Excellence in Engineering

Public sector & SMEs should work together to protect consultants IP

Monday, September 12, 2016
By Steve Hale, Managing Director, Crofton Design


One of the central tenets of BIM is that it facilitates collaboration to encourage creativity, efficiency and accuracy and, yet, some parts of the public sector as an unexpected consequence of new contract clauses are doing their level best to stymie that.

On a couple of occasions in recent months, as an SME building services and structures consultancy, we have had to walk away from public sector contracts because the client has sought to take ownership of our intellectual property.

As Government’s campaigns encourage the adoption of digital technologies across the industry, we are increasingly seeing the benefits of BIM; so there is a real need to also encourage public sector procurers to be sympathetic to SMEs’ needs to protect their intellectual property if we are to sustain the digital construction momentum. 

Generally, most documents whether electronically or paper produced will be protected as artistic works under the Copyright, Designs and Patents Act 1988. In this case, the copyright generally vests in the author of the work rather than the party that commissioned it.

Of course the challenge is in collective sharing of building data on a BIM project which in practical terms makes contractual agreements relating to copyright more complex because it involves a larger number of parties.

Where there is a number of consultants contributing to BIM models data and where some of it may be commercially valuable, there is a greater possibility of copyright infringement.

But with assistance from legal professionals, this shouldn’t be beyond the wit of all parties to find a satisfactory solution.

If not tackled in earnest, there is a real danger that clients might develop a habit of taking ownership of our intellectual property which would turn on its head decades of [arguably wiser] convention, whereby we retained the intellectual property within our design and gave the client a licence to use that intellectual property for the purposes of that project and that project alone.

Unfortunately, one of the major problems with the way some public sector clients operate lies in the lack of understanding of our business & risk model: As consulting engineers our business models are predicated on the basis that we get paid on a project by project basis.  

If we design a template school and it is built and then the local authority decides to use that template for say 10 other schools on different sites, we get paid only once rather than for each school which means our business model falls apart completely. 

Moreover, if within 12 years of our liability period, the authority identifies a latent defect within that design we don't have an insurance risk associated with just one school but with many schools of the type that the authority has decided to build using our intellectual property.

The advice from our insurers in this scenario is that the insurance risk is not quantifiable and therefore that clause is not insurable.

As a result, in recent months we have had to withdraw from a tender for one NHS contract because there is a potentially unlimited liability.

Rather depressingly when we were in a consortium with a tier one international contractor, it decided to accept the risk, whereas we were unable to and had to have it removed from our contract.

We have heard through the Association for Consulting and Engineering that other large multinationals are seeing this type of clause more regularly and are finding that to get the work they have to accept, which is in our view, unreasonable risks. SMEs of our size just cannot accept those risks.

Thankfully we haven’t seen any move in this direction from the private sector. But the upshot of all of this is that rather than advancing standards and promoting innovation, these practices foster mediocrity and completely defeat the government’s aims and aspirations for a digital construction in the UK.

It is clear to me that working closely with and encouraging the public sector to work to the original system of accepting licences to use the intellectual property of their consultants is a more judicious approach; otherwise all the positive steps that BIM brings in driving efficiency and innovation will be wasted.

 

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