Q&A : Everything you need to know about “BIM”

On the occasion of the attendance of our law firm ALTIJ at the BIM WORLD 2021, on June 23 and 24, 2021 in Paris, we propose you a Q&A to discover this new technology.

I/ What’s the “BIM”?

BIM means Building Information Modeling, it’s a new technology that allows different stakeholders to collaborate in a construction process[1].  

This construction operation makes it possible to share all the information (design, execution, operation, etc.) during the entire construction period.

BIM is not limited to the building sector but is intended to affect the entire construction world.  The principle of BIM is to create a digital model to which the participants in the construction project can have access according to their level of involvement.

For this purpose, there is a classification according to the degree of digital interaction.

A) In the occurance of prejudice, which liability regime should we apply ?

This issue of constructors' liability in BIM is problematic as there is still no ruling on this issue. Indeed, the use of BIM is still too recent and judges have not yet had to deal with this problem. There are also no legal texts governing this new technology.

n these conditions, it seems that the way to resolve disputes is to refer to the rules of common law. If the BIM manager is deemed to be a builder, Articles 1792 et seq. of the Civil Code should be applied in the event of defects and deficiencies affecting the work.

Le texte prévoit que : « Est réputé constructeur tout architecte, entrepreneur, technicien ou autre personne liée au maître de l’ouvrage par un contrat de louage d’ouvrage»[2].  

Builders would then be subject to legal guarantees based on no-fault liability if they are bound to the client by a contract for the hire of work. As soon as the BIM manager is responsible for the creation of the digital mock-up and supervises its creation, his qualification as a builder should be retained and therefore his ten-year liability. This implies an insurance obligation on its part.

1. What if the BIM Manager only has a digital management role and is not involved in the construction?

The role of the BIM Manager may be limited to the pure and simple management of the IT tool and not to participating in the development of the construction.  Under these conditions, his responsibility can only be contractual.  This responsibility corresponds to levels 0 and 1. For levels 2 and 3, the responsibility is more complex because it depends on the facts and the damage caused.

2. What is the responsibility for a level 2 or 3 BIM manager ?

If the level of intervention is very high, then the presumption of responsibility of builders and similar would also apply to the BIM Manager.  This is the case, for example, if he intervenes in the design of the work by assembling the models of the various builders, as he can be assimilated to a builder in his own right. However, in order for the presumption to apply to the builders, they must be responsible for the defects found in the work.  Thus, in order to engage the liability of the BIM Manager, the damage must be attributable to his intervention, independently of any notion of fault.

B) What about data protection in BIM ?

1. What data is exchanged ?

The processing of data throughout the life of a building brings a new approach that creates wealth.  The "digital revolution" lies particularly in the multiplication of uses of data by constantly evolving professions.  This "legacy data"[3] covers several types of data:

• Personal data[4] are subject to specific regulations established at European level and applicable since 25 May 2018[5], which are binding on BIMs (information of the persons concerned, processing limited to what is essential, implementation of the security and confidentiality measures necessary for the preservation of this data, etc.).
• Technical data is data relating to the construction itself (materials, plans, techniques, etc.) including also elements covered by patents, or deriving from specific know-how, methodologies or competences that have a competitive advantage.

While technical data covered by an industrial property title does not necessarily present any particular difficulty as long as the protection has been registered with the INPI or the relevant industrial property office, data not covered by this protection but whose interest lies precisely in secrecy must be given appropriate protection[6].

2. How to protect the BIM database ?

The BIM tool is not limited to the digital model.  The database closely linked to it could be protected by copyright under Article L112-3, paragraph 2 of the Intellectual Property Code, provided that the required conditions are met. Due to the lack of standardisation of BIM processes to date, the criteria of originality and creativity are highly likely to be met to trigger the protection of this right.

The database may also be protected by the sui generis right according to Article L341-1 of the Intellectual Property Code, which states that "the producer of a database, understood as the person who takes the initiative and the risk of the corresponding investments, benefits from protection of the content of the database when the constitution, verification or presentation of the latter attests to a substantial financial, material or human investment. This protection shall be independent of and without prejudice to the protection afforded by copyright or any other right in the database or any of its constituent elements. Protection by the sui generis right implies an assessment of whether or not the required "investment" exists.

In the context of BIM, there should be no doubt as to the qualification of the producer-investor of the database.  While the BIM manager seems to be excluded since he carries out his mission at the request of the project owner, the same cannot be said for certain contributors involved in the construction process. These issues should be approached from a contractual perspective, in particular by drawing up the General Terms of Use (GTU).

As regards the transfer of copyright to the project owner, the key to securing the process will also be found in the contract.

3. What protection for personal data?

In addition to the function of carrying out the construction project, BIM can be used to monitor connected works, particularly for maintenance purposes.

Regulation (EU) 2016/679 on the protection of personal data of 27 April 2016, the so-called GDPR, provides for an obligation to comply with the rules on the protection of personal data, the breach of which is heavily sanctioned.

To this end, the appointment of a Data Protection Officer (DPO) is particularly necessary to ensure the company's compliance with the RGPD regulation.

C) What about Intellectual Property applied to the BIM ?

The new working methods resulting from BIM lead to a separation of the different disciplines by allowing the optimization of business processes[7]. The exchange of information such as patented technology in the context of the construction project does not imply an authorisation to exploit it for the recipients. The legal framework of the project designed to specify the rights and obligations of each party, particularly in terms of ownership of rights, is fundamental.

In various respects, intellectual property law has a role to play in the BIM process via mechanisms such as copyright (whose three modes of creation - apart from individual creation, which does not raise any difficulties – are : (e.g. collaborative work, collective work and composite work) or the right of the producer of the database.

In addition, the mechanism for the protection of business secrecy may be called upon in the context of the exchange of information with a competitive value.

