Legal Issues Surrounding the Use of Digital Intellectual Property on Design and Construction Projects (2013)

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CONTENTS I. Introduction, 3 II. Applicability of the Copyright Laws to Building Information Modeling, 4 A. Models as Copyrightable Works, 4 B. Whether the Government May Have a Copyright in Digital Intellectual Property, 6 III. The Transportation Department or Other Designer as the Owner of a Model, 6 A. Designers of Models for Transportation Departments, 6 B. Transportation Departments’ Copyright in a Model, 7 C. Identification of the Owner of a Model in the Contract Documents, 7 IV. Contractual Provisions and Models, 9 A. Maintaining the Separation of Collaborators’ Contributions to a Model, 9 B. Contractual Provisions Regarding Participants’ Responsibility for Models, 10 C. Transportation Departments’ Practices Regarding Access to Models, 11 D. Ownership of a Participant’s Contribution to a Model, 12 E. Exclusive, Nonexclusive, and Implied Licenses, 12 F. Whether the Copyright Act Preempts Contractual or Licensing Controls, 13 V. Protection of Models and Collaborators, 14 A. Liability of Participants for Changes, 14 B. Recording and Archival of Changes, 14 VI. Protecting Models and Collaborators with Disclaimers and Read-Only Files, 15 A. Use of Disclaimers, 15 B. Use of Read-Only Files and Other Means, 15 VII. Use of Digital Signatures, 16 A. Introduction, 16 B. Electronic Signatures in Global and National Commerce Act of 2000, 16 C. Uniform Electronic Transactions Act, 16 D. State Digital Signature Acts, 17 E. Digital Signatures and Security Considerations, 18 F. Transportation Departments’ Use of Digital Signatures and BIM, 19 VIII. Models and Interoperability Issues, 21 A. Identification of Interoperability Issues, 21 B. Transportation Departments’ Responses Regarding Interoperability, 22 IX. BIM Issues that May Limit Copyright Protection for a Model, 23 A. Copyright in Original BIM Models and in Derivative Models, 23 B. Noncopyrightable Elements of Models, 26 C. The Effect of the Architectural Works Copyright Protection Act, 28 D. Fair Use of a Model, 28 E. Proprietary Rights in a Model, 29 X. Whether Model Is a Trade Secret, 30 XI. Disclosure of Models Under Public Information Laws, 31 A. Federal FOIA Issues, 31 B. State Public Records Disclosure Laws, 31 XII. Discussion of the Transportation Departments’ Other Responses to Survey Questions, 35 A. State Statutes or Regulations Applicable to BIM, 35 B. Identification of BIM Software Used for Transportation Department Construction Projects, 35 C. Other Issues or Problems Experienced by the Departments Using BIM, 36 D. BIM Specifications in Bid Documents and Contracts, 37 XIII. Conclusion, 37 Appendix A: List of Agencies Responding to the Survey, 39 Appendix B: Survey Questions, 40