this point that it will become clear where the limits lie in respect of the parties’ willingness or otherwise to disclose their trade secrets and the technical minutiae of their products in sectors that are both highly competitive and plagued by counterfeiting activity. The risk is sizeable and the files produced will probably be little more than a simple, descriptive advert, containing little in the way of precise data due to the fear among some manufacturers of losing the competitive advantage that justifies their R&D activities.
Once the component parts are assembled and integrated into the model, the issues of architectural creation and the ownership of the intellectual property rights of the overall creation become relevant. On this front, there are no major legal hurdles: assignment clauses allowing the exploitation and
reproduction of the intellectual property will resolve any difficulties. It should be noted in passing that, thanks to the digital model, the inalienable rights of the creator (notably authorship and respect for the integrity of their work) will certainly be better protected in future than is possible at present, where the traceability of some intellectual property leaves much to be desired. Good luck, for instance, to those seeking to trace the architect behind an unsigned, unlisted building dating from the 1960s! Architectural reproduction rights will also be an issue for urban planning authorities and their GIS-based approach, which are dealt with by the law in a similar manner to photographs taken for the purpose of promoting tourism or those that are taken in an open or urban setting. That is, as soon as a model provides sufficiently detailed information on an identifiable building, there will necessarily be questions of reproduction rights, without even mentioning the question of image rights in relation to the property. The relevant factors will be the level of detail and the degree to which identification is possible from the model – nobody holds the property rights over a simple structure rendered in 3D. What counts is the detail of the 3D image.
A digital model, accurate and well-used, will be an invaluable tool for insurers in terms of the exploitable data that it offers, whether in the context of a building’s construction or its future use. It is these areas more than any others on which the model can provide information, yet the model will also provide useful information on the work of architects and offer greater insight through the entire life cycle of a project, from the construction phase, to materials used and product information sheets. Furthermore, from a construction perspective, the model will allow “Features Capable of Giving Rise to Joint Liability” (EPERS) to be identified, or the identification of basic features of standardized equipment. Data analysis will also allow recurrent defects to be better understood, as the automotive industry has been able to do in respect of certain vehicle models. As such, one consequence for the construction industry will be a wholly new approach to the building process, with the success of the model being dependent on the collaboration and commitment of the participants, who will be classed and assessed by insurers according to new criteria that emerge through the digital model. There is no doubt that the rise of Big Data and file systematization will certainly save valuable time for insurers, rendering the entire claims process quicker and more efficient. There will also be savings in terms of administrative costs at a time when construction disputes pose, for many, the difficult challenge of balancing human costs with the cost of dealing with claims.
At the construction stage, the development of a standardized digital model that will determine whether a building permit is granted is no longer a figment of the imagination. Without doubt, it is a fast-approaching reality for urban-planning bodies. By being able to project the building into the urban environment, it is possible to better assess how it will fit into the space, while one can also ensure that the building complies with local urban-planning regulations. Furthermore, it will facilitate access to greater information on third parties and enable discussions should any adjustments to the project be considered necessary. The model’s usefulness to both future owners and tenants is equally clear. Each will be able to use and update that part of the model which is given to them, in order to ensure the durability of the building and its continued positive interaction with the wider urban environment. Ultimately, then, the model is in the process of becoming a truly polymorphous tool, capable of meeting the needs of different actors across the same sector, assisting with gathering information that is both public and freely available, for the benefit of both administrators and those that they manage.
User training will be key to the success of the system and well-tested methods from the construction sector will be applied- even if it means challenging particular national practices - so as to impose standardized procedures on a global level.
This is merely an initial overview of the questions facing lawyers as digital modelling continues to develop. The models offer not only a glimpse of the cities and buildings of tomorrow but of an interconnected world in which every creation – material or intellectual – will boast a digital counterpart.
A new, collaborative world is in the making. A work-in-progress of enormous scale and potential, it is replete with equally vast challenges that must be confronted!