For example, the architect traditionally works alone on the design and is therefore the owner of the related copyright. When two or more protagonists participate in the creative effort, the question of ownership of the rights necessarily arises.

In the context of BIM, which is based on a principle of collaboration between the different actors, if the contribution does not meet the criteria of creativity and originality (e.g. a purely technical contribution), the individual character of the creation cannot be questioned.

Only an assessment of the facts will make it possible to qualify the work and determine the owner or owners and the related rights.

D) What is the situation of BIM in France ?

France, and more particularly the French State, is gradually seizing the advantage offered by BIM. In just four years, France has gone from last place in the European BIM adoption barometer to third place, with more than 30% of real estate projects completed using BIM. The State sees it as a great tool for ecological transition and cost reduction.

If you want to have more information, you can go to this site : https://www.blog-logiciel-btp.com/le-bim-en-france-ou-en-est-on

 II/ What do we mean by "intelligent city"

From now on, we no longer speak of Smart City but of Intelligent City.  A smart city is a city that uses Information and Communication Technologies (ICT) to improve the quality of urban services or reduce their costs. A smart city is an urban area that uses various electronic data collection sensors to provide information to manage resources and assets efficiently.

This includes data collected from citizens, mechanical devices, assets, processed and analysed to monitor and manage traffic and transport systems, power plants, water supply networks, waste management, information systems, schools, libraries and hospitals.

A) What challenges lie ahead ?

First, there is the major issue of data protection in the Smart City.  Indeed, it is a question of urban security and it is essential to ensure data protection in the smart city. Data is used en masse in these cities of the future, so we need to understand why this is important. Data is becoming essential in the economy and is a source of envy.  Therefore, it is important to avoid the risk of cyber and large-scale attacks to retrieve this data and misuse it. Especially since the objective of the use of data by smart cities will be to connect all services in order to save money and increase their reliability and efficiency.

Then, the health issue is becoming more and more important in western societies.  Indeed, in addition to possible viruses or diseases, the question of waves and their impact on health is subject to debate.  There is no evidence that overexposure causes health problems.  Nevertheless, it is necessary to communicate on it and to explain the benefits that it could have on the contrary. Finally, the last issue of smart cities is related to the environment.  Smart cities aim to make the best possible use of energy, which will have important economic repercussions. Indeed, with sensors, it will be easy to save electricity by triggering streetlights as soon as a person passes in the street.

B) What new forms of mobility for these smart cities?

The city of the future means the vehicle of the future. If this statement can be relativized, the fact remains that the progress made in the field of autonomous vehicles is real and will have an impact later on.  By autonomous vehicle we mean a vehicle that is equipped with an automatic piloting system that allows it to circulate without human intervention in real traffic conditions.  Their use would allow to fluidify the traffic thanks to the shared data and would improve the quality of life of the citizens who would not be taken any more in interminable jams.

There are also all means of electric locomotion such as electric bikes or electric scooters and of course electric cars.  All of these means of transportation would have dedicated lanes to guarantee better safety.  There is also mobility by means of rental for a fixed period as is the case for bicycles, with a development for scooters.

III/ What does the new concept of CIM mean?

Stop everything! BIM is becoming mainstream! The protagonist of the intelligent city are thinking big. Indeed, it is no longer a question of ‘Building’ but of ‘City’. Future projects are going to change dimensions. In addition to visualizing a building before its construction, the CIM aims to place this building in a territory, a well-defined environment. It will now be a question of connecting the infrastructure s with the buildings (road, electricity, gas…)). Could this be the culmination of the technology that will democratize the construction of smart cities, making them an economic and social issue ?

Our lawyers, experts in the field of construction and connected buildings and tools, work with you to secure your interests in your innovative projects.

[1] BIM definition, Site JOURNALDUNET : https://www.journaldunet.fr/patrimoine/guide-de-l-immobilier/1488463-bim-definition-et-objectif-du-building-information-modeling/

[2] Site Legifrance : https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006443502/

[3]BIM : nouveaux métiers, nouvelles formations ; Site ARCHIPAD, 4 février 2020 https://blog.archipad.com/bim-nouveaux-metiers-nouvelles-formations/

[4] Le terme «donnée à caractère personnel» peut être défini comme toute information se rapportant à une personne physique identifiée ou identifiable (ci-après dénommée «personne concernée») ; V. article 4 RGPD.

[5] Règlement (UE) 2016/679 du Parlement européen et du Conseil du 27 avril 2016, relatif à la protection des personnes physiques à l'égard du traitement des données à caractère personnel et à la libre circulation de ces données, et abrogeant la directive 95/46/CE (règlement général sur la protection des données).

[6] À cet égard, l’intérêt de s’assurer de la confidentialité des données échangées entre les acteurs du projet de construction est patent (Maître d’ouvrage, BIM Manager, etc.) ; Sur le BIM manager, V. BIM : nouveaux métiers, nouvelles formations ; Site ARCHIPAD, 4 février 2020  https://blog.archipad.com/bim-nouveaux-metiers-nouvelles-formations/; Le BIM manager est un acteur clé de la mise en commun et de la gestion de ces données. Il crée, gère, maintient, sécurise et exploite l’information, et organise et structure la base de données qui en découle, en garantissant le cadre du travail collaboratif des différents acteurs, à partir de la définition du modèle BIM fixé par le maître d’ouvrage. Il doit allier compétence du métier, gestion de l’information et connaissance de la technologie BIM soit des processus de construction virtuelle et de documentation ainsi que la méthodologie et les pratiques d’échange d’information, les formats de fichiers, la compréhension de la mise en place des flux de travail BIM, etc.

[7]Quels sont les avantages du BIM ?- Site AUTODESK , https://www.autodesk.fr/solutions/bim/benefits-of-bim