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Legal Research Digest 58 national Cooperative highway researCh program March 2013 TRANSPORTATION RESEARCH BOARD OF THE NATIONAL ACADEMIES legal issues surrounding the use of digital intellectual property on design and construction projects This report was prepared under NCHRP Project 20-6, âLegal Problems Arising Out of Highway Programs,â for which the Transportation Research Board is the agency coordinating the research. The report was prepared by Larry W. Thomas, The Thomas Law Firm, Washington, DC. James B. McDaniel, TRB Counsel for Legal Research Projects, was the principal investigator and content editor. the problem and its solution State highway departments and transportation agen- cies have a continuing need to keep abreast of operat- ing practices and legal elements of specific problems in highway law. This report continues NCHRPâs practice of keeping departments up-to-date on laws that will affect their operations. applications The development of building information models (BIM) on construction projects has increased over the past de- cade, and use of BIM on highways, bridges, and complex interchanges is on the rise. Some of the beneficial uses of BIM on transportation design and construction proj- ects include acting as a repository for project informa- tion, comparing various scenarios, evaluating impacts of changes on budgets and schedules, visualizing complex geometry, considering environmental impacts of various design options, and more. The use of BIM and the shar- ing of the digital model also encourage the contracting parties (i.e., owner, designer, and contractors) to work together more collaboratively and to share and jointly use the model. However, BIM usage has created new legal challenges that were not previously present in the paper-based de- sign and construction process. The unique legal aspects of sharing digital information and apportioning the asso- ciated risks needs to be addressed to aid agencies as they expand the use of BIM. The digest includes: 1) a discussion of legal questions concerning who owns the model; 2) identification of who should be allowed to update the model; 3) a discus- sion concerning when and to whom the model should be distributed; 4) identification of interoperability issues for software developers and identification of related legal issues; 5) identification of liability various participants have for changes to or errors in the model; 6) discussions of copyright protection, nondisclosure agreements, trade secrets, and public information disclosure laws; and 7) discussion of protection of digital intellectual prop- erty through the use of disclaimers, read-only files, and digital signatures. The objective of this digest is to develop an under- standing of the previously mentioned legal issues sur- rounding the use of BIM on transportation design and construction projects. The information in this digest should be useful to transportation engineers, attorneys, contract administrators, construction designers, construc- tion contractors, construction managers, contract admin- istrators, agency data personnel, and financial officers.
