Most people involved in a construction or engineering project, including developers, contractors, consultants and so on, will know about the importance of copyright material. By this we mean drawings, plans, written documents, photos and even the finished building or project itself.
Copyright material will be used at each and every stage of a project: construction, operation, repair and demolition may all require, for example, the architect’s plans. In addition, a variety of parties may need to use the material.
The bottom line is that using copyright material without the copyright owner’s permission is a breach of copyright law. This is the reason for construction contracts, appointments and warranties containing copyright provisions or licences which grant certain rights in relation to the use of copyright material.
But are there other forms of “intellectual property” (of which copyright is but one type) which are relevant to construction and engineering projects? Perhaps it won’t be at the top of the agenda when a new construction project is being conceived, designed or built, but branding and other intellectual property issues can be very important and, potentially, provide sources of revenue.
Gherkins and Cheesegraters
The average person may look at you blankly if you mention 96 Tooley Street or 30 St Mary Axe. However, say The Shard or The Gherkin and they’ll know exactly where
you mean. While The Gherkin, at least, started out as an informal nickname, both titles are now unquestionably the primary way of identifying the buildings and have become firmly established in the public consciousness. Other major developments such as the Cheesegrater (the Leadenhall Building) and the Walkie-Talkie (20 Fenchurch Street) are also likely to become widely known by their catchier titles.
“The Shard” and “The Gherkin” are now both registered trade marks. Registration of a trade mark allows the owner to prevent the use of identical or confusingly similar marks and also creates a proprietary asset that can generate an income stream, through licensing to third parties for merchandising or other opportunities (such
as The View from The Shard, Aquashard restaurant or Weddings at The Gherkin).
As well as distinctive names, trade mark protection may be available for pictorial representations, or even silhouettes, of a building.
Protection is not however unlimited for buildings or projects: for example, in the case of tourist attractions, protection in respect of mementos (key-rings, t-shirts, postcards etc) may not be available, due to the legal principle that traders in the vicinity of such buildings should be free to produce memorabilia.
How does BIM change things?
The advent of BIM means that protection of copyright and other IP rights should be considered afresh: although BIM (level 2) in itself does not really change anything in respect of IP rights or law, the creation and use of BIM will require the use of copyright material. Therefore, copyright licences in the project documentation should now allow for copyright material to be used in BIM.
If and when BIM level 3 starts to be used, this may however signal a need to look far more closely at copyright and other IP provisions. BIM level 3 envisages a wholly integrated model which can be accessed and, presumably, “used” by all members of the project team. This has the potential to throw up concerns such as ownership of copyright in the integrated model as a whole and its component parts.
This is likely to engage the minds of any sub-contractors providing specialist equipment who tend to carefully guard the intellectual property in their proprietary designs. The answer may be to have two sets of documents: one that contains enough information to enable the interfaces between the works packages to be effectively engineered and a second set of confidential documents (such as detailed workshop drawings) that the sub-contractor is not obliged to release and which do not get incorporated into the BIM model.