Copyright has no place in Architecture: Part III - Collaborating with Others

Welcome back to my thoughts on copyright and architecture. Here's a link to Part 1 and Part 2 in cased you missed them. Continuing on my last two posts, this topic is collaboration and Copyright law. 

Let's review section 3(1)

copyright, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right

every architect or engineer that uses an underlay is committing a copyright infringement

Even before the days of BIM, consultants have been sharing CAD drawings and even underlays of hand drawings for the purposes of coordination. This is a copyright infringement. Absent any agreement to the contrary, every architect or engineer that uses an underlay is committing a copyright infringement each time they reproduce the work or any substantial part thereof in any material form whatever. That's intentionally a very broad piece language.

Design and construction is generally no longer a task performed in a silo. Or perhaps a more accurate statement is that it should no longer be a task performed in a silo. With more progressive procurement models emerging, including Design Build, Construction Management, and Integrated Project Delivery, the sharing (and reproduction) of work is essential. This industry should not be a barrier to that.

The response by professionals that I hear most often is that they want to be paid for sharing this work product. They don’t think it’s fair for someone else to gain an advantage and be more profitable on the back of their work. I couldn’t disagree more. It requires no additional effort for me to share my work product. Architects and their consultants already do this - but now there are new players at the table who also need this data to do their jobs better. 

Here’s how I look at it. If I’m willing to share my product, that will likely be reciprocated in some way down the road. By providing these documents to project partners we are simply making the process more efficient. In the end, everyone is more profitable because we are able to collaborate. This is the sort of open source culture that has allowed other industries, like software development, to grow rapidly. In addition, the client will be thrilled with my involvement because the project went smoothly. Bar none, this is the best business development you can do.

Moreover, professionals contend that sharing this electronic data exposes consultants to additional liability. This is because they believe that the electronic data will be used to identify errors and omissions or lead to deviations from the official contract documents. Again, I couldn't disagree more. 

This workflow in fact reduces liability substantially. Using electronic data in native file formats enhances coordination. This is one of the most prevalent areas of professional liability claims, change orders, and unhappy project teams. Let’s be honest - if there’s an error or omission in the work, it will eventually come to light. Why not try to find it as early as possible so that it can be fixed. Moreover, at the end of the day, the contract will make it clear what the binding contract documents are. If anyone deviates from the contract documents, they are doing so at their own risk - and most licensing agreements make that clear. What I find most ironic is that contract documents are produced so that they are legible as 2D documents. Deviation from what’s on a drawing is necessary to actually build a project. So I belong to the camp that anything I can do to help with that deviation will help me avoid a pile of RFI’s.

As discussed in the previous article, consultants would not be able to reproduce this work in any event unless a license has been granted to them to do so. In effect, the whole consulting industry would collapse. No consultants would be able to work together because none would have the right to reproduce another's work. It would be absolute anarchy to construct anything in this environment.

Compensation is not justified. This is simply a way for all consultants to do their work better. You're not doing anything additional (unless a contract requires) and you're simply serving the greater good by sharing your native electronic formats. Moreover, if something is missed because documents were not shared, you might actually be more liable for something you ought to have known.

Don't believe me? Let's return to the issue of increased liability. As of the date of writing this article, I'm only aware of one published decision dealing with the sharing of electronic data in this new BIM world. That's not to say other claims have not been made, but that the only authority we have before us are the published ones.

That authority was in the UK decision of Trant Engineering Limited v Mott MacDonald Ltd [2017] EWHC 2061. In that decision, the Court granted an injunction allowing the aggrieved party to access the digital documentation that was available for the project. The fault was with the party withholding that information. I would suggest that this case suggests that if you have access to relevant digital information that another party can rely on for the purposes of fulfilling a contractual obligation, the Courts may suggest that you're obligated to share that information.

There is certainly nuance to this case, but I would submit that industry in Canada (and worldwide) should avoid this eventuality. Share all project documentation in its native format so that work can be done better. This is not limited to consultants, but also contractors, trades, and owners that seek to rely on this digital documentation beyond the delivery of the initial services.

The result will be a more satisfied client, a better project delivery, and a more successful project. Many consultants try to shirk responsibility by saying they’re only responsible for design intent. One could write a whole article on what design intent means, but for our purposes, let’s distill it down to this: putting forward a plausible solution on how you intend for something to come together. 

Sharing electronic data and encouraging the input of everyone will help bridge the gap between design intent and practical construction.

While it can be argued that this is in fact where the consultant’s responsibility ends, design intent does not mean that the design can lead to an impossible solution. Architects are still the coordinating consultant. This means being aware of the realities of construction and not chalking up issues to construction means and methods. Sharing electronic data and encouraging the input of everyone will help bridge the gap between design intent and practical construction. Most importantly, it will avoid those impossible design solutions. 

This article is provided for general information purposes only and does not constitute legal or other professional advice of any kind. Readers are advised to seek specific legal advice by contacting their own legal counsel. Roddy Handa and holo-blok Architecture does not warrant or guarantee the quality, accuracy or completeness of any information in this article. The content should not be relied upon as accurate or fit for any particular purpose.

Roddy Handa is an architect and lawyer who specializes in digital project delivery. He is the key founder of holo-blok - a collection of architectural problem solvers specialising in building solutions.