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KMU-Magazin Nr. 06/07, June/July 2021 Legal aspects of digital building and data protection

BIM is the abbreviation for Building Information Modeling. According to the Swiss Society of Engineers and Architects (SIA) leaflet "SIA 2051:2017 Building Information Modeling (BIM)”, BIM is a method that uses digital building models. Models are databases of information about the building and its immediate landscape. The BIM method supports collaboration and data exchange between all stakeholders throughout the entire life cycle of a building.

Working in phases

As SIA understands it, the BIM method is not about digitally mapping a building in as much detail as possible. Rather, the BIM method is based on the idea of preparing and using data in accordance with the respective project goals and making it available to other project partners. If used correctly, the underlying data models allow work to be carried out in a phase-appropriate and audience-appropriate manner. The German Institute for Standardization e.V. (DIN) describes the BIM method as the complete digitization of the planning, execution, and management processes, use and dismantling phases of buildings. The core element is a digital model of the planned building, to which all information on the components is linked in order to construct and operate the building and to dispose of it or reuse materials at the end of the product life cycle.

BIM method and data protection

The BIM method thus includes a comprehensive collection of digital data relating to the entire life cycle of the building concerned. Data includes illustrations and information about facts and processes that exist in the form of certain signs and symbols on determined data carriers (en.wikipedia.org/wiki/ Information#Related_Terms, last visited on 19.4.2021).

In the case of digital data, for example, this is stored on a hard disk. Information can be obtained from the digital data. Information is knowledge that is tied to a specific purpose and that is used when acting with regard to set goals. Different information can be obtained from the same data. The terms information and data are thus closely related, but not congruent (de.wikipedia.org/wiki/Information#Related_Terms, last visited on 19.4.2021). With regard to the legal qualification of data, the question arises as to who owns it and how it is legally protected. In the case of personal data - i.e. all information relating to a specific or identifiable person (Art. 3 lit. a FADP) - reference can primarily be made to the Federal Data Protection Act. This law aims to protect the privacy and fundamental rights of persons about whom data is processed.

Technical data

In relation to the BIM method, however, much of the technical data that does not constitute personal data is of importance. This is not covered by the FADP. Data also does not represent an object in the legal sense, since according to SME Magazine No. 6, June 2021 legal doctrine it lacks the presupposed corporeality. An object can therefore only be a material object with mass. This is not the case with data, which is why, according to prevailing legal doctrine, there is no property right in data (see here on Gianni Fröhlich-Bleuler, Eigentum an Daten?, in: Jusletter 6 March 2017, S. 5). However, technical data enjoys copyright protection to a certain extent. Data and data sets as parts of the work can enjoy copyright protection if they are intellectual creations with individual character (Art. 2 para. 4 URG). However, mere facts, such as laboratory and research data as well as measurement results, actual events and news, data on the physical environment or natural phenomena are not protected (see Gianni Fröhlich-Bleuler, Eigentum an Daten?, in: Jusletter 6 March 2017, S. 4). In view of the specific situation regarding the handling of data, it is advisable in any case to clarify the handling of data together with the contractors when applying the BIM method.

Solutions

The Coordination Conference of the Construction and Real Estate Bodies of Public Builders (KBOB) has already done extensive preliminary work on the handling of data when using the BIM method (www.kbob.admin.ch/kbob/de/ home/themenleistungen/digitales bauen.html, last visited on 19.4.2021). KBOB recommends that public builders regulate the use of data when applying the BIM method as follows:

1. At the beginning, the rights of use are generally granted so that the data can be used by the involved parties for the specific project: The client and the contracted party grant each other the right to use all data that is used for the services included in and/or underlying the services referred to in Section XX above for the purposes of the project referred to in Section XX above (hereinafter referred to as the "Project").

2. After that, the right to free use of the data is specified:

a) Data means all electronic data, in particular also editable vector data, insofar as such data is included in and/or forms the basis of the services pursuant to Section XX above. If required for the purposes of the Project, all such data shall be made available to the other Party unencrypted in the original file format and in editable form (subject to subparagraph b) below).

b) The contracted party is entitled to protect the data of the components planned by himself, which the contracted party keeps in his own component libraries, with technical measures so that these components cannot be transferred integrally into other component libraries. Even in the event of such technical protection against the integral transfer of components, it must be possible to process the components digitally without re-entering the data (in particular in the form of editable vector data).

c) The right to free use of data includes, in particular, the right to modify, process, combine with other data, reproduce, exchange and make available to non-contracting parties for the purposes of the project.

d) The Client shall be entitled at any time to demand from the contracted party all data contained in the Services pursuant to Section XX above and/or on which they are based.

e) The right to use the data freely shall continue indefinitely, even if this Agreement is terminated or otherwise dissolved.

f) The Client and the contracted party shall ensure that they each hold all copyrights to their data. The parties shall have the right to freely use the data that is the subject of the free use of data, and they shall grant each other a royalty-free, irrevocable and non-exclusive right to freely use this data for the purposes of the project. In the event of contradictions, this provision takes precedence over Section 16 of the KBOB General Conditions of Contract for Designer Services.

g) All rights granted in this provision shall be fully compensated by the compensation under this Agreement.

From these provisions of the KBOB, it can be read which questions must be clarified with regard to the data when working with the BIM method. Firstly, the data concerned must be defined. Secondly, any protection mechanisms must be determined. Thirdly, it must be agreed how the provided data can be used.

Fourthly, provisions must be made that apply in the event of termination of the contract. In this context, it should also be stipulated that the client can demand the return of all project data at any time. In this regard, specific escrows could be agreed as further security.

Fifth, it must be ensured that the parties themselves have the necessary copyrights so that the copyrights of third parties are not infringed.

Finally, it must be made clear whether the data is provided free of charge and for an unlimited period of time and whether this provision is exclusive or non-exclusive. To answer these questions it is recommended to keep the specific project in mind.

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